Com. v. Chiappini

• Decision Date: 23 July 2001
• Citation: 782 A.2d 490,566 Pa. 507
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Peter CHIAPPINI, Appellant.
• Court: Pennsylvania Supreme Court

782 A.2d 490

566 Pa. 507

COMMONWEALTH of Pennsylvania, Appellee, v. Peter CHIAPPINI, Appellant.

Supreme Court of Pennsylvania.

Argued February 3, 1999.

Decided July 23, 2001.

John P. Moses, Wilkes Barre and Joseph M. Nocito, Kingston, for Peter Chiappini.

Michael J. Barrasse, Dist. Atty., Lisa A. Gillick and John J. Notarianni, Asst. Dist. Attys., for Com.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

ZAPPALA, Justice.

We granted allowance of appeal in this matter limited to two issues (1) whether the trial court erred in admitting the testimony of Denise Chiappini, who was the Appellant's wife at the time of the events to which she testified; and (2) whether the Appellant should have received credit towards his sentence for time served in a home confinement/electronic monitoring program. Regarding the first issue, we hold that the court did not err in allowing Denise Chiappini to testify about actions of the Appellant that she observed. As to the second issue, we hold that the Appellant is entitled to credit for 518 days spent in the home confinement/electronic monitoring program.

The Appellant was charged with arson, risking a catastrophe, and recklessly endangering another person in connection with a fire that occurred on the night of May 27, 1991, at a house in Scranton. The Appellant and his wife owned the house and had resided there from 1989 through the early part of spring of the same year. Expert testimony indicated that the fire had been burning for at least two hours before it was discovered at about 11:30 p.m., and that it was intentionally set and fueled by an accelerant. There was also evidence that the Appellant had sold some of the kitchen cabinets from the house and had increased the insurance coverage on the house prior to the fire.

In addition, the Commonwealth's case included testimony by Denise Chiappini, who was divorced from the Appellant in 1992. The Appellant filed a motion in limine arguing that pursuant to 42 Pa.C.S. § 5914 she was not permitted to testify about what the Appellant had said or done that evening. The court ruled that she could not testify concerning statements made to her by the Appellant but that she could testify about his actions.

In summary, Denise Chiappini testified that on May 27, 1991, between 6:00 and 8:00 p.m., the Appellant and she went for a ride in their car, with her driving and the Appellant directing her, eventually reaching the vicinity of their previous residence. As they were travelling on a road behind the property, the Appellant got out of the car and ran into the woods in the direction of the house, disappearing from her view. While he was gone, she proceeded further down the road, turned the car around, and went back to the place where the Appellant had gotten out of the car. He reappeared from approximately the same place in the woods, got back in the car, and they returned home.

There are a number of difficulties involved in trying to delineate the parameters of the spousal confidential communications privilege to be applied in this case. At the outset, although 42 Pa.C.S. § 5914 was enacted in 1976 and made effective in June of 1978 as part of the Judicial Code, it is substantially a reenactment of legislation dating back to 1887, which itself had roots in the common law.¹ At the time this precept was first incorporated into the Commonwealth's statutory law, the rules of construction held that statutes in derogation of the common law were to be strictly construed. Although this rule of construction has not been generally applicable since 1937, see 1 Pa.C.S. § 1928(a), it continues to apply to "[p]rovisions enacted finally prior to September 1, 1937 which are in derogation of the common law." 1 Pa.C.S. § 1928(b)(8). Another rule of statutory construction, 1 Pa.C.S. § 1962, indicates that "[w]henever a statute is repealed and its provisions are at the same time reenacted in the same or substantially the same terms by the repealing statute, the earlier statute shall be construed as continuing in active operation." Thus the rule of strict construction continues to apply, despite the fact that Section 5914 was enacted in 1976.

Properly understood, this rule of strict construction presumes that common law rules, as developed and refined by the courts, are to continue as before, and are altered or abrogated by a statute only to the extent that the legislation specifically requires such a result. If a circumstance does not plainly fall within the language of such a statute, the courts do not attempt to "interpret" or "discern legislative intent" in order to apply the statute. Rather, the statute does not come into play at all and the courts are to apply the common law rule.

