Com. v. Dowling

• Decision Date: 29 September 2005
• Citation: 883 A.2d 570,584 Pa. 396
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Kevin Brian DOWLING, Appellant.
• Court: Pennsylvania Supreme Court

883 A.2d 570

584 Pa. 396

COMMONWEALTH of Pennsylvania, Appellee v. Kevin Brian DOWLING, Appellant.

Supreme Court of Pennsylvania.

Submitted October 21, 2004.

Decided September 29, 2005.

John Harold Arnold, Lebanon, for Kevin Dowling, appellant.

Lori Ann Yost, Thomas Kelley, York, Amy Zapp, Harrisburg, Jonelle Harter Eshbach, for the Com. of Pa, appellee.

Before: CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.

OPINION

Justice NIGRO.

Following a jury trial, Appellant Kevin Brian Dowling was found guilty of first-degree murder for the killing of Jennifer Myers. After finding one aggravating circumstance and no mitigating circumstances during the penalty phase, the jury returned a verdict of death. On December 14, 1998, the trial court formally imposed the death sentence. This direct appeal followed, and for the reasons outlined below, we affirm the judgment of sentence.

As Appellant has been sentenced to death, we must independently review the record to determine whether the Commonwealth has established the elements necessary to sustain Appellant's conviction for first-degree murder. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982) (court is required to review sufficiency of evidence in capital cases, even when appellant does not raise such a claim). In reviewing the sufficiency of the evidence, we must review the evidence in the light most favorable to the Commonwealth, as the verdict winner, to determine whether the jury could have found every element of the crime beyond a reasonable doubt. Commonwealth v. Rivera, 565 Pa. 289, 773 A.2d 131, 135 (2001). To convict a defendant of first-degree murder, the Commonwealth must prove beyond a reasonable doubt that the defendant unlawfully killed another human being, that the defendant acted with the specific intent to kill, and that the killing was willful, deliberate, and premeditated. Commonwealth v. Spotz, 552 Pa. 499, 716 A.2d 580, 583 (1998); 18 Pa.C.S. § 2502(a). A specific intent to kill may be proven wholly by circumstantial evidence, and may therefore be inferred from the defendant's use of a weapon on a vital part of the victim's body. Commonwealth v. Bond, 539 Pa. 299, 652 A.2d 308, 311 (1995).

Here, there was clearly sufficient evidence to support Appellant's first-degree murder conviction. The record below establishes that on August 5, 1996, Jennifer Myers was robbed, tied up, and sexually assaulted at the art gallery she owned and operated in York County. Although Ms. Myers did not know the identity of her attacker at the time of the assault, she subsequently recognized Appellant as her attacker when she saw him working at a Sheetz convenience store in Hanover. Detective Arthur Smith went to the store and told Appellant that he wanted to speak with him about the assault of Jennifer Myers. The detective asked Appellant if he was carrying any weapons, to which Appellant responded that he was not but that he had a loaded gun under the driver's seat in his car parked outside in the Sheetz parking lot. Detective Smith then walked to Appellant's car and seized the gun, along with a pair of sunglasses that matched a description of those worn by Ms. Myers' assailant. Appellant was arrested and his car was towed, impounded and inventoried. During the inventory search, police found rope matching that used to restrain Ms. Myers during the assault and a newspaper article that covered the assault. Appellant was charged with the robbery and attempted rape of Ms. Myers.

Two days before trial was set to begin on those charges, on October 20, 1997, Ms. Myers was found murdered in her art gallery. She had been shot three times, once in her chest, once in her left shoulder and once in her left eye. Witnesses stated that they had heard three bangs in rapid succession from the gallery at approximately 1:00 p.m. and Sandra Eller positively identified Appellant as the person who almost struck her with his car as he was leaving the shopping center in which Ms. Myers' art gallery was located. Police quickly focused their investigation on Appellant and learned that Appellant had tampered with the recorded time on a videotape in an attempt to fabricate an alibi for the time of Ms. Myers' murder and also discovered a letter that Appellant had written to Ms. Myers, asking her for forgiveness. Police arrested Appellant for the murder of Ms. Myers on October 29, 1997.

