Commonwealth v. Kunkle

• Decision Date: 06 November 2013
• Citation: 2013 PA Super 287,79 A.3d 1173
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Cheryl Ann KUNKLE, Appellant.
• Court: Pennsylvania Superior Court

79 A.3d 1173

2013 PA Super 287

COMMONWEALTH of Pennsylvania, Appellee

v.Cheryl Ann KUNKLE, Appellant.

Superior Court of Pennsylvania.

Submitted July 29, 2013.

Filed Nov. 6, 2013.

Thomas A. Jones, Mt. Pocono, for appellant.

Mark S. Matthews, Assistant District Attorney, Stroudsburg, for Commonwealth, appellee.

BEFORE: ALLEN, COLVILLE ^*, and STRASSBURGER ^*, JJ.

OPINION BY ALLEN, J.:

Cheryl Ann Kunkle (“Appellant”) appeals from the judgment of sentence imposed after a jury convicted her of criminal homicide, criminal solicitation to commit criminal homicide, aggravated assault, burglary, and tampering with or fabricating physical evidence.¹ We affirm.

The trial court summarized the evidence adduced at trial as follows:

On Friday, November 16, 2001, Pennsylvania State Troopers from the Fern Ridge Station responded to the home of Benjamin Amato (“Victim”), located at 69 Sundance Drive, Chestnuthill Township, Monroe County, Pennsylvania for a welfare check. [N/T: Volume I, 2/6/07, p. 64] At the residence, the Troopers found the body of [the victim], who had been deceased for approximately four days, at the base of a stairway. [N/T: Volume II, 2/7/07, p. 131] The investigation revealed that [the victim] had been killed sometime between 1915 hours (7:15 p.m.) on Monday, November 12, 2001 and Friday, November 16, 2001, and that the Victim died as a result of blunt force trauma to his head. [N/T: Volume II, 2/7/07, p. 165.] Dr. Samuel D. Land, a board certified anatomic and clinical forensic pathologist, testified that in his opinion, to a reasonable degree of medical certainty, Victim died as a result of three to four blows to his head. [N/T: Volume II, 2/7/07, p. 175.] The manner of death was ruled homicide by the coroner. [N/T: Volume II, 2/7/07, p. 165.]

At trial, the Commonwealth introduced strong circumstantial evidence tying [Appellant] to the victim's homicide. Evidence was presented through extensivetestimony as well as numerous exhibits including photographs of the crime scene, cassette tape recordings, phone records, a letter from [Appellant] to Victim, etcetera. The investigation revealed that: (1) there was no sign of forced entry into Victim's home and entry was made through an unlocked garage door [N/T: Volume I, 2/6/07, pp. 93–96]; [N/T: Volume II, 2/7/07, p. 130]; (2) Victim was attacked in the basement stairwell by someone lying in wait at the top of the steps [N/T: Volume IV, 2/9/07, p. 619]; (3) he was apparently sprayed with a chemical irritant which was identified as “pepper spray” [N/T: Volume I, 2/6/07, pp. 231–232], [Volume VI, 2/13/07, p. 960]; and (4) he was struck numerous times with a blunt force object. [N/T: Volume II, 2/7/07, p. 175.] Blood splatter was found about four to five feet from the Victim coming away from him, as well as approximately eight to ten feet from him back towards the base of the stairs where he was found, and on the radiator and the paneling right above the Victim's head. Id. at 133–135. There were also linear bloodstains found on the wood flooring at the top of the steps, which showed movement through the pool of blood. Id. at 141. It was in this pool that a boot track was discovered. Id. at 142. Corporal Joseph Racho testified that this meant the person wearing the boot had to have stepped in blood prior to the print being deposited there. Id. at 143.

Corporal Wilson used photographs of the crime scene to show the jury various impact marks found during investigation procedures along the walls of Victim's residence. [N/T: Volume II, 2/7/02, p. 238.] The marks started from the first floor in the area of Victim's bathroom door and came down the steps to the basement where Victim's body was found. Id. There were forty-two impact marks discovered, twenty-two of which had blood either in them or around them. Id.

During the Commonwealth's case in chief; John Weader, a forensic scientist, was called to the stand and testified that he found an active ingredient used in various self-defense sprays, such as mace or pepper spray, on the towel, heater cover, linoleum, and wood paneling samples from the crime scene that he analyzed. [N/T: Volume VI, 2/13/07, p. 960.] Gina Musante, a DNA Analyst for the Pennsylvania State Police, testified that, in a sample from the top of a speaker located on the floor of Victim's residence, she found more than one source of DNA. [N/T: Volume IV, 2/9/07, pp. 652–653.] Similarly, the sample recovered from the storm door of Victim's residence revealed one source of DNA that did not match Victim. Id. at 658.

Gregory Rowe, [Appellant's] son, testified that [Appellant] told him that she killed [the victim]. [N/T: Volume III, 2/8/07, p. 364.] He testified that [Appellant] told him she sprayed Victim with some type of mace, knocked him down the stairs, and beat him with a baseball bat until he was dead. Id. at 365. Rowe stated that [Appellant] had him purchase a can of mace for her two to three weeks before Victim's death. Id. at 373–374.

