Com. v. Wholaver

• Decision Date: 18 February 2010
• Docket Number: No. 531 CAP.,531 CAP.
• Citation: 989 A.2d 883
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Ernest WHOLAVER, Jr., Appellant.
• Court: Pennsylvania Supreme Court

989 A.2d 883

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

No. 531 CAP.

Supreme Court of Pennsylvania.

Argued May 13, 2008.

Decided February 18, 2010.

Ari Daniel Weltzman, for Ernest Wholaver, Jr.

Edward Michael Marsico, Jr., Dauphin County District Attorney's Office, Amy Zapp, Francis Chardo, Harrisburg, for Commonwealth of Pennsylvania.

BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, JJ.

OPINION

Justice EAKIN.

This is a direct appeal nunc pro tunc from the judgment of sentence for first degree murder, killing prosecution witnesses, conspiracy, reckless endangerment of another person, burglary, and criminal solicitation; appellant's direct appeal rights were reinstated nunc pro tunc after appellate counsel's failure to file a timely Pa.R.A.P. 1925(b) statement resulted in waiver of issues appellant wished to raise when his appeal was initially filed. See Commonwealth v. Wholaver, 588 Pa. 218, 903 A.2d 1178, 1183-85 (2006). Finding no merit to appellant's claims, we affirm.

In July, 2002, appellant was charged with multiple sexual offenses involving his daughters, Victoria and Elizabeth. Victoria had a nine-month-old daughter, Madison, whose father was Francisco Ramos. Elizabeth was still a minor at the time the charges were filed. To protect Elizabeth, her mother, Jean, obtained a Protection From Abuse (PFA) order against appellant, evicting him from the family home in Middletown with no right to reenter it. Jean, Victoria, and Elizabeth testified at appellant's preliminary hearing. Trial on these charges was scheduled for January 13, 2003.

Shortly after midnight on December 24, 2002, appellant and his brother Scott drove from Cambria County, where he was living, to the house where his wife and daughters resided. While Scott waited in the car, appellant forcibly entered the home and fatally shot his wife and daughters, leaving his granddaughter, Madison, alive but unattended until the next day, when the bodies were discovered.

Following a search of the Wholaver home, appellant's person, and his vehicle, appellant was charged with three counts of first degree murder and related offenses the prior pending charges were consolidated with the murder charges. Appellant filed a motion to suppress the physical evidence, as well as incriminating statements he made to fellow inmates, which was denied.

At the guilt phase of appellant's trial, the Commonwealth presented the testimony of co-defendant Scott Wholaver and several prisoner-witnesses, who related incriminating statements appellant made to them in prison, as well as evidence of appellant's efforts to hire a hit man to kill Francisco Ramos and fabricate evidence suggesting Ramos was responsible for the Wholaver murders. The Commonwealth also introduced the testimony of Victoria and Elizabeth from the preliminary hearing on the sexual offenses under the forfeiture by wrongdoing exception to the hearsay rule, see Pa.R.E. 804(b)(6), on the theory they were killed to prevent their testimony at the trial for the sexual offenses. The jury convicted appellant of first degree murder and the related offenses, but acquitted him of the sexual offenses.

At the penalty phase, the Commonwealth pursued the aggravators at 42 Pa. C.S. § 9711(d)(6) (defendant committed killing while in perpetration of felony), (d)(7) (in commission of offense, defendant knowingly created grave risk of death to another person in addition to victim), (d)(11) (defendant has been convicted of another murder committed before or at time of offense at issue), and (d)(18) (at time of killing, defendant was subject to PFA restricting his behavior toward victim). The evidence from the guilt phase was incorporated into the penalty phase. Appellant pursued the mitigators at 42 Pa.C.S. § 9711(e)(1) (defendant has no significant history of prior criminal convictions) and (e)(8) (any other evidence of mitigation concerning defendant's character, record, and circumstances of offense). The jury found all of the aggravators, and some of the jurors accepted appellant's proffered mitigators; the jury returned three verdicts of death.¹

On direct appeal, we concluded the evidence was sufficient to support appellant's first degree murder conviction, as well as the aggravating circumstances. Wholaver, at 1182-83. However, we held the other issues appellant wished to raise² were waived due to appellate counsel's failure to file a timely Pa.R.A.P. 1925(b) statement, despite being granted numerous continuances. Id., at 1184 (quoting Commonwealth v. Castillo, 585 Pa. 395, 888 A.2d 775, 780 (2005) (reaffirming bright-line rule in Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306, 309 (1998), that any issues not raised in Rule 1925(b) statement are waived), and citing Commonwealth v. Schofield, 585 Pa. 389, 888 A.2d 771, 772 (2005) (applying Lord's strict waiver rule despite trial court's receipt of imperfect Rule 1925(b) statement and preparation of Rule 1925(a) opinion)). Accordingly, we affirmed the judgment of sentence.