Appellant went to trial for the robbery and attempted rape charges in April of 1998 and, following that trial, was convicted of robbery, criminal attempt to commit rape and indecent assault. The trial court sentenced Appellant to an aggregate term of imprisonment of 9 to 18 years.¹ Meanwhile, Appellant's murder trial commenced on October 26, 1998. At trial, the Commonwealth argued that Appellant's motive for killing Ms. Myers was to prevent her from testifying at the trial for his attempted rape and robbery charges. In addition to presenting Appellant's letter to Ms. Myers, the videotape of the fabricated alibi and Ms. Eller's testimony placing Appellant near the art gallery at the approximate time of the murder, the Commonwealth presented several other witnesses who testified that they saw a strange man wearing a black wig in the area of the art gallery at the time of the murder. Furthermore, Joseph Leuw, a fellow inmate with Appellant, testified that Appellant told him that he had been in the area of the art gallery on the day of the murder and that he had a wig in his car that belonged to his daughter. The Commonwealth also presented a gunshot residue expert as a witness, who testified that the flannel shirt, pants, hat and sneakers that Appellant was wearing on the day of the murder all tested positive for gunshot residue. Given this record, we agree with the trial court that there was sufficient evidence to support the jury's conclusion that Appellant intentionally killed Jennifer Myers.²

In his first two claims of error, Appellant essentially asserts that counsel in his robbery and attempted rape trial was ineffective for failing to adequately litigate a motion that she filed in that case seeking to suppress the physical evidence from Appellant's car. This, however, is simply not a claim that we can consider here as it attempts to challenge the effectiveness of counsel in a matter other than the one that is currently on appeal. Perhaps in recognition of this, Appellant tries to link his counsel's representation at his robbery trial to the outcome of his capital case, asserting that the improperly admitted physical evidence from the car led to a guilty verdict in his robbery and attempted rape trial and that those convictions, in turn, were used by the Commonwealth in Appellant's murder trial as evidence of Appellant's motive for murdering Ms. Myers.³ However, this tangential relationship aside, the fact remains that Appellant is seeking relief in the instant case on the basis of his counsel's alleged failures in a separate matter, which was based on separate charges, and for which he had a separate trial and a separate trial attorney. Of course, the proper venue for Appellant to raise a claim relating to his counsel's performance at his robbery trial is in an appeal that stems from that trial, and not in an appeal that stems from a wholly distinct trial.⁴ Thus, Appellant is not entitled to relief on the basis of his first two claims.

Appellant's next two issues implicate the competency of his thirteen year-old daughter, who testified against Appellant. Appellant first asserts that the trial court erred by denying him access to the mental health records of his daughter on the basis that Appellant was on a "fishing expedition designed to attempt to discredit [his daughter] in any way possible." Tr. Ct. Op. at 24. Appellant argues that, as the witness's father, he knew first-hand that his daughter had been diagnosed with depression, a panic disorder and agoraphobia and as such, his attempt to obtain and use his daughter's medical records to challenge her competency was not in any way a "fishing expedition." As both the lower court and the Commonwealth point out, however, communications between a psychiatrist or licensed psychologist and their patients are confidential under 42 Pa.C.S. § 5944 and this Court has clearly held that the statutory privilege pursuant to Section 5944 is not outweighed by a defendant's right to cross-examine witnesses or his due process rights. See Commonwealth v. Counterman, 553 Pa. 370, 719 A.2d 284, 295 (1998) (trial court did not err in denying appellant's request for wife's mental health records in light of clear mandate of Section 5944 and in light of fact that there was no evidence that wife had received mental health treatment).⁵ Although Appellant argues that "it is possible" that his daughter was not treated by an actual psychiatrist, see Appellant's Bf. at 32, thereby making the privilege inapplicable to her mental health records, such a speculative argument loses any appeal when considering that it follows on the heels of Appellant's self-proclaimed "first-hand" knowledge of his daughter's mental health situation and when considering that Appellant himself testified at his sentencing hearing that a "psychiatrist determined where [his daughter's] panic disorder originated." N.T., 11/9/98, at 16 (emphasis added). Moreover, it is worth noting that Appellant could have asked either his daughter or his wife, who also testified against Appellant, questions concerning his daughter's mental health in an effort to challenge her competency, but opted not to. Thus, we see no abuse of discretion in the trial court's decision denying Appellant access to his daughter's records.

Appellant also contends, however, that the trial court failed to conduct a sufficient competency colloquy of his daughter. This claim also fails.

"A child's competency to testify is a threshold legal issue that the trial court must decide, and an appellate court will...