Com. v. McEnany

• Decision Date: 13 May 1999
• Citation: 732 A.2d 1263,1999 Pa. Super. 112
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Timothy P. McENANY, Appellant.
• Court: Pennsylvania Superior Court

732 A.2d 1263

1999 Pa. Super. 112

COMMONWEALTH of Pennsylvania, Appellee, v. Timothy P. McENANY, Appellant.

Superior Court of Pennsylvania.

Argued October 6, 1998.

Filed May 13, 1999.

Royce L. Morris, Harrisburg, for appellant.

Francis Chardo, Asst. Dist. Atty., Harrisburg, for Com., appellee. Before KELLY, BROSKY, and BECK, JJ.

KELLY, J.:

¶ 1 Appellant, Timothy McEnany, asks us to determine, inter alia, whether the trial court erred when it allowed the Commonwealth to introduce his conviction for receiving stolen property as evidence to impeach Appellant's credibility. We are also asked to determine whether the trial court erred when it precluded evidence that Appellant's alleged co-felon had not been charged with any crimes. We hold that the trial court properly permitted the Commonwealth to introduce Appellant's prior conviction as evidence to impeach his credibility. We also hold that evidence that Appellant's alleged co-felon was not charged with any crimes was irrelevant to the determination of Appellant's guilt or innocence and, therefore, inadmissible. Accordingly, we affirm.

¶ 2 The relevant facts and procedural history of this case are as follows. On March 4, 1993, at 12:45 a.m., eighty-two-year-old Kathryn Bishop was found dead on the floor of her residence. Subsequent investigation revealed that Appellant and his cousin, the alleged co-felon, were at Ms. Bishop's residence to clean her chimney between the hours of 2:00 p.m. and 5:00 p.m. on March 3, 1993.

¶ 3 On March 7, 1993, Corporal Lester Freehling and Trooper Jeffrey Stansfield arrived at Appellant's house and asked him if he would accompany them to the police station. At this time, Corporal Freehling told Appellant that he was not required to go to the station, that he was not under arrest, and that the officers would bring him home at any time. Appellant agreed to go with the officers. Once at the police station, Corporal Freehling gave Appellant a Miranda form and told Appellant that he could stop the questioning at any time. Appellant said that he understood his rights and signed the waiver form.

¶ 4 The police questioned Appellant for several hours. During the questioning, Corporal Freehling posed the following scenario to Appellant

[y]ou and [alleged co-felon] were working at the old lady's house. [Alleged co-felon] had gotten a check for payment and seen a lot of money on the dining room table. You and [alleged co-felon] went to Shane's Bar and started drinking. [Alleged co-felon] told you about the old lady having a lot of money and came up with the idea to go back to the old lady's house and rob the old lady. You and [alleged co-felon] drove back to the old lady's house. You dropped [alleged co-felon] off and waited near the house in the truck. [Alleged co-felon] came back from the house with the money and probably didn't even tell you he had killed the old lady. The first you knew she was dead was when Trooper Lotwick and Stansfield showed up at your house on Friday.

This may not be exactly the way it happened, but it is pretty close to the truth, isn't it?

(N.T., 9/10/97 at 509). Appellant's immediate response was, "Yeah, I want to tell you what happened." Corporal Freehling stopped the questioning and left the room. At this time, Appellant blurted out to another trooper in the room, "It's that fucking beer. Every time I drink I get in trouble. I really fucked up this time."

¶ 5 Thereafter, Corporal Freehling returned and began to advise Appellant of his constitutional rights. Before he could finish, Appellant interrupted him and said that he wanted to do the right thing and that he knew what the right thing was. Appellant further stated that he wanted to tell what happened, but he did not want to do anything stupid and wanted an attorney present before he made a statement. All questioning of Appellant then ceased.

¶ 6 Subsequently, Trooper Stansfield obtained search warrants for Appellant's van and residence. From Appellant's residence, police seized the clothes Appellant wore on March 3, 1993. Investigation of Appellant's clothing revealed paint chips in the pocket of Appellant's jacket. The paint chips were later found to match the paint chips found on Ms. Bishops hands. Fibers found on Ms. Bishop's body also matched those of the tee-shirt Appellant had worn on the day of the murder.

¶ 7 Pursuant to the search warrant for Appellant's van, the police seized Appellant's cellular phone. Investigation of the memory of Appellant's phone revealed that the last number dialed was Ms. Bishop's home telephone number. The police then obtained a search warrant to search Appellant's telephone records maintained by the Cellular One Telephone Company ("Cellular One"). A search of these records revealed two unanswered calls made to Ms. Bishop's residence at approximately 10:07 p.m. on the night she was murdered.

¶ 8 Prior to trial, Appellant filed an omnibus pre-trial suppression motion. Appellant's motion sought to suppress all evidence obtained by the police as a result of the search of Appellant's van and residence. The trial court denied Appellant's motion. The case proceeded to trial and a jury found Appellant guilty of second-degree murder, burglary, robbery, and criminal conspiracy.

