Com. v. Fitzpatrick, J., III , 204 A.3d 527 ( 2019 )

J-A24016-18
2019 PA Super 46COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH BERNARD FITZPATRICK, III :
:
Appellant : No. 259 MDA 2018
Appeal from the Judgment of Sentence Entered December 6, 2017
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0002534-2014
BEFORE: OTT, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
OPINION BY McLAUGHLIN, J.: FILED FEBRUARY 19, 2019
Joseph Bernard Fitzpatrick III, appeals from the judgment of sentence
entered on December 6, 2017, following his conviction for first-degree
murder.1 Fitzpatrick maintains that the trial court improperly admitted hearsay
evidence and erroneously applied the coordinate jurisdiction rule. We affirm.
The trial court aptly summarized the procedural history and facts 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 [Fitzpatrick] and his wife,
Annemarie Fitzpatrick [“Victim”], down near the shore line of
Muddy Creek. [The victim] was unresponsive, but EMTs were
eventually able to get a pulse and she was transported to the
hospital. A short time later, [the victim] was pronounced dead.
Foul play was not suspected and the family began making
arrangements; [the victim’s] body was sent to the mortician for
embalming.
____________________________________________
1 18 Pa.C.S.A. § 2502(a).
J-A24016-18
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 [the 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 [the victim’s] work email
where she found an email from [the victim] to
‘feltonfitz@gmail.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 [the victim’s] email account.
After viewing the note and email, troopers contacted
[Fitzpatrick] and asked if he would be willing to come in for an
interview; [Fitzpatrick] agreed. [Fitzpatrick] was asked to again
explain what occurred the night [the victim] died; he was never
asked about the note or email.[2]
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
____________________________________________
2 Fitzpatrick made contradictory statements regarding the accident. Initially
he stated to the Emergency Medical Technician on the scene that he found the
victim under the ATV and tried to get her loose. However, he told one of the
investigating troopers that he “searched for the Victim around the ATV and
could not find her, and that it was not until he was later on the phone that
[Fitzpatrick] saw Victim across the creek and then jumped backed into the
water and retrieved her from across the creek.” Commonwealth v.
Fitzpatrick, 159 A.3d 562. 570 n.6 (Pa.Super. 2017), appeal denied, 173
A.3d 255 (Pa. 2017).
-2-
J-A24016-18
homicide investigation with the prime suspect being [Fitzpatrick].
Eventually, troopers discovered that [Fitzpatrick] was having a
non-sexual affair with a woman named Jessica Georg, and was
thinking of leaving his wife for her. When confronted, [Fitzpatrick]
admitted to hiding [Victim’s] phone from the police in an effort to
hide this affair. Troopers also discovered that [Fitzpatrick] would
gain approximately $1.7 million in life insurance if [Victim] were
to die. After searching [Fitzpatrick’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 [Fitzpatrick’s] arrest on March 6, 2014 –
approximately a year and a half after [Victim’s] death.
[Fitzpatrick] 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, [Fitzpatrick] filed on 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, [Fitzpatrick] 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 [Fitzpatrick’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.
[Fitzpatrick’s] trial began on May 4, 2015. On May 13, 2015,
[Fitzpatrick] was found guilty of First Degree Murder, and was
sentenced to life imprisonment on the same day.
Trial Court Opinion (“TCO’), filed September 1, 2015, at 1-4.
Fitzpatrick filed a post-sentence motion, which the trial court granted
and denied in part. The trial court denied Fitzpatrick’s request for a new trial
-3-
J-A24016-18
but granted his motion for judgment of acquittal on the basis that the
Commonwealth presented insufficient evidence for the first-degree murder
conviction. The Commonwealth appealed and this Court reversed the order,
concluding, “[T]he record, viewed in the light most favorable to the
Commonwealth, reflects that the Commonwealth established Victim was
unlawfully killed and that [Fitzpatrick] committed the murder with the
requisite motive and intent.” Fitzpatrick, 159 A.3d at 570. Following remand,
the trial court reinstated Fitzpatrick’s sentence of life imprisonment on
December 6, 2017. He then filed a post-sentence motion, which the trial court
denied. This timely appeal followed.
On appeal, Fitzpatrick raises three issues:
I. Whether [Fitzpatrick] 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 [Fitzpatrick’s] deceased wife, was
admitted into evidence and used by the Commonwealth to
secure a conviction on the charge of murder?
II. Whether the improper admission of inadmissible hearsay
was harmless error?
III. Whether the post-trial motion judge is barred by the
coordinate jurisdiction rule from correcting a mistake made
by a prior judge during the pre-trial process, including, but
not limited to the erroneous admission of hearsay evidence?
Fitzpatrick’s Br. at 4 (suggested answers omitted).
Fitzpatrick’s first two issues center on the trial court’s evidentiary ruling
regarding the admission into evidence of the note and the email. “An appellate
court’s standard of review of a trial court’s evidentiary rulings, including
-4-
J-A24016-18
rulings on the admission of hearsay . . . is abuse of discretion.”
