870 A.2d 822 (Pa. 2005), Commonwealth v. Spotz

Citation:870 A.2d 822
Party Name:COMMONWEALTH of Pennsylvania, Appellant/Cross-Appellee v. Mark N. SPOTZ, Appellee/Cross-Appellant.
Case Date:March 29, 2005
Court:Supreme Court of Pennsylvania

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870 A.2d 822 (Pa. 2005)

COMMONWEALTH of Pennsylvania, Appellant/Cross-Appellee


Mark N. SPOTZ, Appellee/Cross-Appellant.

Supreme Court of Pennsylvania

March 29, 2005

Argued Sept. 8, 2003.

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[Copyrighted Material Omitted]

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Paul Edward Cherry, Clearfield, for the Com. of PA.

Mary Rebecca Ennis, Broomall, Paul Boas, Pittsburgh, for Mark N. Spotz.



CASTILLE, Justice.

The dispositive issue in these cross-appeals is whether the Superior Court erred in finding that trial counsel for appellee/cross-appellant Mark N. Spotz ("appellee") was ineffective, as a matter of law, for failing to object to alleged prosecutorial references to appellee's post-arrest silence. For the following reasons, we reverse the Superior Court's grant of a new trial on this claim, reinstate appellee's judgment of sentence, and dismiss this claim of counsel ineffectiveness, as well as the claims of counsel ineffectiveness raised on appellee's cross-appeal, without prejudice to appellee's right to pursue them under the Post Conviction Relief Act ("PCRA"). 1

On January, 31, 1995, appellee, who was on parole for a robbery conviction at the time, and his brother, Dustin Spotz, engaged in an argument at the home of their mother and stepfather in Clearfield County. The argument began after Dustin's fiancée's son placed a pet gerbil in front of appellee's face while he was watching television. Appellee yelled at the child and threatened to physically harm him, angering Dustin. The argument escalated into a physical confrontation and, during the fight, Dustin stabbed appellee twice in the upper back with a butter knife, slightly wounding him. In response, appellee threatened to kill Dustin and proceeded upstairs, returning with a .9 mm handgun. The argument continued until appellee fired eight shots at his brother. The first six shots missed, but the last two fatally struck Dustin in the chest. After the victim fell to the ground, appellee leaned over

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him, spit on his face and stated, "There you go, pussy."

Dustin's fiancée tried to call the police, but appellee grabbed the phone and declared that nobody could call anyone until he escaped the scene. Appellee put the handgun in his pants and attempted to retrieve the spent bullet shells from the kitchen floor. Appellee and his girlfriend, Christine Noland, then fled the house in a vehicle driven by his stepfather. Three days later, on February 3, 1995, police apprehended appellee at a motel in Carlisle, Pennsylvania. 2

Following his arrest and return to Clearfield County, appellee was charged with first degree murder, 3 third degree murder, 4 voluntary manslaughter, 5 aggravated assault, 6 recklessly endangering another person, 7 carrying a firearm without a license, 8 and former convict not to own a firearm. 9 At his subsequent jury trial, appellee claimed self-defense and defense of others, arguing for an outright acquittal of the non-firearms charges. In support of this defense, appellee testified and claimed that Dustin had a knife in each hand and was about to attack him, his stepfather, and his mother; only then did he shoot and kill Dustin in defensive response. Appellee further claimed that Dustin had abused both his mother and appellee during appellee's childhood, including an incident in 1989 where Dustin stabbed appellee in his hand, requiring medical treatment.

On cross-examination, the prosecutor questioned appellee about his failure to help his brother after shooting him, his flight, and his subsequent failure to report the shooting to police on the night in question and to tell the police that he was defending himself. 10 The primary focus of this exchange was upon appellee's conduct immediately after the killing:

Q: You were bleeding heavily?

A: I said my only concern was if I was going to die. I was bleeding, man. I was bleeding bad. I was hurting. I didn't know what was happening.

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Q: But you didn't go to the DuBois Hospital; you didn't go to the Clearfield Hospital. Why?

A: When I was walking across the parking lot, Chris[tine Noland] starting filling my head with a lot of stuff that just didn't make sense. To my knowledge and the way I remember, my brother wasn't dead when I left. He was still alive. He was on the floor. Everything--I mean, a lot of things I remember now that weren't clear when this stuff happened. You know. It was traumatic, you know, I was shocked. I didn't understand a lot of things for a long time.

