Com. v. Wholaver

• Decision Date: 22 August 2006
• Citation: 903 A.2d 1178
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Ernest R. WHOLAVER, Jr., Appellant.
• Court: Pennsylvania Supreme Court

903 A.2d 1178

COMMONWEALTH of Pennsylvania, Appellee v. Ernest R. WHOLAVER, Jr., Appellant.

Supreme Court of Pennsylvania.

Argued May 9, 2006.

Decided August 22, 2006.

Paul Watson Muller, Anne Elizabeth Gingrich, for Ernest R. Wholaver, Jr.

Francis T. Chardo, Amy Zapp, Harrisburg, for Com.

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

OPINION

Justice SAYLOR.

This is a capital direct appeal challenging the appellant's convictions and sentences of death arising from, among other criminal acts, his killing of his wife and two children in Middletown, Pennsylvania.

As background, in July 2002, Appellant, Ernest R. Wholaver, Jr., was charged with multiple sexual offenses for alleged conduct involving his two daughters, Victoria and Elizabeth, the latter of whom was still a minor at the time the charges were lodged. On behalf of Elizabeth, Appellant's wife, Jean Wholaver, obtained an order under the Protection From Abuse Act, see 23 Pa.C.S. §§ 6101-6122, which included provisos that Appellant was evicted from the family's Middletown residence, with no right or privilege of entry, and was prohibited from possessing or acquiring firearms. Appellant subsequently took up residence with his mother, father, and younger brother, Scott Wholaver, in Cambria County.

Just after midnight on December 24, 2002, Appellant set out for the Middletown residence with Scott Wholaver. While his brother waited in the vehicle about a block away, Appellant approached the house; cut telephone and other wires leading to it; forcibly gained entry; and shot Jean, Victoria, and Elizabeth to death with a pistol, leaving Victoria's nine-month-old girl, Madison, alive but alone and unattended. Appellant and his brother then drove to Clearfield County, where Appellant discarded the pistol, a shotgun,¹ and other potentially incriminating items at a remote location.

Following the discovery of the bodies and Madison (who survived) approximately twenty-eight hours after the killings, police obtained search warrants for the Middletown residence to gather evidence. They later executed warrants to search Appellant's person, his vehicle, and the Cambria County home where he was living. Appellant was arrested and charged, inter alia, with three counts of first-degree murder, and the Commonwealth furnished notice that it intended to pursue imposition of the death penalty.

Prior to trial, Scott Wholaver pled guilty to third-degree murder and agreed to cooperate as a Commonwealth witness. He led police to the Clearfield County location, from where they retrieved the firearms and other evidence.

Also before trial, the prior sexual offense charges were consolidated with the murder cases. Appellant secured a change of venire, in light of pre-trial publicity. Further, he sought suppression of all evidence deriving from the execution of the search warrants, arguing that the warrants were overly broad and/or manifested various technical defects. The common pleas court refused to suppress the evidence obtained from the Middletown residence, inter alia, based on Appellant's lack of any reasonable expectation of privacy in a place from which he was barred under an extant protection-from-abuse order. With respect to the remaining warrants, the court found sufficient specificity and any technical deficiency insufficient to require the application of the exclusionary rule.

At trial, the Commonwealth presented Scott Wholaver as a central witness. He testified that, following Jean Wholaver's decision to seek a divorce, Appellant stated that he would shoot her. He then described the brothers' nocturnal trip to the Middletown residence on December 24th, indicating that Appellant had claimed that he wished only to retrieve his dog. The trip involved furtive activities and was corroborated by a surveillance video obtained by police from a convenience store located mid-way between Cambria County and Middletown. Scott Wholaver testified that, upon arrival in Middletown, he was told to stop the vehicle to permit Appellant to access the rear seat; Appellant then directed him to proceed to a location about a block from the Wholaver residence; he parked the vehicle there and waited as Appellant proceeded toward the residence; Appellant returned five to ten minutes later appearing shaken; Appellant instructed him to drive to the remote Clearfield County location where he saw the shotgun in the rear of the vehicle and watched Appellant shuttle from the vehicle to the woods; and Appellant told him to repeat a false story if asked about his whereabouts during the time period spanning these activities. The Commonwealth also offered testimony from several prisoner-witnesses, who described various incriminatory statements by Appellant, as well as evidence of Appellant's jail-based efforts to hire a West Virginia man to kill the father of Victoria's child, Francisco Ramos, and to fabricate evidence suggesting that Mr. Ramos had killed Jean, Victoria, and Elizabeth Wholaver.² Ballistics evidence was presented to connect the pistol found in Clearfield County to the killings (although the association could not be made firmly, because both the firearm and bullets were degraded). Further, the Commonwealth presented evidence that the pistol was registered to Appellant's uncle. The Commonwealth also introduced the preliminary hearing testimony of Elizabeth and Victoria Wholaver from the sexual assault case under the forfeiture-by-wrongdoing exception to the hearsay rule, see Pa.R.E. 804(b)(6), on the theory that they were killed to prevent their testimony. See id.