William Terlesky, [Appellant's] father's work partner, testified that while [Appellant] was sitting in his car one morning she told him that she killed [the victim] and that she had confessed to her boyfriend, Officer Marty Reynolds, as well, but she was afraid Reynolds was going to turn her in. [N/T: Volume V, 2/12/07, pp. 792, 794.] The following day, [Appellant] asked Terlesky to retrieve a pair of shoes, a bat, and gloves that she had thrown out on Camp Akiba Road and help her burn them. Id. at 797. Terlesky further testified that [Appellant] told him she waited at Victim's house for Victim to come home, hit him in the head at the top of a set of stairs, and then fled out of a side door onto a deck. Id. at 801–802. She also remarked that “he went down like a pussy.” Id. Terlesky stated that when he asked [Appellant] why she was limping, she responded by telling him she hurt it when she jumped off Victim's deck and hit a boat as she was leaving Victim's residence. Id.

Marty Reynolds, a former police officer for the Pocono Mountain Regional Police, and boyfriend to [Appellant], testified that [Appellant] confessed to him about killing Victim. [N/T: Volume IV, 2/9/07, p. 717.] When Mr. Reynolds was at [Appellant's] home, [Appellant] pulled down her jeans revealing bruises on the left portion of her thigh and stated that “I was there,” and “we fought all the way down the steps.” Id. at 715, 717.

Magisterial District Judge Debbie York was called to testify regarding [Appellant's] behavior in her courtroom. When Victim was found not guilty of harassment on July 24, 2001, [Appellant] stood up and said: “What do I have to do fucking kill him to get him to leave me alone?” [N/T: Volume III, 2/8/07, p. 488.]

Trial Court Opinion, 9/24/07, at 3–6.

Additionally, the trial court explained:

During the Commonwealth's case in chief, evidence was introduced through testimony that [Appellant] attempted to hire April Steinhauser and Nathaniel Evans to kill Victim. [N/T: Volume V. 2/12/07, pp. 747–749, 906.] April testified that [Appellant] said she wished she knew somebody who would “knock him [Victim] off” or kill him to which April responded that she knew someone who would do so. [N/T: Volume IV, 2/9/07, P. 674.] April stated that she and [Appellant] went to [the victim's] house to plan how the murder was going to occur. Id. at 675. Two scenarios were discussed: (1) at first, “he [Nathaniel] was going to go into the garage while [the victim] was sleeping and go up the steps and into [Victim's] bedroom and then ... make it look like a robbery; (2) but then [Appellant] decided she would rather have Nathaniel follow Victim up the driveway ... and shoot Victim from behind some trees when he stepped out of his truck.” Id. April testified further that [Appellant] was going to pay $5,000 (half up front and half when it is done) to her and Nathaniel to “knock off” Victim, but it later dropped down to $3,000 because [Appellant] realized she could not afford to pay $5,000. Id. April stated that [Appellant] gave her $1,500 along with a picture of Victim to give to Nathaniel. Id. at 677.

Id. at 8–9.

The trial court recited the procedural history of this case as follows:

[Following Appellant's arrest on November 3, 2005], [o]n April 16, 2006, [Appellant] filed an Omnibus Motion. On July 24, 2006, [Appellant] filed a Brief in Support.

On November 8, 2006, the [trial court] entered an Opinion and Order on [Appellant's] Omnibus Motion which granted in part and denied in part.

On January 10, 2007, [Appellant] filed a Motion in Limine.

On January 18, 2007, [the trial court] entered an Opinion and Order denying [Appellant's] Motion in Limine.

On July 7, 2007, [following her February 15, 2007 jury trial conviction], [Appellant] filed a Post–Sentence Motion. On August 6, 2007, [Appellant] filed a Brief in Support.

On September 24, 2007, [the trial court] entered an Opinion and Order denying [Appellant's] Post–Sentence Motion.

On January 14, 2013, [after the affirmance of Appellant's judgment of sentence on her first direct appeal], [the trial court] granted [Appellant's] PCRA Petition insofar as she sought reinstatement of her direct appellate rights [regarding issues abandoned by prior appellate counsel].

On January 29, 2013, [Appellant] filed a Notice of Appeal. On February 4, 2013, we ordered [Appellant] to file a Concise Statement.

Trial Court Opinion, 3/1/13, 1–2 (footnotes omitted). The trial court and Appellant complied with Pa.R.A.P. 1925.

Appellant presents the following issues for our review:

1. Should statements made while in custody without a knowing waiver of one's right to remain silent in response to police questioning be allowed at trial?

2. Should statements made by a decedent be admitted at trial without fitting into one of the recognized exceptions to hearsay?

3. Should a solicitation to commit homicide be severed from a criminal homicide charge when the two matters concern disparate actions in time and place?

4....