Com. v. McMullen

• Citation: 545 Pa. 361,681 A.2d 717
• Court: United States State Supreme Court of Pennsylvania
• Decision Date: 31 July 1996
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Kim Lee McMULLEN, Appellee.

Page 717

681 A.2d 717

545 Pa. 361

COMMONWEALTH of Pennsylvania, Appellant, v. Kim Lee McMULLEN, Appellee.

Supreme Court of Pennsylvania.

Argued Sept. 22, 1994.

Decided July 31, 1996.

Robert B. Stewart, District Attorney, for Appellant.

Charles J. Kroboth, Law Office of David A. Flood, Bellefonte, for Appellee.

Before NIX, C.J., and FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY, CASTILLE and MONTEMURO, JJ.

OPINION

NIX, Chief Justice.

The Commonwealth appeals from an order of the Superior Court vacating the sentences imposed upon Appellee, Kim Lee McMullen, for second degree murder ¹ and burglary ² by the Court of Common Pleas of Huntingdon County. Commonwealth v. McMullen, 420 Pa.Super. 130, 616 A.2d 14 (1992). ³ In admitting into evidence a presumed inculpatory statement made by Appellee, the trial court determined that the corpus delicti for the homicide charge had been established under Commonwealth v. Boykin, 450 Pa. 25, 29, 298 A.2d 258, 261 (1972), which provides that independent evidence is sufficient to establish corpus delicti if it is equally as consistent with an accident as with a crime. The Superior Court reversed, determining that inculpatory statements are admissible only if independent evidence indicates more likely than not that a crime was committed. McMullen, 420 Pa.Super. at 135-36, 616 A.2d at 16-17 (citing Commonwealth v. Byrd, 490 Pa. 544, 417 A.2d 173 (1980); Commonwealth v. Leslie, 424 Pa. 331, 227 A.2d 900 (1967)). The Superior Court found the independent evidence in this matter insufficient to establish the corpus delicti for the homicide charge but vacated both the burglary and murder convictions. For the reasons stated below, we affirm that portion of the Superior Court's Order vacating the murder conviction but reverse that portion which vacated Appellee's burglary conviction.

In the late evening or early morning hours of February 23-24, 1985, the Grocery Box, a food store in Orbisonia, Pennsylvania, was burglarized. Eight days later, on March 4, 1985, the body of Dominic Barcelona was recovered from Black Log Creek, not far from the Grocery Box. The body was about 400 to 500 yards downstream from a highway bridge and about 300 yards downstream from a railroad bridge. Barcelona, a 30-year old schizophrenic, was well known throughout the community for his habit of taking extensive walks. He also walked with a limp sustained as a result of being hit by a car during one of these walks.

At the time of these events, the police made no connection between the burglary and Barcelona's death. Instead, police concluded that Barcelona accidentally drowned because neither Barcelona's body nor the location of his death bore evidence of foul play. This conclusion was supported by the pathologist who autopsied Barcelona and also by the county coroner.

However, after rumors surfaced that the burglary and drowning were related, the Pennsylvania State Police reopened both investigations in the latter part of 1989. Appellee, who was then incarcerated on other charges, gave a statement averring that he and another man, Adam Wiser, burglarized the Grocery Box and, while fleeing, encountered Barcelona on a nearby bridge. McMullen, 420 Pa.Super. at 133, 616 A.2d at 15. Appellee further stated that Wiser, not he, threw Barcelona into the creek after apparently knocking him to the ground. Id.

After investigators interviewed Wiser and determined that he was not involved in the burglary or Barcelona's demise, the Commonwealth charged Appellee with the burglary of the Grocery Box and criminal homicide regarding Barcelona's death. These charges were tried together in December of 1990.

At Appellee's trial, Barcelona's mother testified that her son would not have been on either the highway or railroad bridge voluntarily because he was afraid of both heights and water. However, she acknowledged on cross-examination that he might cross a bridge if he had to and that she was not certain of his conduct during his night walks because she did not accompany him. Further, witnesses interviewed at the time of Barcelona's death stated that they saw him at or near the town bridge at the time of his disappearance.

The pathologist who autopsied Barcelona in 1985 testified and reiterated his conclusion that Barcelona accidentally drowned because of the condition of his body and the fact that neither his body nor the location of the drowning showed signs of a struggle. Also, while he noted that Barcelona had some bruising and lacerations on his forehead which occurred prior to death and which could not have been caused by the impact upon falling from the bridge, he also stated that they could have been sustained after Barcelona fell into the creek but prior to his drowning. The pathologist also commented that no additional evidence had come to light since 1985 that would have a bearing on his autopsy record.

