Commonwealth v. Fitzpatrick, 1498 MDA 2015

• Decision Date: 12 April 2017
• Docket Number: No. 1679 MDA 2015,No. 1498 MDA 2015,1498 MDA 2015,1679 MDA 2015
• Citation: 159 A.3d 562
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Joseph Bernard FITZPATRICK, III, Appellee Commonwealth of Pennsylvania, Appellee v. Joseph Bernard Fitzpatrick, III, Appellant
• Court: Pennsylvania Superior Court

159 A.3d 562

COMMONWEALTH of Pennsylvania, Appellant

v.Joseph Bernard FITZPATRICK, III, Appellee

Commonwealth of Pennsylvania, Appellee

v.Joseph Bernard Fitzpatrick, III, Appellant

No. 1498 MDA 2015

No. 1679 MDA 2015

Superior Court of Pennsylvania.

Argued September 20, 2016

FILED APRIL 12, 2017

Timothy J. Barker, Assistant District Attorney, York, for Commonwealth.

Christopher A. Ferro, York, for Fitzpatrick.

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and STEVENS, P.J.E.^*

OPINION BY SHOGAN, J.:

The Commonwealth of Pennsylvania appeals from the order granting the post-sentence motion for judgment of acquittal filed by Appellee, Joseph Bernard Fitzpatrick, III.¹ In addition, Appellee has filed a cross-appeal. For the following reasons, we reverse and remand for reinstatement of the jury verdict and judgment of sentence, and we quash Appellee's cross-appeal.

The trial court summarized the factual and procedural history of this case as follows:

On June 6, 2012, emergency personnel were dispatched to 2288 Old Forge Road in Chanceford Township, which is located in York County, Pennsylvania. EMTs found [Appellee] and his wife, Annemarie Fitzpatrick ["Victim"], down near the shore line of Muddy Creek. [Victim] was unresponsive, but EMTs were eventually able to get a pulse and she was transported to the hospital. A short time later, [Victim] was pronounced dead. Foul play was not suspected and the family began making arrangements; [Victim's] body was sent to the mortician for embalming.

Two days later, on June 8, 2012, the Pennsylvania State Police received a call from Rebekah Berry, who was employed by the same company as [Victim]. Employees at Collectibles Insurance had found a note in [Victim's] day planner that they felt was "suspicious." The note said, "If something happens to me—JOE." It was dated June 6, 2012, and signed "A. Fitzpatrick." Upon request, Ms. Berry was given access to [Victim's] work email where she found an email from [Victim] to ‘feltonfitz@gmail.com,’ which was [Victim's] personal [email] account. The subject line of the email stated, "if something happens to me," and the body of the email read ‘Joe and I are having marital problems. Last night we almost had an accident where a huge log fell on me. Joe was on the pile with the log and had me untying a tarp directly below." This email was sent June 6, 2012 at 10:30 A.M. Ms. Berry showed police the note and gave them access to [Victim's] email account.

After viewing the note and email, troopers contacted [Appellee] and asked if he would be willing to come in for an interview; [Appellee] agreed. [Appellee] was asked to again explain what occurred the night [Victim] died; he was never asked about the note or email.

On June 9, 2012, approximately two days after [Victim's] death and after the body had been embalmed, an autopsy was conducted. Dr. Barbara Bollinger, the forensic pathologist, determined that the cause of death was drowning. Although she was not asked to opine on the manner of death, she did state that she thought the circumstances were "suspicious."

From the point the handwritten note and email were found, the investigation turned from an accident investigation into a homicide investigation with the prime suspect being [Appellee]. Eventually, troopers discovered that [Appellee] was having a non-sexual affair with a woman named Jessica Georg, and was thinking of leaving his wife for her. When confronted, [Appellee] admitted to hiding [Victim's] phone from the police in an effort to hide this affair. Troopers also discovered that [Appellee] would gain approximately $1.7 million in life insurance if [Victim] were to die. After searching [Appellee's] work computer, troopers recovered two Google searches from around the time of [Victim's] death. The first search, done on June 1, 2012, searched for "life insurance review during contestability period." The second search, done on June 5, 2012, searched for "polygraph legal in which states." This all led to [Appellee's] arrest on March 6, 2014—approximately a year and a half after [Victim's] death.

