Commonwealth v. Fitzpatrick

• Decision Date: 23 July 2021
• Docket Number: No. 6 MAP 2020,6 MAP 2020
• Citation: 255 A.3d 452
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Joseph Bernard FITZPATRICK, III, Appellant
• Court: Pennsylvania Supreme Court

255 A.3d 452

COMMONWEALTH of Pennsylvania, Appellee

v.Joseph Bernard FITZPATRICK, III, Appellant

No. 6 MAP 2020

Supreme Court of Pennsylvania.

Argued: September 15, 2020

Decided: July 23, 2021

Jules Epstein, Philadelphia, Christopher A. Ferro, Esqs., for Appellant.

Stephanie Elizabeth Lombardo, David Winslow Sunday, James Edward Zamkotowicz, Esqs., York County District Attorney's Office, for Appellee.

BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE WECHT

Because hearsay is presumptively unreliable and unworthy of belief, it generally is barred from admission in courts of law.¹ But not every extra-judicial statement that later is repeated inside of a courtroom constitutes inadmissible hearsay. In light of the varied exceptions to the rule against hearsay that have developed in the law of evidence, a trial court's task is often far from simple. Things can get complicated pretty quickly.

To constitute hearsay, a statement first must be uttered out-of-court, and then it must be offered in court for the truth of the matter asserted in the statement. For example, consider a witness at a murder scene who tells a police officer that "the killer had green eyes." If the prosecution offered that statement at a subsequent murder trial to prove that the murderer's eyes, in fact, were green, it would be hearsay.² However, if the statement is intended to be used for some purpose other than establishing its truth—i.e. , to show the effect that the statement had on the listener (say, for instance, the utterance caused the police officer to create a photo array using only people with green eyes)—then it would not be hearsay and, consequently, would be admissible for that non-truth purpose, subject to any other applicable evidentiary rules. At times, the line that divides hearsay from non-hearsay can be difficult to discern.

The task of identifying a statement as hearsay by scrutinizing the purpose for which it is being offered is only the first step. Facially inadmissible hearsay still may be introduced as substantive evidence for the truth of the matter asserted if the statement falls under one of numerous exceptions to the general hearsay proscription. These exceptions arise from various circumstances that "enhance the reliability of the contents of the utterance," ³ and range from business records and ancient texts to statements against interest and dying declarations. See generally Pa.R.E. 803, 804. The applicability of some of the exceptions depends upon the availability (or unavailability) of the speaker, id. 803, 804, while others depend upon whether the declarant is subject to cross-examination. See id. 803.1. When a party invokes one of these exceptions, a court must ascertain whether the proffered statement meets the exacting demands of the exception. This is not always an easy chore.

The case before us today is a good example of the difficulties posed by hearsay and its exceptions. Here, we consider the applicability of the "then-existing mental, emotional, or physical condition" exception,⁴ which has come to be known as the "state of mind" exception. The victim in this murder case, Annemarie Fitzpatrick (hereinafter "Annemarie") wrote a note in her day planner on the day before she died. The note read: "If something happens to me—JOE," an apparent reference to her husband, Joseph Fitzpatrick, III (hereinafter "Fitzpatrick"). Both the trial court and the Superior Court held that Annemarie's statement was admissible as an expression of her then-existing state of mind under Rule 803(3). We conclude that the statement was admitted in error, and that the error was not harmless. Hence, we reverse, and we remand for a new trial.

On June 6, 2012, Fitzpatrick and Annemarie were riding on an all-terrain vehicle ("ATV") through a deep part of Muddy Creek, a tributary of the Susquehanna River that runs near their home in Chanceford Township, York County, Pennsylvania. According to Fitzpatrick, at some point during their trek, the vehicle flipped backwards and tossed both riders into the creek. Although Fitzpatrick managed to climb out of the water relatively unscathed, in his version of events, Annemarie could not. Fitzpatrick claimed that he called 911 after he initially was unable to locate Annemarie in the water. While on the line with a dispatcher, Fitzpatrick allegedly saw Annemarie's body floating nearby on the side of the creek opposite from where he was standing.