With respect to the rules regarding spousal testimony, not many years after the adoption of the Act of May 23, 1887, this Court observed that the Act "relates only to living husbands and wives, and makes no provision in the case of the death of either.... Hence the general authorities applicable without any reference to the act of 1887 are the ones which control the present question." Dumbach v. Bishop, 183 Pa. 602, 608, 39 A. 38 (1898) (emphasis added). Likewise, as recently as 1977, in Commonwealth v. Borris, 247 Pa.Super. 260, 372 A.2d 451 (1977), the Superior Court recognized the distinction between applying the statutory rule and applying the common law rule in the case of marriages terminated by divorce. Speaking of the privilege governing "confidential communications made during a marriage, subsequently terminated by death or divorce," the court stated, "The Act of 1887 does not contemplate those situations. See 2 Henry, Pennsylvania Evidence § 699 (4th Ed.1953). Our courts have followed the common law rule in those cases." 372 A.2d at 454.

In this case, therefore, where Peter and Denise Chiappini were no longer husband and wife at the time of trial, the question is not whether her testimony should have been excluded "pursuant to 42 Pa.C.S. § 5914." The statute does not apply. Rather, the question is whether her testimony should have been excluded pursuant to the common law rule.

At this point we encounter another difficulty, namely presenting an accurate statement of the common law rule. The earliest of the cases quoted in Dumbach v. Bishop was Cornell v. Vanartsdalen, 4 Pa. 364 (1847), which stated:

The great object of these rules being to secure domestic happiness by prohibiting confidential communications from being divulged, the rule is the same to that extent, even though the other party is no longer in being, or has even been divorced and married to another person. The rule is the same in its spirit and extent, as that which excludes confidential communications made by a client to an attorney. And in analogy to this rule, it is held, that the wife, after the death of the husband, is competent to prove facts, coming to her knowledge from other sources not by means of her situation as wife, notwithstanding they relate to the transactions of her husband. The prohibition, where she is a competent witness, being divested of all interest, extends to confidential communications alone, or such as come to her knowledge from her domestic relation.

4 Pa. at 374 (first emphasis in original, second emphasis added). The latter emphasized phrase, being stated separately and in the disjunctive, might be taken to mean that matters coming to one's knowledge from the domestic relation constitute something different from "confidential communications," yet similarly protected from disclosure.

A similar inference might be drawn from another case quoted in Dumbach, i.e., Stephens v. Cotterell, 99 Pa. 188 (1882), which stated, "She is competent to testify to facts which came to her knowledge otherwise than through the confidential relations existing between her and her husband." The corollary to this statement would be that she was incompetent to testify to facts which came to her knowledge through the confidential relations existing between her and her husband.² The third case quoted in Dumbach v. Bishop, however, Robb's Appeal, 98 Pa. 501 (1881), rejected the argument "that the disqualification incident to coverture continued after the death of [the witness's] husband, and is not limited to what occurred in their confidential intercourse, but extends to all facts and transactions which came to her knowledge during their marital relations." The Court observed, "While the principle thus broadly stated has sometimes been recognized, the better and more generally received opinion is that the disqualification is restricted to communications of a confidential nature, and does not embrace ordinary business transactions and conversations in which others have participated." 98 Pa. at 503.

A later case citing to both Robb's Appeal and Stephens v. Cotterell appears to give very limited scope to the "knowledge of facts gained through the marital relationship" as a class of information subject to the prohibition. In Stewart v. F.A. North Co., 65 Pa.Super. 195 (1916), the court allowed the testimony of the former wife of the plaintiff, called as a witness by the defendant in a civil action, regarding facts which could have come to the knowledge of someone other than the witness. The court stated, "we are unable to see that the knowledge possessed by Mrs. Stewart as to the contents of the cellar of the house in which she lived was in any sense a confidential matter or that it was acquired in her relation to her husband as a wife.... It was knowledge of a physical fact, not communicated by the husband or having any relation to or association with their relation as husband and wife." Subsequent cases citing F.A. North for the common law rule made no reference at all to "knowledge acquired in the relation of husband and wife." See, e.g., Commonwealth v. Beddick, 180 Pa.Super. 221, 119 A.2d 590, 593 (...