Barcelona's treating psychiatrist testified and noted that manifestations of Barcelona's schizophrenia included hearing voices and having delusions. While various medications were prescribed for Barcelona, he resisted taking them, and he also resisted hospitalization for treatment. Barcelona had also placed himself at risk on occasion by walking into roadways without regard to traffic and had actually been struck by a car in November of 1983, breaking his leg.

Prior to the Commonwealth's presentation of testimony regarding Appellee's statement, and again at the close of the Commonwealth's case, Appellee objected to the admission of the statement because the corpus delicti of the homicide charge had not been established. In support of his position, Appellee cited case law of this Court holding that independent evidence cannot establish corpus delicti if it is merely equally as consistent with an accident as with a crime. However, the trial judge rejected Appellee's argument, instead relying on Boykin to conclude that "[i]t is sufficient" to establish corpus delicti "if these circumstances are consistent with crime even though they are also consistent with accident or suicide." (R.R. at 259a)(citing Boykin, 450 Pa. at 29, 298 A.2d at 261). The trial judge determined that the evidence met the Boykin standard and thus admitted Appellee's statement.

Appellee was ultimately convicted by the jury of both the burglary and second degree murder and was immediately sentenced on the murder conviction to mandatory life imprisonment. McMullen, 420 Pa.Super. at 132, 616 A.2d at 15. He also received a sentence of eleven months to five years on the burglary conviction. Id. McMullen then filed separate appeals from the sentences, which the Superior Court consolidated for review. Id.

On appeal, Appellee raised various issues for review, including the contention that the corpus delicti had not been established on the homicide charge. ⁴ Assuming Appellee's statement to be inculpatory, the Superior Court agreed with Appellee, determining that case law both prior and subsequent to Boykin required that the independent evidence be more consistent with a crime than with an accident in order to establish corpus delicti. Id. at 135-36, 616 A.2d at 16-17 (citing Byrd; Leslie ). Noting that the Superior Court itself had relied on Byrd in recent cases, see, e.g., Commonwealth v. Forman, 404 Pa.Super. 376, 590 A.2d 1282 (1991), the court concluded that the Boykin standard had been impliedly overruled. McMullen, 420 Pa.Super. at 136, 616 A.2d at 17.

Using the Byrd standard, the Superior Court determined that corpus delicti was lacking because nothing indicated that Barcelona's death was more likely a homicide than it was an accident. Id. Therefore, the court vacated McMullen's convictions and judgments of sentence and remanded the matter for a new trial. This appeal by the Commonwealth followed.

Under the corpus delicti rule, extra-judicial inculpatory statements of the accused may not be admitted into evidence unless it is corroborated by independent evidence that a crime actually occurred. Commonwealth v. Ware, 459 Pa. 334, 365, 329 A.2d 258, 274 (1974); see also Commonwealth v. Smallwood, 497 Pa. 476, 484, 442 A.2d 222, 225 (1982) (rule extends to accused's statements, not purely formal confessions). The rule is designed to guard against "the hasty and unguarded character which is often attached to confessions and admissions and the consequent danger of a conviction where no crime has in fact been committed." Commonwealth v. Turza, 340 Pa. 128, 134, 16 A.2d 401, 404 (1940).

Literally "the body of the crime," corpus delicti consists of the occurrence of a loss or injury resulting from some person's criminal conduct. Ware, 459 Pa. at 365, 329 A.2d at 274. The criminal responsibility of the accused in particular is not a component of the rule. Commonwealth v. Ahlborn, 441 Pa.Super. 296, 301, 657 A.2d 518, 521, appeal pending, 334 W.D. Allocatur Docket (1995).

Since the corpus delicti rule attaches to inculpatory statements only, our starting point must be whether Appellee's statement was indeed of an inculpatory nature. While the Superior Court apparently assumed the statement to be inculpatory, the Commonwealth correctly notes that the statement was at least in part exculpatory because Appellee claimed that Wiser, not he, killed Barcelona.

However, as the Superior Court correctly observed in Commonwealth v. LaRosa, 283 Pa.Super. 264, 423 A.2d 1247 (1980), a statement denying commission of a crime may still be inculpatory if it places the declarant at the scene of the crime or indicates a motive for committing the crime. In LaRosa, a stabbing victim interviewed within minutes of his assault told police that LaRosa committed the stabbing. Id. at 266, 423 A.2d at 1248. At trial, however, the victim testified that he did not recall making the statement, nor did he know who stabbed him. Id. at 268-69, 423 A.2d at 1250. However, the statement was admitted into evidence, over LaRosa's objection, as an excited utterance.

Further, the...