Commonwealth v. Levanduski, 2005 PA Super 117 (PA 3/31/2005)

• Decision Date: 31 March 2005
• Docket Number: No. 937 EDA 2004.,937 EDA 2004.
• Citation: 2005 PA Super 117
• Parties: COMMONWEALTH OF PENNSYLVANIA, Appellee v. TERI LYNN LEVANDUSKI, Appellant.
• Court: Pennsylvania Supreme Court

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2005 PA Super 117

COMMONWEALTH OF PENNSYLVANIA, Appellee v. TERI LYNN LEVANDUSKI, Appellant.

No. 937 EDA 2004.

Superior Court of Pennsylvania.

Filed: March 31, 2005.

Appeal from the Judgment of Sentence entered March 25, 2004, in the Court of Common Pleas, Monroe County, No. 1519 Criminal 2002.

Before: STEVENS, KLEIN, JJ., and McEWEN, P.J.E.

OPINION BY McEWEN, P.J.E.:

¶ 1 Appellant, Teri Lynn Levanduski, brings this appeal from the judgment of sentence to serve a term of life imprisonment following her conviction by a jury of the charges of murder in the first degree, conspiracy, hindering apprehension, and solicitation. We are constrained to vacate the judgment of sentence and remand the case for a new trial.

¶ 2 The charges against appellant resulted from the homicide on November 27, 2002, of her common-law husband, Robert Sandt, who died as a result of seven .22 caliber gun shot wounds, including five to his head. The body of Mr. Sandt was found by Beverly Levanduski, the mother of appellant, who was also their next door neighbor. At the time of the gruesome discovery appellant was at her place of employment, where Beverly Levanduski called her to tell her of Mr. Sandt's death.

¶ 3 Appellant thereafter left work to return home. When she arrived at her house the police were present and were conducting an on-site investigation. The police would not allow appellant into her home but told her to wait in the next door home of her parents. The police obtained search warrants and during the search found, inter alia, a ripped-up five page handwritten note in the kitchen trash can. Subsequent investigation revealed that the note had been written by the victim, though the police could not determine the exact time it was written, and the substance of the note was that the victim was suspicious that appellant and her paramour, Leonard Fransen, were conspiring to murder him.

¶ 4 While still on-site, the police questioned appellant briefly, and then asked her to appear at the police station the next day for further questioning. On the following day, November 28, 2002, appellant went to the police station in the company of her parents. The interview of appellant was conducted in a separate room outside the presence of her parents. Police detectives spoke with appellant for more than two hours (1:50 p.m. to 4:20 p.m.) before they gave her Miranda warnings. She thereafter continued to speak with the police and provided a written statement that implicated her in the murder of Mr. Sandt. As summarized by the trial judge:

[She] orally waived her right to an attorney and agreed to speak with the detectives. The detectives Mirandized defendant at that time due to inconsistencies in her statements. At first, defendant denied having an affair with Leonard Fransen (co-defendant). She later admitted to such an affair, and to driving Leonard Fransen to the end of her driveway shortly before the victim was murdered. Defendant further stated that following Fransen's departure from the house, she drove him away from the scene and dropped him off on the side of a road. Subsequent to defendant being read the Miranda warning, she amended her statement to include that she heard a scuffle inside the house, then heard a gunshot, then saw Leonard Fransen exit the house.

At approximately 5:12 p.m., defendant completed a written statement of her version of the events of November 27, 2002. The detectives reviewed the statement and found that some of the information they had elicited during the oral interview was missing. Defendant agreed to a taped interview, which was concluded at 6:13 p.m.

Slip Opinion on Omnibus Pre-Trial Motion, June 16, 2003, Vican, P.J., pp. 3-4. Based upon her statements and other evidence developed during the investigation, appellant and Leonard Fransen were arrested and charged with the murder of Robert Sandt.

¶ 5 Prior to trial, appellant filed (1) a motion to suppress her statements to the police, and (2) a motion in limine to preclude the admission into evidence of the letter that was discovered in the trash can during the initial police investigation. The motion to suppress was denied. The motion in limine was granted in part and denied in part, since the judge ruled that the content of the letter could not be admitted to prove the truth of the matter asserted therein, but could be admitted as evidence of motive and to show the relationship of the co-defendants. A jury trial ensued,¹ in which counsel for appellant argued² that the death of Mr. Sandt was the unfortunate result of an argument between him and her paramour. At the conclusion of the trial appellant was found guilty of, inter alia, murder in the first degree, and sentenced to serve a term of life imprisonment. This appeal followed.

¶ 6 Appellant, in the brief she has filed with this Court, presents the following questions to be resolved on appeal:³

Whether the trial court committed reversible error by allowing the Commonwealth to introduce into evidence a letter written by the decedent?

