Com. v. Overby

Decision Date24 October 2002
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Michael OVERBY, Appellant.
CourtPennsylvania Supreme Court

Mitchell Scott Strutin, Esq., Philadelphia, for Michael Overby.

Catherine Marshall, Esq., Philadelphia, Anthony V. Pomerantz, for Commonwealth of Pennsylvania.

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

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

Justice CAPPY.

This is a direct review of a sentence of death imposed by the Court of Common Pleas of Philadelphia County.1 Although Appellant, Michael Overby, alleges numerous errors related to his convictions for first-degree murder2, robbery3 and conspiracy4, we address only the issue related to Appellant's confrontation rights. Bruton v. United States, 391 U.S. 123, 136, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). For the reasons stated herein, we hold that the trial court erred in admitting the statement of Appellant's co-defendant in the manner in which it was redacted and that such error was not harmless. Accordingly, we reverse the judgment of sentence and remand for a new trial as to all charges.

The convictions arose out of the following set of facts.5 Ronald and June Pinkett, neighbors of Lillian Gaines, the victim, saw Isaac Young, Appellant and Gaines outside of Gaines' home between 5:00 and 5:30 a.m. on September 28, 1990. N.T., 7/10/1996, p. 90, 166-67. June Pinkett testified that she had seen Appellant in Gaines' presence on previous occasions. Id. at 94-95. She stated that on the morning of the murder, she observed Gaines crying and that she overheard a discussion concerning Gaines owing money to Appellant or some other third person. Id. at 91. Pinkett asked Gaines if everything was okay and Gaines responded that everything was fine. Id. Appellant allegedly told Ms. Pinkett to mind her own business and the three individuals then went into Gaines' residence. Id. at 91, 98.

Edzina Fletcher, Gaines' roommate, found Gaines early that morning with her hands and feet bound and a piece of cloth in her mouth.6 Id. at 31-32. Gaines' pants were partially pulled down. Id. at 33. Fletcher noted that a 19" television was missing from the home. Id. at 36.

Later that day, Dwayne Elliott, Appellant's co-defendant, tried to exchange a 19" television for drugs. N.T., 7/12/1996, p. 9; N.T., 7/12/1996, p. 24.

In January of 1992, Nicole Schneyder was brought into the police station by a plain-clothes police officer for questioning regarding the murder of Gaines. She gave a statement to Detective Dominic Mangoni, a detective in the homicide division of the Philadelphia Police Department. Detective Mangoni recorded the statement verbatim and after the statement was taken, Schneyder reviewed and signed it. N.T., 7/12/1996, p. 21. Schneyder informed the police that on the day before the incident, Appellant told her that he was going to "run up", i.e., rob someone because he needed some money. N.T., 7/12/1996, p. 22. Schneyder also informed the police that about a week following the incident, Elliott told her that he was involved in the Gaines incident. Id. at 23. Elliott also told Schneyder that Appellant, another person and he were just there to rob the house, but that Gaines gave Appellant "a hard way to go,"; that Appellant told Elliott to grab her; that Elliott grabbed her and held her while another person tied her up, Id.; that Appellant strangled her, Id. at 23-24; and that then, Elliott removed Gaines' television from her house and took it to Miss Babe's house to sell, Id. at 24.

Based upon the above information, the police arrested Appellant and charged him with first-degree murder, robbery and conspiracy related to the murder of Gaines. The matter proceeded to preliminary hearing at which Appellant, Elliott and Young were present. At the preliminary hearing, the Commonwealth called Schneyder as a witness. She recanted her prior statement to the police. She testified that she did not remember speaking with either Appellant or Elliott. Further, she admitted that she made the statements, but asserted that she made them in order to "tell them [the police] what they wanted to hear so [she] could get out of homicide." N.T., 1/10/1995, p. 13. Over objections by defense counsel, Schneyder's prior statement to the police was admitted under Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986), as a prior inconsistent statement of an available witness.7 The portion of Schneyder's statement that contained Elliott's inculpatory statement to Schneyder was redacted to omit any reference to Appellant. At the conclusion of the hearing, the court determined that the Commonwealth presented sufficient evidence to proceed in its case against Appellant and scheduled the case for trial.