[Appellee] was formally arraigned on May 19, 2014, and Christopher A. Ferro, Esquire, entered his appearance on May 22, 2014. The case was assigned to the Honorable Gregory M. Snyder, who scheduled a pre-trial conference for August 18, 2014. After two extensions, [Appellee] filed an omnibus pre-trial motion on August 7, 2014. In that motion he raised several issues, however, because he only raises the issue of the hearsay note and email in his post-sentence motion we will not discuss the other issues. Specifically, [Appellee] argued that the handwritten note and email were inadmissible hearsay and the Commonwealth should not be allowed to present either as evidence. The Commonwealth countered that the note and email were hearsay, but admissible under the state of mind exception. On October 20, 2014, Judge Snyder denied [Appellee's] request, and permitted the Commonwealth to present both the handwritten note and email.

The case was reassigned to the undersigned Judge due to Judge Snyder's reassignment into the Family Division.^[2] We listed the case for trial during the May term of trials.

[Appellee's] trial began on May 4, 2015. On May 13, 2015, [Appellee] was found guilty of First Degree Murder, and was sentenced to life imprisonment on the same day. On May 22, 2015, [Appellee] filed a timely post-sentence motion. We directed each side to submit briefs in support of their respective positions by the close of business July 1, 2015. [Appellee] filed his brief on June 30, 2015, and the Commonwealth filed its brief July 2, 2015.

After reviewing the briefs, we scheduled oral argument on the sole issue of whether the Commonwealth presented sufficient evidence to prove beyond a reasonable doubt that [Appellee] unlawfully killed his wife. That argument took place on August 6, 2015. We reserved decision on all three issues.^[3]

Trial Court Opinion, 9/1/15, at 1–4.

On September 1, 2015, the trial court issued an order denying in part and granting in part Appellee's post-sentence motion. Specifically, the trial court denied Appellee's request for a new trial, but granted Appellee's motion for judgment of acquittal based on the Commonwealth's failure to present sufficient evidence to sustain a first-degree murder conviction. Order, 9/1/15, at 1. Also on September 1, 2015, the Commonwealth filed an appeal. On September 29, 2015, Appellee filed a cross-appeal from the September 1, 2015 order. The Commonwealth, Appellee, and the trial court have complied with Pa.R.A.P. 1925. On October 19, 2015, this Court sua sponte consolidated the appeals for disposition.

The Commonwealth presents the following issue for our review:

I. DID THE TRIAL COURT ERR IN GRANTING [APPELLEE'S] POST–SENTENCE MOTION FOR ACQUITTAL AS THE EVIDENCE WAS SUFFICIENT TO SUSTAIN A FIRST DEGREE MURDER CONVICTION?

Commonwealth's Brief at 5.

In addition, Appellee presents the following issues in his cross-appeal:

I. WHETHER THE TRIAL COURT, AFTER DETERMINING THE COMMONWEALTH FAILED TO PRESENT SUFFICIENT EVIDENCE TO PROVE EACH ELEMENT OF FIRST DEGREE MURDER BEYOND A REASONABLE DOUBT, PROPERLY GRANTED A JUDGEMENT [sic] OF ACQUITTAL?

II. WHETHER [APPELLEE] WAS DENIED RIGHTS GRANTED TO HIM BY THE UNITED STATES CONSTITUTION AND PENNSYLVANIA CONSTITUTION WHEN INADMISSIBLE HEARSAY, IN THE FORM OF A NOTE AND EMAIL FROM [APPELLEE'S] DECEASED WIFE, WAS ADMITTED INTO EVIDENCE AND USED BY THE COMMONWEALTH TO SECURE A CONVICTION ON THE CHARGE OF MURDER?

Appellee/Cross–Appellant's Brief at 4.

In its sole issue on appeal, the Commonwealth argues that the trial court erred in granting Appellee's post-sentence motion for judgment of acquittal. Commonwealth's Brief at 30–81. In essence, the Commonwealth contends that it presented sufficient evidence at Appellee's trial to establish the necessary elements of first-degree murder beyond a reasonable doubt. We are constrained to agree.

Our standard of review is as follows:

A motion for judgment of acquittal challenges the sufficiency of the evidence to sustain a conviction on a particular charge, and is granted only in cases in which the Commonwealth has failed to carry its burden regarding that charge.

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Hutchinson , 947 A.2d 800, 805–806 (Pa. Super. 2008) (citations and quotation marks omitted).

Murder is defined, in relevant part, as follows:

§ 2502. Murder

(a) Murder of the first degree. —A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.

18 Pa.C.S. § 2502(a). The Pennsylvania Supreme Court has discussed the elements of first-degree murder as follows:

To convict a defendant of first degree murder, the Commonwealth must prove: [ (1) ] a human being was unlawfully killed; [ (2) ] the defendant was responsible for

...