Whether the trial court erred in refusing to suppress statements, and the fruits thereof, that were obtained by the police from appellant while she was in custody?

Whether the trial court committed reversible error by allowing the Commonwealth to introduce into evidence certain photographs of appellant and of the co-defendant?

¶ 7 Appellant first claims that the trial court erred in its ruling on her motion in limine. Appellant in that motion sought to preclude the admission into evidence of the victim's letter, which was retrieved from the kitchen trash can, and in which he describes his suspicions regarding appellant's intentions toward him. The law and standards governing our review of this issue provide:

"A motion in limine is a procedure for obtaining a ruling on the admissibility of evidence prior to or during trial, but before the evidence has been offered." Commonwealth v. Johnson, 582 A.2d 336, 337 (Pa.Super. 1990), aff'd, 534 Pa. 51, 626 A.2d 514 (1993). Such a ruling is similar to that upon a motion to suppress evidence. Commonwealth v. Gordon, 543 Pa. 513, 517, 673 A.2d 866, 868 (1996). ... [W]e apply an evidentiary abuse of discretion standard to the denial of a motion in limine. Commonwealth v. Chmiel, 558 Pa. 478, 493, 738 A.2d 406, 414 (1999) [cert. denied, 528 U.S. 1131, 120 S.Ct. 970, 145 L.Ed.2d 841 (2000)].

Questions concerning the admissibility of evidence lie within the sound discretion of the trial court, and we will not reverse the court's decision on such a question absent a clear abuse of discretion. Commonwealth v. Weber, 549 Pa. 430, 436, 701 A.2d 531, 534 (1997).

Commonwealth v. Zugay, 745 A.2d 639, 644-645 (Pa.Super. 2000), appeal denied, 568 Pa. 662, 795 A.2d 976 (2000). An abuse of discretion has been defined as

the overriding or misapplication of law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence or the record.

Commonwealth v. Viera, 659 A.2d 1024, 1028 (Pa.Super. 1995), appeal denied, 543 Pa. 713, 672 A.2d 307 (1996), citing Commonwealth v. Kubiac, 550 A.2d 219, 223 (Pa.Super. 1988), appeal denied, 522 Pa. 611, 562 A.2d 496 (1989).

¶ 8 The letter in question was lengthy, consisting of five handwritten pages, and described how the victim had discovered that appellant was having a sexual relationship with the co-defendant, and further stated:

I am writing this letter to tell someone that in [a] letter she said that some how [sic] they had to get rid of me so they could be together.

* * * *

So Saturday I went to get my 22 pistol and it was gone.... So I am thinking that maybe she [appellant] gave him [co-defendant] the gun to kill me with. That way no one would think some one killed me, that I committed suicide. Seeing it was my gun.

So that['s] why I am writing this letter in case I should end up shot by a 22 pistol. So nobody would think it was nothing but a suicide. ...

Commonwealth Exhibit Nos. 28 A-B. In deciding that this letter could be admitted for a limited purpose the trial judge ruled in relevant part:

Defendant's [appellant's] Motion In Limine to exclude the letter from the victim is GRANTED to the extent that it may not be used as evidence of defendant's guilt; however, the letter may be used as evidence for other purposes.

Order of June 16, 2003, Vican, P.J. The trial judge, in support of his ruling, offered the following rationale:

The letter written by the victim, which implicated defendants Levanduski and Fransen, meets this definition [of hearsay]. It was not made by the victim through testimony at a trial or hearing and it is being offered to prove that defendant Levanduski conspired to kill him. Because the letter does not fall within any exception to the hearsay rule, it is inadmissible at trial prove defendant Levanduski's involvement in the murder of the victim.

However, "when an extrajudicial statement is offered for a purpose other than proving the truth of its contents, it is not hearsay and is not excludable under the hearsay rule." Commonwealth v. Puksar, 740 A.2d 219, 225 (Pa. 1999), citing Commonwealth v. Griffin, 515 A.2d 865, 870 (Pa. 1986). Extrajudicial statements are "admissible to establish ill-will or motive where they are not being offered for the truth of the matter contained therein." Id., citing Commonwealth v. Brown, 648 A.2d 1177, 1182 (Pa. 1994). Therefore, we conclude that the letter written by the victim is admissible as evidence of a prior relationship between defendants Levanduski and Fransen. Furthermore, this letter is admissible as evidence of Defendant Levanduski's motive to cause harm to the victim based on her relationship with another man and her allegations of the victim's abusive conduct towards her.

Slip Opinion, June 16, 2003, Vican, P.J., pp. 17-18.

¶ 9 We are unable, however, to accept this rationale, since the conclusion is inescapable that...