Commonwealth of Pennsylvania v. Dupre, 2005 PA Super 12 (PA 1/11/2005), 818 MDA 2003.
| Decision Date | 11 January 2005 |
| Docket Number | No. 818 MDA 2003.,818 MDA 2003. |
| Citation | 2005 PA Super 12 |
| Court | Pennsylvania Supreme Court |
| Parties | COMMONWEALTH OF PENNSYLVANIA, Appellee v. TRACY D. DUPRE, Appellant. |
Appeal from the Judgment of Sentence in the Court of Common Pleas of Northumberland County, Criminal Division, No(s): 01-914.
Before: STEVENS, McCAFFERY and TAMILIA, JJ.
OPINION BY TAMILIA, J.:
¶ 1 Tracy Dupre appeals the December 10, 2002 judgment of sentence of life imprisonment without parole and a consecutive aggregate six (6) months to nineteen (19) years incarceration imposed after a jury convicted her of first degree murder,1 aggravated assault,2 simple assault,3 endangering the welfare of a child,4 concealing the death of a child,5 criminal conspiracy to conceal the death of a child,6 abuse of a corpse,7 hindering apprehension or prosecution,8 and criminal conspiracy to hinder apprehension or prosecution.9
¶ 2 The conviction arose from the discovery of an infant corpse in a trash compactor at a waste station. An investigation led police to appellant. After initially denying she had been pregnant, she admitted she gave birth to the child in the bathtub. She told police the baby was born alive and that she allowed it to drown. She placed the baby in a garbage bag and kept her in the kitchen. When Scott Kinney, who was appellant's boyfriend and the baby's father, came home, appellant told him where the baby was. The trash was taken to a dumpster a few days later.
¶ 3 The forensic examiner who performed the autopsy concluded that the baby had taken several breaths before she died. She also found tightly wadded tissue in the back of the baby's throat. Based upon the location and size of the wad, she determined that it was intentionally placed there. She concluded the cause of death was asphyxiation due to the wadded tissue or due to drowning.
¶ 4 A jury convicted appellant as indicated above. Appellant filed post-sentence motions which were denied. This timely appeal followed in which appellant, imprudently, enumerates seventeen very verbose issues, typed in a small font, and spanning two pages of her brief. See Appellant's brief at 3-4. We remind appellant that the effectiveness of appellate advocacy may suffer when counsel raises numerous issues to the point where a presumption arises that there is no merit to any of them. Commonwealth v. Davidson, 2004 Pa. Super 396; see also, U.S. v. Hart, 693 F.2d 286, 287 n.1 (3d Cir. 1982). The Commonwealth urges this Court to dismiss the appeal for appellant's failure to comply with the Pennsylvania Rules of Appellate Procedure. Rule 2116 provides Pa.R.A.P. 2116(a). "Failure to conform briefs to the requirements of the Rules of Appellate Procedure may result in the quashing or dismissing of an appeal where the defects in the brief are `substantial.'" Davidson, supra, citing Amicone v. Rok, 839 A.2d 1109 (Pa.Super. 2003); see also Pa.R.A.P. 2101.
¶ 5 Although appellant lists seventeen issues, she omitted argument on two of them. Four of her issues, moreover, are challenges to the sufficiency of the evidence, four are challenges to the weight of the evidence, and two are challenges to the trial court's failure to suppress statements she made to police. We find the defects in appellant's brief are not so substantial as to preclude appellate review and, therefore, we decline to dismiss or quash the appeal. See Davidson, supra (). To facilitate our review, however, we have rephrased the issues she raised as follows:
1. Whether the verdicts on all charges were obtained in violation of the corpus delicti rule?
2. Whether the evidence was insufficient to support the verdicts on all charges?
3. Whether the verdicts on all charges were against the weight of the evidence?
4. Whether the trial court erred in sending a sketch of an adult-sized larynx to the jury room?
5. Whether the trial court erred in not providing the defense a post partum expert and limiting the defense to a Pennsylvania expert?
6. Whether the trial court erred in not suppressing statements appellant made to police?
7. Whether the trial court erred in not granting a change of venue or a change of venire?
8. Whether the trial court erred in not sentencing the defendant within 90 days of conviction pursuant to Pa.R.Crim.P. 704?
See Appellant's brief at 3-4. We address these issues seriatim.