She told me I killed my brother. I was on the run from parole. And if I went in the hospital, the cops would arrest me. Now, she had me scared. One, I didn't want to go back to jail for anymore nonsense like getting speeding tickets. And two, she said I killed somebody that I didn't know I killed, you know. And to me, I didn't kill him.

Q: And you didn't stick around to help your brother, either; did you?

A: I did what I could do.

Q: You didn't stay to report this to the authorities that night?

A: I went to the hospital, man. I was stabbed.

Q: You didn't go into the hospital?

A: I didn't say I went in. I went.

Q: Did you go back to Chestnut Grove to talk to the police?

A: No.

Q: No.

A: No.

Q: To tell them that you were defending yourself. Did you tell the police that?

A: I just believe I--

Q: Answer my question, sir. Did you tell the police that night that you were defending yourself?

A: I didn't talk to the police that night.

N.T. 9/25/1995 at 150-52.

The prosecutor immediately followed this exchange with two questions which, although they did not specifically refer to appellee's arrest, nevertheless were broadly phrased as to encompass both pre-arrest and post-arrest periods:

Q: Other than today, did you ever tell the police that you were defending yourself?

A: I never talked to the police to this day. They never asked me questions. They never asked me anything.

Q: The police never talked to you, or attempted to talk to you?

A: They said things to me. They never tried to question me. They put guns in my face and said if I ever walked the street, they'd hunt me down and kill me theirself [sic]. That's what the cops said to me.

N.T. 9/25/1995 at 152 (emphases supplied). Appellee's counsel did not object to either question.

During closing argument, the prosecutor argued to the jury that the evidence showed that appellee did not act in self-defense, and in highlighting why that was so, he made reference to appellee's conduct after the killing, including his threat to kill his brother after being stabbed, his flight after shooting his brother, and his failure to relate to the authorities that he was defending himself. In this argument, the prosecutor's primary focus again was on appellee's conduct on the night of the killing. The prosecutor nevertheless again made a single, broad temporal reference which encompassed the post-arrest period:

But, no, he came right back down [the stairs]. He came right back down. Another

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discrepancy in their claim of self-defense. Testimony was you mother F'n son of a bitch, you're dead. He said that. Does that sound like somebody in self-defense?

He never told the authorities that he was defending himself. Why? Because he fled. Does that sound like somebody who is defending himself and others, that he fled, didn't stay there to tell the police what happened? Does that sound like somebody who is defending himself or defending his family? No. Instead, he fled, he took off.

N.T. 9/26/95 at 45-46 (emphasis supplied). Again, appellee's trial counsel forwarded no objection.

With respect to the homicide charge, the trial court instructed the jury on first and third degree murder, as well as "heat of passion" voluntary manslaughter. 11 The court also charged the jury on justification/self-defense. 12 N.T. 9/26/95 at 54-55, 81-83. On September 26, 1995, the jury acquitted appellee of first and third degree murder, but convicted him of voluntary manslaughter, aggravated assault, recklessly endangering another person, and the firearms offenses. On October 17, 1995, the trial court sentenced appellee to an aggregate term of seventeen and one-half to thirty-five years of imprisonment. No timely direct appeal was filed.

On January 16, 1996, appellee filed a timely petition for PCRA relief in which he claimed ineffective assistance by his trial counsel for failing to timely appeal his judgment of sentence, and seeking nunc pro tunc reinstatement of his direct appeal rights. On November 17, 1998, following a hearing, appellee was granted that relief and he later filed a timely nunc pro tunc appeal. In his subsequently-filed Pa.R.A.P.1925(b) statement of matters complained of on appeal, appellee alleged several ineffective assistance of counsel claims and several claims of trial court error. On December 22, 1998, the trial court filed an opinion in which it briefly addressed the listed claims, but also noted that it was hamstrung in its evaluation of the claims since no evidentiary hearing had been held regarding the ineffective assistance of counsel claims and, in the court's view, such a hearing might be necessary to properly resolve the claims.

On February 8, 1999, appellee's then-counsel filed a motion for withdrawal of appearance. The Superior Court granted the motion, as well as a concomitant motion for leave to strike and re-file briefs. Appellee's current counsel then filed an amended Rule 1925(b) statement alleging that trial counsel was ineffective in six additional instances, and that the cumulation of these issues entitled appellee to relief. No claims of trial court error were raised therein. The brief that counsel then filed in the Superior Court...

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