Commonwealth v. Clemons

• Decision Date: 23 January 2019
• Docket Number: No. 738 CAP,738 CAP
• Citation: 200 A.3d 441
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Jordan Alexander CLEMONS, Appellant
• Court: Pennsylvania Supreme Court

200 A.3d 441

COMMONWEALTH of Pennsylvania, Appellee
v.
Jordan Alexander CLEMONS, Appellant

No. 738 CAP

Supreme Court of Pennsylvania.

Submitted: April 9, 2018
Decided: January 23, 2019

OPINION

JUSTICE WECHT

200 A.3d 447

In May 2015, a Washington County jury found Jordan Clemons guilty of first-degree murder for killing Karissa Kunco during the early morning hours of January 12, 2012. Upon the jury's recommendation, the trial court sentenced Clemons to death. In this direct appeal, Clemons asserts numerous instances of trial court error and challenges the weight and sufficiency of the evidence.¹ For the reasons that follow, we affirm Clemons' judgment of sentence.

I. Background

A. The Protection from Abuse Order

In late 2011, Clemons and Kunco were involved in a romantic relationship, and had lived together in the recent past. On December 18, 2011, at around 4:00 a.m., Kunco entered Clemons' residence and found him asleep. Clemons awoke and started screaming at Kunco. Clemons grabbed her by the arms and neck, leaving bruises and marks. Clemons also punched and scratched Kunco in the face. After the assault, Clemons went back to sleep.

Kunco called her mother, who subsequently took Kunco to a police station to report the assault. Police officers advised Kunco to seek a protection from abuse order ("PFA"). On December 19, 2011, Kunco filed a petition for a PFA in the Court of Common Pleas of Allegheny County. Therein, Kunco recounted the assault and asserted that she feared for her safety. She also indicated that Clemons had threatened to kill himself. The court (per the Honorable Arnold Klein) issued a temporary PFA, which was scheduled to expire on December 27, 2011. At approximately the same time that the PFA issued, police filed simple assault charges against Clemons, and a warrant issued for his arrest.

Kunco went to a hospital to be treated for her injuries. As part of the examination, hospital staff took photographs of her injuries. One such photograph depicted injuries on Kunco's face, including scratches on her nose and cheeks and swelling and bruising around her eyes.

A hearing to extend the temporary PFA was scheduled for December 27, 2011. However, that hearing was continued until January 23, 2012, by order of the Honorable Kathryn Hens-Greco, Administrative Judge. Judge Hens-Greco also extended the active status of the temporary PFA to the new hearing date. Clemons never was served with a copy of either the original PFA or the paperwork extending the PFA's active status. Nonetheless, Clemons knew that Kunco had obtained the PFA and that there was a pending warrant for his arrest. See Notes of Testimony

200 A.3d 448

("N.T."), Vol. I, 5/4/2015, at 67. Thus, at all times relevant to this appeal, Clemons knew that he was prohibited from contacting Kunco.

B. The Evening of January 11, 2012 and the Morning of January 12, 2012

On January 10, 2012, Clemons and Kunco began a Facebook conversation during which Clemons acknowledged that Kunco had obtained a PFA against him. The conversation on that date centered upon Clemons' apparent decision to turn himself in to the police. Kunco encouraged Clemons to stop running and to surrender to the authorities. She told Clemons that she loved him, that she was sorry, and that she missed him.

The conversation continued into January 11, 2012. Clemons repeated his plan to turn himself in, but said that he would not do so without first seeing Kunco. Clemons told Kunco that he would kill himself if she did not agree to meet him. He even told her that he already had purchased a gun. Clemons insisted that Kunco was the only person that could help him. Kunco was conflicted. She had positive feelings for Clemons, including love and empathy. At the same time, she was terrified of him. She repeatedly told Clemons that she was afraid of him, and that she was furious with him for putting her in that position. Kunco also felt that meeting Clemons would be a betrayal of her friends and family, who did not want her to associate in any way with Clemons due to the prior domestic abuse. Kunco explained to Clemons directly that seeing him would hurt everyone else in her life who loved her. Nonetheless, even though she felt that "[t]his is such a bad idea," N.T., Vol. I, 5/4/2015, at 74; Commonwealth's Ex. 2, she relented and agreed to meet him.