Appellant filed a timely petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, seeking reinstatement of his right to seek review on direct appeal nunc pro tunc, which the PCRA court granted. Appellant raises the following issues for review:³

1. Whether the president judge's placing limits on the funds available for hiring defense experts and investigators denied appellant qualified experts and an adequate investigation.

2. Whether the trial court erred in denying appellant's motion to suppress incriminating statements made to a fellow inmate.

3. Whether the trial court erred in denying appellant's motion to suppress evidence seized from the residence where the murders occurred.

4. Whether the trial court erred in denying appellant's motion to sever the sexual offense and solicitation to commit murder charges from the murder charges.

5. Whether the trial court erred in denying appellant's motion to dismiss pursuant to Pa.R.Crim.P. 600.

6. Whether the trial court violated appellant's right to a fair trial and impartial jury by excusing potential jurors for cause.

7. Whether the trial court erred in allowing the Commonwealth to introduce prior unsworn statements allegedly made by two of the victims, as well as their preliminary hearing testimony.

8. Whether the trial court erred in not instructing the jury regarding the limited admissibility of the sexual offense evidence.

9. Whether the trial court erred in denying appellant's motion in limine to exclude co-defendant Scott Wholaver's testimony on the grounds it lacked a factual basis and was the product of an illegal plea agreement.

10. Whether the trial court erred in ruling appellant's hearsay statement to co-defendant Scott Wholaver was inadmissible under the present sense impression or excited utterance exceptions to the hearsay rule.

11. Whether the prosecutor engaged in misconduct in misrepresenting commutation statistics, leading appellant to withdraw his request for an instruction pursuant to Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994).

12. Whether the prosecutor engaged in misconduct during closing argument to the jury at the penalty phase.

13. Whether the trial court's penalty phase jury instructions violated appellant's rights under the Eighth and Fourteenth Amendments to the United States Constitution, Article I, §§ 1, 9 of the Pennsylvania Constitution, and the Sentencing Code.

14. Whether the trial court erred by allowing trial spectators to wear buttons displaying the victims' images.

15. Whether the trial court erred in incorporating evidence of the condition in which appellant's granddaughter was found at the crime scene into the penalty phase for the limited purpose of establishing the time of death.

Waiver

The Commonwealth asserts that issues 6, 8, 11, portions of issue 12, and issues 13 and 14 are waived because defense counsel failed to make timely objections or otherwise preserve the claims. To the extent appellant argues counsel's ineffectiveness for failing to preserve these issues, the Commonwealth argues Commonwealth v Grant, 572 Pa. 48, 813 A.2d 726, 737 (2002) (holding review of ineffectiveness claims should be deferred until collateral review) holds such claims should not be reviewed on direct appeal.

In issue 6, appellant contends the trial court violated his right to a fair trial and impartial jury by excusing for cause a venireman who expressed conscientious or religious objections to the death penalty, without any record proof or finding this potential juror would be substantially impaired in performing his duties. Following the venireman's statement that he could not impose the death penalty under any circumstances because of his religious beliefs, the prosecutor moved to excuse him for cause, and defense counsel did not object—understandably, because the potential juror had just stated he would not be able to follow the law. See N.T. Voir Dire, 6/1/04, at 149. As no objection was posed, this issue was not preserved and is waived. See Pa.R.A.P. 302(a) (issues not raised in lower court are waived and cannot be raised for first time on appeal); Commonwealth v. Piper, 458 Pa. 307, 328 A.2d 845, 847 (1974).

In issue 8, appellant argues the jury should have been contemporaneously instructed the evidence concerning the sexual offenses involving his daughters was admissible for the limited purpose of showing motive for the murders. However, although trial counsel objected to the admission of this evidence, he did not request a limiting instruction; therefore, the issue of trial court error for not giving such instruction is waived. See Commonwealth v. Bryant, 579 Pa. 119, 855 A.2d 726, 739 (2004) (failure to request cautionary instruction upon introduction of evidence constitutes waiver of claim of trial court error in failing to issue cautionary instruction).

In issue 11, appellant claims the prosecutor...