Commonwealth v. Colavita

Decision Date29 April 2010
Docket NumberNo. 20 EAP 2008,20 EAP 2008
Citation993 A.2d 874
PartiesCOMMONWEALTH of Pennsylvania, Appellant v. Christian COLAVITA, Appellee.
CourtPennsylvania Supreme Court



Arnold H. Gordon, Ronald Eisenberg, Hugh J. Burns, Jr., Peter Carr, Philadelphia District Attorney's Office, for Commonwealth of Pennsylvania.

David Rudovsky, Kairys, Rudovsky, Messing & Feinberg, Philadelphia, for Christian Colavita.



Chief Justice CASTILLE.*

The Commonwealth appeals from the published opinion and order of the Superior Court, which reversed the order of the PCRA1 court, vacated appellee's judgment of sentence for third-degree murder, and remanded the case for a new trial. The Superior Court held that appellee's trial counsel was ineffective in failing to object to the prosecutor's commentary concerning appellee having consulted with an attorney pre-arrest, finding in the process that the prosecutor's commentary violated the Due Process Clause of the Fourteenth Amendment and that the trial record, on its own, proved that counsel had no reasonable basis for failing to object. For the reasons that follow, we vacate the order of the Superior Court and remand to that court for proceedings consistent with this Opinion.

The facts adduced at trial demonstrated that in the early morning hours of Friday, December 10, 1999, Nicole Feehan was shot to death in her apartment on South Eighth Street in Philadelphia. At the time of her death, Ms. Feehan and appellee had been dating for a short period of time, according to her roommate, Dan Raz.

Mr. Raz testified that Ms. Feehan had been out late the night before the day in question, which was not unusual. He was in bed in his room, which was below Ms. Feehan's room, when he heard Ms. Feehan return at about 6:00 or 7:00 a.m. and go upstairs to her bedroom. Mr. Raz testified that after some time passed, "I heard a very loud noise which sounding sic like something very heavy hitting the floor. After I heard that noise, I heard a male's voice saying `oh, shit, Nicole, Nicole, I'm sorry.' In a kind of nervous laughter." Mr. Raz believed this to be appellee's voice and thought at first that something must have fallen over and broken upstairs in Ms. Feehan's room and that appellee was apologizing for having knocked it over. At around 8:00 a.m., Mr. Raz arose and went to his medical school classes. He did not return until about 8:00 p.m. that night, at which time he encountered Selina Osborne, Ms. Feehan's visiting friend from Australia, who was trying to find Ms. Feehan. When Mr. Raz entered the apartment and proceeded upstairs to Ms. Feehan's room, her door was open and he saw that she was prone on her bed. Mr. Raz "instantly knew something was wrong," felt her arm, which was "cold and stiff," and called 911. Ms. Feehan was later pronounced dead from a single gunshot wound to the mouth.

Ms. Osborne testified that she, Ms. Feehan, appellee, and several other friends including Rui DaSilva and Paula Fagulha went to several clubs in the Old City area of Philadelphia on the night before the shooting occurred. They had alcoholic drinks and used recreational drugs until the clubs closed, then went to Mr. DaSilva's apartment nearby to have more alcohol. Ms. Osborne decided to stay the night at Mr. DaSilva's after Ms. Feehan told her that she and appellee were going back to Ms. Feehan's apartment together and that Ms. Osborne would have to sleep on the couch if she came back with them. The next afternoon, when Ms. Osborne went to meet Ms. Feehan to go shopping, Ms. Feehan did not answer the door or her phone. Trying to track down Ms. Feehan, Ms. Osborne obtained appellee's cell phone number from Mr. DaSilva, but appellee did not answer her call. Ms. Osborne spent the rest of the day waiting for Ms. Feehan until Mr. Raz returned to the apartment that evening when they discovered Ms. Feehan's body.

Mr. DaSilva testified that he had been friends with appellee for two years at the time, during which they spoke almost every day and went out together almost every night. He noted that appellee carried a handgun with him every day. About two weeks prior to Ms. Feehan's death, Mr. DaSilva testified that the same individuals were together one night or early morning when appellee pulled out his concealed gun and showed it to them and that Ms. Feehan was "kind of startled." In Mr. DaSilva's opinion, it was an "uncomfortable situation" and no one was laughing. Mr. DaSilva corroborated that on the night of the shooting, he, appellee, Ms. Feehan, Ms. Osborne, and some others had consumed alcohol and used illegal drugs at some clubs, then went back to his apartment until the early hours of the morning. The next day, Mr. DaSilva tried to contact appellee numerous times on behalf of Ms. Osborne, but he never saw or heard from appellee again until the day of trial. He learned of Ms. Feehan's death later that night when he stopped at the bar where she had worked. Mr. DaSilva testified that he had been present once or twice when Ms. Feehan and appellee had argued with one another.