At approximately 5:30 p.m., Kunco, driving a black Toyota two-door convertible, picked Clemons up on Maytide Street in Brentwood, Allegheny County. Shortly thereafter, Kunco and Clemons drove to a PNC Bank branch in Brentwood, where Kunco used an ATM to withdraw funds. Amanda Stasiowski also was at the bank. Stasiowski observed Kunco, wearing a bright pink Point Park University sweatshirt, walk from the ATM to the black Toyota and enter the car on the driver's side. Stasiowski also saw the profile of a person sitting in the passenger seat, but she could not identify that person. Video footage from surveillance cameras at the bank later confirmed this account. Stasiowski was the last person (other than Clemons) to see Kunco alive.

Over the next few hours, Clemons used Kunco's debit card as well as a card belonging to Kunco's father, Paul Kunco. Clemons used Kunco's card to purchase gas at a service station in Washington, Pennsylvania. At approximately 12:30 a.m. on January 12, 2012, Clemons unsuccessfully attempted to withdraw funds from a drive-through ATM at a bank in Washington using Kunco's card. Surveillance footage confirmed the attempt, although it did not capture Clemons' face. The surveillance footage did show the left arm of the person using the ATM. That arm bore tattoos identical to those on Clemons' left arm.

At 2:10 a.m., Clemons entered a Walmart in Washington, where he used Paul Kunco's debit card to purchase a video game system. Clemons then returned to Kunco's car and drove away. This sequence of events also was captured by surveillance video.

At 6:00 a.m., Clemons tried to buy cigarettes at Winkle's Gas Station in Cecil Township. Leah-Ann Andrews, the attendant, knew Clemons from frequent prior

200 A.3d 449

interactions at the station. Despite this familiarity, Andrews asked Clemons for identification before selling him the cigarettes. Andrews detected no signs of intoxication, but noted that Clemons appeared nervous and fidgety. Instead of producing identification, Clemons held out an orange PNC Bank debit card. Clemons then turned around, walked out of the store, entered Kunco's vehicle, and drove away.

C. The Initial Investigation

Meanwhile, a few hours after Kunco picked up Clemons, Kunco's mother (Kathy Kunco) had grown concerned about Kunco's whereabouts. At approximately 8:36 p.m. on January 11, 2012, accompanied by Donny Makowski (Kunco's stepfather), Kathy Kunco went to the Baldwin Borough police station to report Kunco missing. The two met with Officer Sean Biagini, telling him that they believed that Clemons might be involved in Kunco's disappearance. Officer Biagini was able to learn of a number of addresses at which Clemons might be located. Officer Biagini dispatched other officers of his agency to attempt to find Clemons at those locations. Officer Biagini also broadcast a BOLO ("be on the lookout") alert for Clemons, Kunco, and Kunco's vehicle within a fifty-mile radius. During the initial stages of the investigation, Officer Biagini learned that there may have been an active warrant for Clemons' arrest. In light of this information, Officer Biagini contacted Washington County Probation Services in order to ascertain whether that department knew of Clemons' most recent address. Officer Biagini also had Kathy Kunco and Makowski complete a missing persons form, which the officer then submitted into a nationwide system that catalogues missing persons for law enforcement agencies.

Kathy Kunco also provided Officer Biagini with both Kunco's and Clemons' mobile telephone numbers. Officer Biagini transmitted the numbers to the supervisor of Baldwin Borough's dispatch center. The supervisor then "pinged" those numbers, a process that approximates the location of a particular cell phone based upon the location of the tower with which that phone is communicating via cellular signal. The "ping" indicated that Kunco's and Clemons' phones were within close proximity to one another, and that they were "pinging" off of a tower in Hickory Township, Washington County. Officer Biagini notified the Pennsylvania State Police (the agency providing law enforcement services for Hickory Township) that Kunco and Clemons could be in that vicinity, and requested that troopers canvass that area for Kunco's vehicle.

Officer Biagini continued to direct the investigation from the Baldwin Borough station, including requesting follow-up "pings" in an attempt to track Kunco's and Clemons' movements. Officer Biagini then learned of suspicious activity involving a debit card linked to Kunco's father, Paul Kunco. Officer Biagini contacted Paul Kunco and informed him that someone had used, attempted to use, or was in the process of using his debit card that night. The police used those attempted transactions, and those using Kunco's debit...