Commonwealth v. Walter, 93 A.3d 442, 449 (Pa. 2014). Thus, we will not
disturb an evidentiary ruling unless “the law is overridden or misapplied, or
the judgment exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias, or ill-will, as shown by evidence of record.” Commonwealth
v. Cooper, 941 A.2d 655, 667 (Pa. 2007) (citation omitted).
Here, the Commonwealth argues that while the letter and email are
hearsay, they are admissible under the state-of-mind exception. See
Commonwealth’s Br. at 29. It claims that, “[t]he admitted evidence was
relevant as to [Fitzpatrick’s] motive, malice, and ill-will toward victim.” Id. at
27.
In contrast, Fitzpatrick argues that “the note and e-mail are classic
hearsay, and none of the carved-out exceptions” apply. Fitzpatrick’s Br. at 21.
Fitzpatrick cites Commonwealth v. Levanduski, 907 A.2d 3 (Pa.Super.
2006) (en banc), in support of his position. Id. at 24. He also notes that “[t]he
Pennsylvania Supreme Court has already correctly asserted that the
declarant’s state of mind in a homicide prosecution is often times irrelevant.”
Id. at 24 (citing Commonwealth v. Laich, 777 A.2d 1057, 1060-61 (Pa.
2001)).
In Levanduski, the trial court admitted into evidence a letter written
by the murder victim. The victim expressed in the letter that if he was killed,
suspicions should be turned on his wife, Levanduski, and her paramour. Id.-5-
J-A24016-18
at 10. The trial court reasoned that the letter was hearsay but was admissible
to prove motive and the relationship between Levanduski and her paramour.
Id. at 10-11. An en banc panel of this Court held that the letter was
inadmissible under many exceptions to the hearsay rule, including the state-
of-mind exception. The Court stated:
Mr. Sandt’s [the victim] state of mind was not a matter at issue
in this case. Only when Mr. Sandt’s letter is considered for the
truth of the matter asserted, does it become relevant, that is
material to and probative of [Levanduski’s] intent or motive to kill
Mr. Sandt. However, when considered for its substantive truth,
although relevant, the letter is incompetent and therefore
inadmissible.
Id. at 19 (citations omitted). The Court ultimately affirmed the judgment of
sentence, concluding that the introduction of the letter was harmless error.
Id. at 22.
Here, the trial court concluded that Commonwealth v. Luster, 71 A.3d
1029 (Pa.Super. 2013), supported the admission of both documents. N.T.,
Motions Hearing at 100. In Luster, the victim made statements expressing
her fear of Luster and that he might do something bad to her. Luster, 71 A.3d
at 1040. Our Supreme Court concluded, “[T]he victim’s statement that she
feared [Luster] and he was going to harm her is admissible because it shows
Luster’s ill will and malice toward the victim.” Id. at 1041. The trial court here
explained that both the note and the email were admissible under the state-
of-mind exception because “[h]earsay that tends to prove motive or malice of
-6-
J-A24016-18
a defendant accused of murder of the first degree is admissible under the state
of mind exception to hearsay.” N.T., Motions Hearing at 106.
Hearsay is “a statement that (1) the declarant does not make while
testifying at the current trial or hearing; and (2) a party offers in evidence to
prove the truth of the matter asserted in the statement.” Pa.R.E. 801(c). It is
not admissible as evidence unless an exception to the hearsay rule applies.
See Pa.R.E. 802; see also Pa.R.E. 802, 803, 803.1, and 804. One of the
exceptions to the rule against hearsay is the state of mind exception:
A statement of the declarant’s then-existing state of mind (such
as motive, intent or plan) or emotional, sensory, or physical
condition (such as mental feeling, pain, or bodily health), but not
including a statement of memory or belief to prove the fact
remembered or believed unless it relates to the validity or terms
of the declarant’s will.
Pa.R.E. 803(3).
“The admissibility of evidence relating to a victim’s state of mind has
been a subject of difference in this Court’s recent decisions.” Commonwealth
v. Moore, 937 A.2d 1062, 1070-71 (Pa. 2007). In some instances, following
Luster, our Courts have held that the state-of-mind exception applies to a
murder victim’s statement. See Commonwealth v. Parker, 104 A.3d 17, 29
(Pa.Super. 2014) (victim’s questions to grandmother were admissible under
state of mind exception); see also Commonwealth v. Kunkle, 79 A.3d
1173, 1185 (Pa.Super. 2013) (victim’s statement that he was scared of
defendant and if he died it would be defendant’s fault was properly admitted
as evidence based on state of mind exception). At other times, our appellate
-7-
J-A24016-18
Courts have held that the state-of-mind exception does not apply to a murder
victim’s statement. See Commonwealth v. Green, 76 A.3d 575, 582
(Pa.Super. 2013) (victim’s statements that she was afraid of defendant and
did not want “to go with him” were not admissible under state of mind
exception); see also Moore, 937 A.2d at 1069 (victim’s statement that
defendant bullied him was not admissible under state of mind exception); see
also Commonwealth v. Thornton, 431 A.2d 248, 251 (Pa. 1981) (victim’s
statement that he was fearful of defendant was not admissible under the state
of mind exception).