The corpus delicti rule is a rule of evidence. Our standard of review on appeals challenging an evidentiary ruling of the trial court is limited to a determination of whether the trial court abused its discretion. Commonwealth v. Verticelli, 550 Pa. 435, 441, 706 A.2d 820, 822-823 (1998) (citations omitted).10
The corpus delecti [sic] rule places the burden on the prosecution to establish that a crime has actually occurred before a confession or admission of the accused connecting him to the crime can be admitted. The corpus delecti [sic] is literally the body of the crime; it consists of proof that a loss or injury has occurred as a result of the criminal conduct of someone. The criminal responsibility of the accused for the loss or injury is not a component of the rule. The historical purpose of the rule is to prevent a conviction based solely upon a confession or admission, where in fact no crime has been committed.
Commonwealth v. Rivera, 828 A.2d 1094, 1103-1104 (Pa.Super. 2003), appeal denied, 577 Pa. 672, 842 A.2d 406 (2004), citing Verticelli, at 441, 706 A.2d at 822-823. "The corpus delicti in a homicide case consists of proof `that the person for whose death the prosecution was instituted is in fact dead and that the death occurred under circumstances indicating that it was criminally caused by someone.'" Commonwealth v. Meder, 611 A.2d 213, 217 (Pa.Super. 1992), appeal denied, 533 Pa. 643, 622 A.2d 1375 (1993), quoting Commonwealth v. Davis, 454 A.2d 92, 97 (Pa.Super. 1982) (emphasis in original). The Commonwealth need not prove the existence of a crime beyond a reasonable doubt as an element in establishing the corpus delicti of a crime, but the evidence must be more consistent with a crime than with accident. Commonwealth v. McMullen, 745 A.2d 683 (Pa.Super. 2000), appeal denied, 563 Pa. 700, 761 A.2d 549 (2000).11
¶ 6 Appellant complains her inculpatory statements alone convicted her. She contends the convictions on all charges violate the corpus delicti rule because the Commonwealth failed to prove beyond a reasonable doubt that the baby was born alive and, even if the Commonwealth did prove the baby was born alive, it failed to prove the baby's death was the result of criminal means. She bases this contention primarily upon the forensic pathologist's testimony that she was unsure when the wad of tissue, i.e. the bolus, was placed in the baby's throat. See N.T., Trial, at 615-616. Appellant also argues the evidence here is as consistent with innocence as it is with guilt. She says her concealment of the pregnancy was more consistent with her alleged desire to keep the baby since she previously and successfully delivered a baby at home, and she was concerned Children and Youth Services would take the baby since she had a "very poor relationship" with the organization. Appellant's brief at 15.
¶ 7 The trial court concluded the evidence, independent of the confession, was highly indicative of criminal activity and more consistent with criminal activity than with accident. This conclusion was based upon the fact that the baby was found in a trash compactor at a waste station; appellant and Kinney concealed the pregnancy; appellant never sought prenatal care or purchased any items in preparation for the infant's arrival; appellant never called for medical assistance at the time of delivery despite that fact that she said the child was not responding properly; appellant placed the infant in a garbage bag and let the baby decompose in the kitchen for days, until the night before garbage pick-up when the bag was taken to the dumpster; and the forensic pathologist's testimony that the wad of tissue found in the back of the infant's throat had to have been pushed there. Trial Court Opinion, Sacavage, J., 5/10/04, at 4-5. Appellant's testimony demonstrates that these facts are not in dispute. Upon review, we find the trial court committed no abuse of discretion in concluding that the baby's death is far more consistent with criminal means than with accident and that the Commonwealth met its burden here in establishing the corpus delicti for the crime of homicide.
¶ 8 As for the other crimes with which appellant was charged, we note Pennsylvania has adopted the "closely related crimes" exception to the corpus delicti rule. Commonwealth v. Fears, 575 Pa. 281, 306, 836 A.2d 52, 67 (2003), citing McMullen, supra. This exception provides that where a defendant's confession relates to separate crimes with which he is charged, and where independent evidence establishes the corpus delicti of only one of those crimes, the confession may be admissible as evidence of the commission of the other crimes. Fears, at 306, 836 A.2d at 67. This exception applies only where the relationship between the crimes is sufficiently close so as to ensure that the purpose underlying the corpus delicti rule, i.e., to prevent conviction where no crime has occurred, is not violated. Id.; see also Commonwealth v. Taylor, 574 Pa. 390, 831 A.2d 587 (2003). In addition to first degree murder, appellant was charged with and convicted of aggravated assault, simple assault,...
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