Commonwealth v. Ross

• Citation: 2012 PA Super 220,57 A.3d 85
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Paul Aaron ROSS, Appellant.
• Decision Date: 10 October 2012
• Court: Pennsylvania Superior Court

57 A.3d 85
2012 PA Super 220

COMMONWEALTH of Pennsylvania, Appellee
v.
Paul Aaron ROSS, Appellant.

Superior Court of Pennsylvania.

Argued April 17, 2012.
Filed Oct. 10, 2012.

[57 A.3d 87]

Thomas M. Dickey, Altoona, for appellant.

Richard A. Consiglio, Assistant District Attorney and Deanne E. Paul, Assistant District Attorney, Hollidaysburg, for Commonwealth, appellee.

BEFORE: STEVENS, P.J., BENDER, PANELLA, DONOHUE, ALLEN, MUNDY, OLSON, OTT and WECHT, JJ.

OPINION BY DONOHUE, J.:

Appellant, Paul Aaron Ross (“Ross”), appeals from the judgment of sentence dated November 23, 2005 following his convictions for first-degree murder, aggravated assault, involuntary deviate sexual intercourse, unlawful restraint, simple assault, false imprisonment, and indecent assault.¹ For the reasons set forth herein, we conclude that the trial court manifestly abused its discretion in refusing to grant Ross a continuance to permit his newly retained private counsel the opportunity to prepare for trial. In light of our remand for a new trial, we also decide that the trial court abused its discretion in allowing the Commonwealth to introduce the testimony of three of Ross' former romantic partners regarding instances of domestic abuse as “prior bad acts” evidence under Rule 404(b) of the Pennsylvania Rules of Evidence. Accordingly, we vacate the judgment of sentence and remand the case for a new trial.

The relevant factual and procedural background of this case is as follows. At approximately 12:20 p.m. on June 27, 2004, a fisherman on Canoe Creek Lake in Canoe Creek State Park discovered the partially-clothed body of Tina Miller (“Miller”) near the lake's second boat launch. Notes of Testimony (“N.T.”), 10/28/05, at 105–08. The Blair County Coroner, who arrived on the scene sometime after 2:15 p.m. that afternoon, described the body as being face down, partially immersed in the water with just a shirt, a dark sweater, and knee-high boots on, with her hands duct-taped behind her back (and additional duct tape around her head, mouth, and arms). Id. at 33. The Coroner estimated the time of death to be 5:00 that morning.

Dr. Saralee Funke (“Dr. Funke”), the forensic pathologist who performed the autopsy

[57 A.3d 88]

the next day, concluded that Miller died of a combination of drowning and strangulation. N.T., 10/31/05, at 432. Injuries to the body included various abrasions to the legs, buttocks, arms, and face, id. at 378–88, 400; an abrasion on the right cheek consistent with a blow to the face (but without sufficient force to fracture the skull), id. at 394–95, 424; and pattern marks on the left breast consistent with a bite, id. at 388–91. Importantly, Miller's anus and vagina were “massively traumatized.” Id. at 403. Dr. Funke described numerous lacerations to this area of the body, including one “so deep that it went through the sphincter muscle. Tore the sphincter apart and ended up in the vagina.” Id. at 404. Dr. Funke opined that these particular injuries were likely inflicted through the use of “a significant amount of force” with a foreign object. Id. at 404–05.

On the evening of June 26, 2004, Ross and three others (James Fees (“Fees”), Justin Hartman, and Alex Marini) were drinking at a local bar (the Pipe Room). N.T., 10/29/05, at 51–53. There they met Miller. Id. at 55. Around 1:30 a.m., the group made their way to Fees' residence, where they continued to drink and play pool. Id. at 63–67. Fees later observed Ross and Miller engage in consensual kissing. Id. at 78, 154–55. At around 4:30 a.m., Fees offered to drive Ross and Miller home, and he dropped them off together at the second boat launch on Canoe Creek Lake, which was within walking distance of Ross' home. Id. at 95. When later questioned by the state police, Ross informed the trooper that he had been at the boat launch with Miller, but that she had made a phone call and soon thereafter a man with a thin beard showed up in a white truck and picked her up. N.T., 11/2/05, at 293–95.