Paula Fagulha testified that she had known Ms. Feehan for several months; saw her almost every day; and that she was in the group that went out the night preceding the discovery of Ms. Feehan's body, but that she had left earlier in the evening when she learned that her daughter was sick. Ms. Fagulha had been present approximately two weeks earlier when appellee revealed his handgun at Mr. DaSilva's apartment, which Ms. Fagulha believed "surprised" Ms. Feehan. Ms. Fagulha related that Ms. Feehan and appellee seemed to argue quite often, which she learned from speaking with each of them independently.

The Philadelphia Police Department's crime scene investigator Avon Wilson processed the scene and testified that he observed no evidence of a struggle and that the manner of death was by an intraoral gunshot that exited through the back of Ms. Feehan's head. He did not believe that the gunshot wound was self-inflicted because of the way blood presented on Ms. Feehan's right hand.2 The Commonwealth's weapons expert concluded that the sole projectile recovered from the scene was consistent with the size of a bullet for a .45 caliber semi-automatic handgun. Edwin Lieberman, an assistant medical examiner who participated in Ms. Feehan's autopsy, testified that the blood on Ms. Feehan's right hand was inconsistent with her having held the gun in her own mouth.3 Dr. Lieberman also testified that Ms. Feehan's toxicology results indicated the presence of alcohol, cocaine, and Ecstasy, a controlled substance, in her bodily systems at the time of death.

The defense's forensics expert on blood staining and spattering, Herbert L. MacDonell, disagreed with Dr. Lieberman's opinion that the blood on Ms. Feehan's right hand indicated that the fatal gunshot wound was not self-inflicted. Professor MacDonell opined that the only way Ms. Feehan could have gotten the blood on her right hand was for her to have been holding the gun when it fired, although he could not say whether the gunshot was self-inflicted, accidental or suicide. Id. at 195-96.

Appellee's mother, Marianne Colavita, also testified for the defense, stating that appellee called her at about 9:30 a.m. on Friday, December 10, 1999 and told her that he would be away for the weekend. She did not speak to appellee again before receiving a visit from her cousin, Roy Minieri, who stopped by the family's house in Lawrenceville, New Jersey, on either Saturday or Sunday and told her and appellee's father that some sort of problem had arisen with appellee and that they should get a lawyer for him. On Sunday afternoon, Mrs. Colavita met appellee at the office of two lawyers in northern New Jersey. Her understanding was that Mr. Minieri had set up the meeting. The next day, the Colavitas' home was searched by a Philadelphia homicide detective accompanied by a member of the New Jersey State Police. Subsequently, Mrs. Colavita spoke with appellee several times, during which he told her that the lawyers had instructed him not to discuss what had happened, but said that he was not involved.

Appellee testified at trial that he first met Ms. Feehan where she worked, at Club Deco in Philadelphia, that they began seeing each other romantically roughly three weeks prior to the shooting, and that they went out nearly every night drinking and using cocaine during that time. Appellee testified that he always carried his.45 caliber Smith and Wesson handgun for personal protection and that he would place it under the bed whenever he stayed over at Ms. Feehan's apartment. Appellee testified that he liked Ms. Feehan a lot, but that the relationship was not serious. He could not recall any major disagreements. Appellee admitted to previously showing Ms. Feehan the gun when they were in bed. Appellee also admitted that he would "kid around with her with the gun" when they were both intoxicated. Appellee also admitted that approximately two weeks before the shooting, he had taken his gun out of his waistband, grabbed Ms. Feehan, and told her to "freeze." Appellee recalled that Ms. Feehan was a bit surprised, but testified that she was not upset or angry because she knew that he was joking around.

Appellee further testified that on the night of the shooting, he and Ms. Feehan had been out with friends and then went back to her apartment in the early hours of the morning, where they used more cocaine and ingested Ecstasy. Appellee claimed that he put his gun under the bed and that they began getting intimate when Ms. Feehan reached over him, grabbed the gun, pointed it at him, and told him to take off his clothes.4 Appellee testified that he took the gun from Ms. Feehan, took the bullets out of the clip, put the clip back in the gun, and started to place the gun...

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