¶ 9 On direct appeal, this Court affirmed the trial court's rulings on Appellant's motion to suppress. See Commonwealth v. McEnany, 446 Pa.Super. 609, 667 A.2d 1143 (1995). This Court, however, reversed Appellant's judgment of sentence and remanded the case for a new trial because the trial court erroneously permitted the Commonwealth to elicit testimony that impermissibly commented on Appellant's right to remain silent. Id.

¶ 10 On May 1, 1997, Appellant filed a second omnibus pre-trial suppression motion. Appellant's second suppression motion raised essentially the same issues that Appellant argued in his first omnibus pre-trial suppression motion. The trial court refused to consider the motion because it found that the issues had been previously litigated in Appellant's first omnibus pre-trial suppression motion and on Appellant's direct appeal to this Court.

¶ 11 On August 18, 1997, Appellant filed a motion in limine seeking to exclude Cellular One's telephone records, which established that Appellant called Ms. Bishop on the night of the murder. The trial court denied this motion because it found that the records fell within the business records exception to the hearsay rule.

¶ 12 The case proceeded to a second jury trial on September 10, 1997. Appellant testified on his own behalf. Over Appellant's objection, the Commonwealth was permitted to impeach Appellant with his 1986 conviction for receiving stolen property. On September 18, 1997, the jury found Appellant guilty on all charges and the trial court sentenced Appellant to life imprisonment. Appellant filed a timely notice of appeal.

¶ 13 Appellant raises the following issues for our review:

1. WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT THE APPELLANT WAS NOT ENTITLED TO RAISE A SECOND OMNIBUS PRE-TRIAL MOTION ON REMAND AND IN ADOPTING THE LAW OF THE CASE DOCTRINE?

2. WHETHER THE TRIAL COURT MISAPPREHENDED THE RULING OF THIS HONORABLE COURT IN COMMONWEALTH V. MCENANY, 446 Pa.Super. 609, 667 A.2d 1143 (1995) BY ALLOWING A STATEMENT INTO EVIDENCE WHICH IMPROPERLY COMMENTED ON THE APPELLANT'S RIGHT TO REMAIN SILENT IN CLEAR CONTRAVENTION OF THIS HONORABLE COURT'S DIRECTION UPON REMAND OF THIS CASE?

3. WHETHER THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF THE APPELLANT'S APRIL 25, 1986, CONVICTION FOR THEFT BY RECEIVING STOLEN PROPERTY, WHEN SAID CONVICTION OCCURRED

MORE THAN TEN (10) YEARS PRIOR TO THE TRIAL OF THE APPELLANT IN SEPTEMBER, 1997?

4. WHETHER THE TRIAL COURT ERRED IN ADMITTING THE CELLULAR PHONE RECORDS WHICH CONSTITUTED COMPUTER-GENERATED PRINTOUTS WHICH WERE HEARSAY DOCUMENTS AND DID NOT FALL UNDER ANY RECOGNIZED EXCEPTION TO THE HEARSAY RULE?

5. WHERE THE PROSECUTION'S THEORY OF THE CASE REVOLVES AROUND THE INVOLVEMENT OF [ALLEGED CO-FELON] TO THE EXTENT THAT THE PROSECUTION INTRODUCED A HYPOTHETICAL SCENARIO WITH [ALLEGED CO-FELON] AS THE ACTUAL PRINCIPAL ACTOR IN THE BURGLARY-HOMICIDE, DID THE TRIAL COURT ERR IN REFUSING TO ALLOW THE APPELLANT TO INTRODUCE EVIDENCE THAT [ALLEGED CO-FELON] WAS NEVER ARRESTED IN VIOLATION OF THE APPELLANT'S RIGHTS UNDER THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 1 § 9 OF THE PENNSYLVANIA CONSTITUTION?

(Appellant's Brief at 3).

¶ 14 In his first issue on appeal, Appellant argues that the trial court erred when it refused to consider his second omnibus pre-trial suppression motion. Appellant contends that the trial court should have conducted a hearing on the matter to determine whether there were any changes in the law or the facts, which would have affected the trial court's rulings on the motion. We disagree.

¶ 15 The law of the case doctrine refers to a family of rules which embodies the concept that a court involved in the later phases of a litigated matter should not reopen questions decided by a higher court in the earlier phases of the matter. Commonwealth v. Starr, 541 Pa. 564, 574, 664 A.2d 1326, 1331 (1995) (citing 21 C.J.S. Courts § 149a; 5 Am.Jur.2d Appeal and Error § 744). The law of the case doctrine makes clear that upon remand for further proceedings, a trial court may not alter the resolution of a legal question previously decided by an appellate court in the matter. Id.; Commonwealth v. Romberger, 474 Pa. 190, 193-194, 378 A.2d 283, 284 (1977). Where an appellate court reverses a defendant's conviction and grants him a new trial, the defendant is not entitled to re-litigate the admissibility of evidence when the second suppression motion was based on the same issue and evidence raised in the first suppression motion. Commonwealth v. Sample, 321 Pa.Super. 457, 468 A.2d 799, 802 (1983). A second suppression hearing is only necessary where new evidence, previously unavailable,...