At the first jury trial, Appellant was tried jointly with Isaac Young and Elliott.8 Nicole Schneyder did not appear as a witness. She was declared unavailable and her preliminary hearing testimony wherein she recanted her statement to the police was read to the jury. After the preliminary hearing testimony was read at trial, Nicole Schneyder appeared. The Commonwealth and both defense counsels declined to call her as a witness. The court also allowed Detective Mangoni to read the prior statement that Schneyder made at the police station. Although counsel initially objected to Detective Mangoni's testimony, when faced with the choice of either renewing an objection to Mangoni's testimony or calling Nicole Schneyder to the stand, defense counsel did not further object to Mangoni's testimony. Following the trial, Appellant was convicted of robbery and conspiracy. The jury was undecided on the first-degree murder charge with regard to Appellant and as to all charges against Elliott. The trial court declared a mistrial, and subsequently scheduled a retrial.

At the second trial, a similar procedure was used involving the testimony of Schneyder. At the conclusion of the second trial, Appellant was convicted of first-degree murder. The jury found co-defendant, Elliott, guilty of robbery, but not guilty of murder and conspiracy. During the penalty phase, the Commonwealth incorporated the testimony that indicated that the killing occurred during a robbery, as well as the previous convictions for robbery and conspiracy. Following the penalty phase, the jury found one aggravating circumstance—that the killing occurred in the perpetration of a felony9—and no mitigating circumstances and sentenced Appellant to death.10

Appellant appealed to this court, asserting, inter alia, that Elliott's hearsay statement to Nicole Schneyder, as redacted at both trials, violated his right of confrontation under the Sixth Amendment of the United States Constitution.11Bruton v. United States,391 U.S. 123, 136, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Appellant urges that he is entitled to a new trial. We agree.12

Appellant's argument, that we address today, implicates the Confrontation Clause of the United States Constitution. The Confrontation Clause provides that "in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. CONST. amend. VI. The Confrontation Clause is applicable to the States through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Although the origins of the Clause are obscure13, the United States Supreme Court has reiterated that the fundamental right that the Clause seeks to preserve is the defendant's right to a fair trial. Id. at 405, 85 S.Ct. 1065; see also Lee v. Illinois, 476 U.S. 530, 539-40, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986)

; Bruton, 391 U.S. at 126,

88 S.Ct. 1620. The right of confrontation contributes to the perception as well as the reality of fairness in the criminal justice system by promoting an open contest between the accused and the accuser. In addition to serving these "symbolic goals ... the right to confront and to cross-examine witnesses is primarily a functional right that promotes reliability in criminal trials." Lee, 476 U.S. at 540,

106 S.Ct. 2056. Thus, at its most basic level, the Sixth Amendment seeks to ensure that the trial is fair and reliable by preserving an accused's right to cross-examine and confront the witnesses against him.

In order to protect these rights, the Court has developed different analyses under the Confrontation Clause depending on how a statement is used at trial. For example, where a hearsay statement, given by a non-testifying declarant, is offered as evidence to establish the guilt of the non-declaring defendant, the court must consider whether it was admitted pursuant to either a "firmly rooted hearsay exception" or contains "particularized guarantees of trustworthiness." Ohio v. Roberts, 448 U.S. 56, 66-67, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Only if the hearsay statement was admitted under such circumstances will such a statement be deemed to respect the non-declaring defendant's right of confrontation. Roberts; see also Lilly, 527 U.S. at 124-25, 119 S.Ct. 1887; Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987)(admission of co-conspirator hearsay statement did not violate the Confrontation Clause because it fell within a firmly rooted hearsay exception); Lee, 476 U.S. at 543,106 S.Ct. 2056. On the other hand, where a hearsay statement is not admitted against the non-declaring co-defendant as evidence, then the court must consider whether sufficient precautions have been taken to insulate the non-declaring co-defendant from spillover prejudice due to the admission of the hearsay statement. Gray v. Maryland, 523 U.S. 185, 195, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998); see also Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987)

; Lee, 476 U.S. at 542,

106 S.Ct. 2056 (explaining the purpose of the Bruton rule); Bruton. Where the precautions are insufficient, then the...

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