Appellant was convicted of first-degree murder pertaining to each of the killings, and of the separate crimes of killing prosecution witnesses, conspiracy, reckless endangerment (of Madison), burglary, and criminal solicitation related to his attempt to have Mr. Ramos killed. He was acquitted of the sexual offenses, however.

In the penalty phase of the trial, the Commonwealth pursued the in-perpetration-of-a-felony, grave-risk, multiple-murders, and protection-from-abuse-violation aggravators, see 42 Pa.C.S. § 9711(d)(6), (7), (11), (18), incorporating the evidence adduced in the guilt phase.³ Appellant pursued the no-significant-history-of-prior-criminal-convictions and catch-all mitigators. See 42 Pa.C.S. § 9711(e)(1), (8). The jury found all of the aggravators, at least some of the jurors accepted Appellant's proffered mitigators, and the jurors unanimously returned three death sentences as a consequence of their individual weighing determinations. See 42 Pa.C.S. § 9711(c)(iv).

Substitute counsel filed of a notice of appeal, and the trial court issued an order requiring Appellant to submit a statement of matters complained of on appeal under Rule of Appellate Procedure 1925(b). Appellant sought and secured multiple extensions but his appellate counsel failed to file the required statement within the last applicable deadline.

Presently, Appellant challenges the verdicts, based on claims that: the president judge of the common pleas court erred by allocating insufficient funds and/or discretion to the defense to obtain qualified psychiatric and mitigation experts and an investigator; the trial court erred in failing to sever the sexual assault charges from the murder case; the trial court erred in permitting the Commonwealth to introduce prior unsworn statements made by the victims, as well as the preliminary hearing testimony of Victoria and Elizabeth from the sexual assault case; the trial court erred on various grounds in refusing to suppress evidence deriving from police execution of allegedly defective search warrants; the trial court erred in failing to exclude the testimony of Scott Wholaver, as this evidence assertedly was the product of an illegal plea agreement; and the trial court erred in refusing to permit Appellant to introduce, under the excited utterance exception to the hearsay rule, a purportedly exculpatory hearsay statement that he allegedly made to Scott Wholaver.

In its brief, by virtue of Appellant's failure to file a timely statement of matters complained of on appeal, the Commonwealth initially invoked waiver under this Court's decisions in Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998), Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775 (2005), and Commonwealth v. Schofield, 585 Pa. 389, 888 A.2d 771 (2005), with regard to all issues other than those subject to automatic review upon the entry of a death sentence. In a post-submission communication, however, the Commonwealth sought to withdraw its waiver objection with respect to the suppression issues only, primarily based on the representation that it seeks to avoid any potential collateral consequences that might be associated with such waiver on federal habeas corpus review. The Commonwealth also provides substantive responses to all issues, in the event that the waiver by Appellant would not be enforced.

We begin our review of the sufficiency of the evidence, which is automatic. See Commonwealth v. Zettlemoyer, 500 Pa. 16, 26 n. 3, 454 A.2d 937, 942 n. 3 (1982). To establish the offense of first-degree murder, the Commonwealth must prove the fact of the killing and the defendant's involvement, and it must establish malice and specific intent to kill on the part of the defendant. See Commonwealth v. Collins, 550 Pa. 46, 50, 703 A.2d 418, 420 (1997). In the sufficiency assessment, the evidence is viewed in the light most favorable to the Commonwealth, as verdict winner. See id.

In the present case, the evidence offered at trial by the Commonwealth is plainly sufficient to support the first-degree murder convictions and death sentences. The prosecution presented expert testimony from a forensic pathologist concerning his examination of the victims' bodies and his opinion that the manner of the deaths was homicide. Although no eyewitnesses to the actual killings were available, evidence was adduced...