We conclude that the note was admissible under the state-of-mind
exception, but the email was not. The note was admissible over the hearsay
objection because it tended to establish the victim’s then-existing belief, i.e.,
her state of mind, which was relevant to show the ill will that the victim
perceived from Fitzpatrick, and, by implication, that their marriage was not
going well. The note was thus not offered for the truth of the matter asserted
and therefore was not hearsay. See Commonwealth v. Puksar, 740 A.2d
219, 225 (Pa. 1999) (“Statements are admissible to establish ill-will or motive
where they are not being offered for the truth of the matter contained
therein”); see also Commonwealth v. Brown, 648 A.2d 1177, 1182 (Pa.
1994) (stating out of court statement that is not offered for truth but “only for
the fact that it was made,” is not inadmissible hearsay).
-8-
J-A24016-18
In contrast, the victim’s email was hearsay and not rendered admissible
by the state-of-mind exception. The email did not relate to the victim’s then-
existing state of mind. Rather, the email was the victim’s recount of her
“memory or belief to prove the fact remembered,” which is explicitly excluded
by the state of mind exception. Pa.R.E. 803(3) (exception does not include
“memory or belief to prove the fact remembered or believed unless it relates
to the validity or terms of the declarant’s will”); see also Levanduski, 907
A.2d at 19 (concluding letter written by murder victim could not be considered
a memory or belief under state of mind exception because it was not related
to the victim’s will). Therefore, we conclude that the trial court abused its
discretion in admitting this evidence.
Although the trial court erroneously admitted the email into evidence,
the admission was harmless error in light of the overwhelming evidence
against Fitzpatrick. See Green, 76 A.3d at 582-83 (concluding harmless error
of admission of victim’s hearsay statement where there was sufficient and
compelling evidence of defendant’s guilt besides the hearsay evidence); see
also Levanduski, 907 A.2d at 22 (concluding admission of victim’s statement
was harmless error where there was other overwhelming evidence of
defendant’s guilt).
“The Commonwealth bears the burden of establishing the harmlessness
of the error.” Laich, 777 A.2d at 1062. It must show at least one of the
following:
-9-
J-A24016-18
(1) The error did not prejudice the defendant or the prejudice
was de minimus or;
(2) The erroneously admitted evidence was merely cumulative
of other untainted evidence which was substantially similar
to the erroneously admitted evidence or;
(3) The properly admitted and uncontradicted evidence of guilt
was so overwhelming and the prejudicial affect of the error
so insignificant by comparison that the error could not have
contributed to the verdict.
Id. at 1062-63. The Commonwealth argues that its burden to establish the
harmlessness of the admittance of the email is satisfied because “the evidence
presented at trial overwhelming supported [Fitzpatrick’s] conviction for first-
degree murder.” Commonwealth’s Br. at 58. We agree. As a prior panel
concluded, there was ample evidence of Fitzpatrick’s guilt:
Our review of the record reflects that each of the three
elements of first-degree murder was proven beyond a reasonable
doubt. . . Dr. Bollinger testified to the multiple injuries appearing
on [v]ictim’s body, which totaled at least twenty-five. . . In
addition, Dr. Bollinger opined that, within a reasonable degree of
medical certainty, the various bruises and injuries [v]ictim
suffered could have resulted from [v]ictim being held under the
water in a creek by another person and drowning. . . It is
undisputed that [Fitzpatrick] and [v]ictim were alone on the
property at the time that [v]ictim drowned in the creek. . . Thus,
Fitzpatrick was the only person who could have held [v]ictim
underwater in the creek, thereby making him responsible for the
killing. . . Concerning the issue of specific intent possessed by
[Fitzpatrick], the Commonwealth presented amply evidence of the
couple’s estranged relationship, including the fact that
[Fitzpatrick] was in the midst of an extramarital relationship with
another woman. . . The Commonwealth also presented stipulated
evidence of the existence of a total of $1,714,000 in life insurance
policies upon [v]ictim, with [Fitzpatrick] being the designated
beneficiary of those policies. In addition, it was stipulated that on
the morning of June 1, 2012, [Fitzpatrick] conducted a Google
- 10 -
J-A24016-18
search on his work computer using the words “life insurance
review during contestability period.”
Fitzpatrick, 159 A.3d at 568-570 (citations to notes of testimony omitted).
This Court also noted the additional inference of Fitzpatrick’s guilt because he
changed his statement regarding what happened at the lake. Id. at 570 n.6.
Our review of the record also brings us to the conclusion that the above
evidence amply established Fitzpatrick’s guilt, and the prejudicial effect of
admitting the email was so insignificant in comparison and therefore it could
not have contributed to the verdict.
Due to our disposition of the hearsay issue for the note and email, we
do not address Fitzpatrick’s last issue regarding the coordinate jurisdiction
rule. Therefore, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/2019
- 11 -