Pennsylvania State Police ("PSP") troopers and emergency medical technicians ("EMT") responded to the scene. Fitzpatrick—who presented no obvious signs of injury and refused medical treatment—told a PSP trooper that, when he located Annemarie, he dove into the creek, removed her body from the water, and began to perform CPR. The EMTs took over the resuscitation efforts. Once the EMTs were able to restart Annemarie's pulse, they immediately transported her to the local hospital. A short time later, Annemarie died. The York County Coroner's Office determined that the cause of Annemarie's death was drowning. Upon further determining that an autopsy was not necessary at that time, the Coroner's Office released Annemarie's body to a mortician, who embalmed her remains.

At first, the PSP investigators uncovered no evidence of foul play. By all initial accounts, it appeared to the authorities that Annemarie had died in an ATV accident on June 6. Two days later, things changed dramatically. On June 8, 2012, the PSP received a telephone call from Rebekah Berry, one of Annemarie's co-workers at Collectibles Insurance Services, a business that is located across the state line in Hunt Valley, Maryland. This call transformed the case into a murder investigation, with Fitzgerald being the lead suspect.

Berry told PSP investigators that her co-workers had found a day planner on Annemarie's desk. Annemarie had left a note in the day planner that read, "06/05/12. If something happens to me—JOE." Annemarie had personally signed the note. After reviewing the note, PSP personnel obtained access to Annemarie's password-protected work email account. The troopers discovered that, at 10:30 a.m. on June 6, 2012, the day she died, Annemarie sent an email from her work email account to her personal email account, "feltonfitz@gmail.com." In the subject line of the email, Annemarie wrote, "if something happens to me." In the body of the message, Annemarie stated, "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."

That same day, PSP investigators interviewed Fitzpatrick at a PSP barracks. Fitzpatrick related that he and Annemarie went to Muddy Creek to have a waterside picnic in celebration of their wedding anniversary. During dinner, Fitzpatrick drank three beers. Annemarie had a glass of wine. After they ate, Fitzpatrick and Annemarie wanted to start a campfire, but they had left the propane torch needed to ignite the fire back at their house. They climbed onto the ATV, with Annemarie in the driver's position and Fitzpatrick the passenger. Annemarie, who, according to Fitzpatrick, was inexperienced in driving ATVs, started toward the house to get the torch, with Fitzpatrick behind her.

Fitzpatrick told the PSP that, due to his wife's limited ability operating ATVs, he had to reach around Annemarie to assist her with the controls. He explained that he reached around her left side to shift gears and around her right side to throttle the vehicle. Fitzpatrick claimed that, when he twisted the throttle, the ATV shot forward and flipped them both backwards into the water.

As the interview progressed, however, Fitzpatrick's version of the events began to change. For instance, he retracted his statement that he had shifted the gears and twisted the throttle. He proceeded now to state that he believed that it had to be Annemarie who did so, because he no longer could remember reaching around and assisting her. He claimed that his memory of the accident was limited, and that he could only recall driving into the creek in a diagonal direction.

Regarding the accident, Fitzpatrick explained that the front of the ATV rose slowly—more like a tilt than a rapid ascent, as one might see when a driver performs a wheelie—before it flipped over backwards. He then told the troopers that, when he emerged from the water, the rear tire of the ATV was near his head. The vehicle was almost entirely submerged. He tried to move the ATV, but could not do so because so much of it was under water. Fitzpatrick looked around but could not see any sign of Annemarie. After several minutes of searching for her, he placed the 911 call. He told the police that it was during the call that he spotted Annemarie's body floating near the opposite shore.

Fitzpatrick walked away from the incident relatively unscathed. He informed the troopers only that he felt some soreness in his legs. Otherwise, the accident that had caused Annemarie to drown had left him almost entirely uninjured.

Notably, Fitzpatrick told the PSP investigators that he and Annemarie were not experiencing any marital problems on or before June 6, 2012.

Meanwhile, on June 8, 2012, PSP troopers executed a search warrant on Fitzpatrick's residence. While on the property, the investigative team observed a large woodpile in a field behind the house. The stack of wood was partially covered by a blue tarp. On one side of the pile, there was clear evidence that a log had fallen off the pile. The investigators located an impression in the mud that they believed likely was caused by a fallen log, which also was surrounded by loose bark. These findings corroborated Annemarie's June 6 email message.

During the initial investigation on the night of Annemarie's death, a trooper had observed Annemarie's cell phone on a picnic table near the creek where she drowned. During the execution of the search warrant on June 8, 2012, PSP...