The state police arrested Ross and charged him with the above-referenced crimes. The Commonwealth subsequently filed a Notice of Aggravating Circumstances advising that it would seek the death penalty. The trial court appointed Assistant Public Defender Theodore J. Krol of the Blair County Public Defenders Office to represent Ross. On July 19, 2005, Ross filed a pro se motion alleging Attorney Krol's ineffectiveness, including specific allegations that there had been no one-on-one discussions between lawyer and client, that Attorney Krol was too “overburdened with other cases,” and that he had exhibited a lack of preparation in arguing important motions (including with respect to the Commonwealth's requests to present prior bad acts testimony by his former romantic partners). Motion for Ineffective Counsel, 7/19/05, at 1. After an evidentiary hearing, on August 20, 2005 the trial court dismissed Ross' motion. Order, 8/20/05, at 1. Still dissatisfied with the performance (or lack thereof) of appointed counsel, Ross retained the services of a private attorney, Thomas M. Dickey (“Attorney Dickey”), who filed his Praecipe for Appearance on October 6, 2005, two weeks prior to the commencement of jury selection on October 21.

On October 17 and October 21, 2005, Attorney Dickey filed two supplemental omnibus pre-trial motions, each requesting a continuance to allow for time to prepare a defense at trial. Supplemental Omnibus Pre–Trial Motions, 10/17/05, 10/21/05. In these motions, Attorney Dickey described in detail his inability to prepare for trial in the time allotted. In particular, through police and expert reports as well as available witness lists, the Commonwealth had made clear that it intended to present a substantial volume of forensic and factual evidence against Ross, including the following:

[57 A.3d 89]

• Establish the time of death as close to when Fees dropped Ross and Miller off at the boat launch (between 4:30 a.m. and 5:00 a.m.);

• Offer forensic pathological testimony identifying a beer bottle found at the crime scene as the likely weapon used to mutilate Miller;

• Provide testimony to prove that the beer bottle in question had been purchased by Ross earlier that evening at the Pipe Room;

• Analysis of blood serology, hair samples, and soil samples, all collected from the crime scene;

• Match casts of shoe prints near the crime scene with a particular brand of shoe known to be regularly worn by Ross;

• Match casts of boot prints at the crime scene with boots worn by Miller on the night of the crime;

• Offer expert testimony to explain why no fingerprints or DNA samples were collected at the crime scene ( e.g., the location of the body in water, sun and other environmental factors);

• Call a forensic odontologist to match the bite marks on Miller's breast to dental impressions of Ross' teeth, and in so doing exclude other possible perpetrators;

• Offer medical testimony that the scratches and other wounds observed on Ross' legs were the result of a struggle with Miller, rather than from biking as Ross' had claimed;

• Provide a “bruise progression” analysis through a series of photographs;

• Present witnesses to dispute Ross' claim that Miller called a boyfriend who picked her up at the boat launch, including through testimony that she did not have a cell phone that night and did not have a boyfriend at that time;

• Present testimony from a former cellmate claiming that Ross confessed to him;

• Offer prior bad acts testimony from three of Ross' former romantic partners, to the effect that he committed violence towards them during their relationships.

In significant contrast to the Commonwealth's preparedness, as of the first day of jury selection on October 21, 2005, the defense had retained just two witnesses who would testify at trial—Dr. Lowell Levine, a forensic odontologist to testify regarding the bite marks, and Dr. Eric Vey, a forensic pathologist, to testify primarily regarding time of death and weapon identification.² At this time, Drs. Levine and Vey were in the process of collecting and reviewing evidence received from the Commonwealth and Attorney Dickey, but neither had completed their work, prepared reports, or conveyed any findings or opinions to Attorney Dickey. Supplemental Omnibus Pre–Trial Motion, 10/21/05, at ¶ 18. Moreover, and more importantly, the defense had not retained any expert to review or analyze the bulk of the evidence collected at the crime scene or at Ross' residence—including blood serology, hair samples, soil samples, or the shoe and boot castings. Likewise, the defense had no expert to review the evidence collection methods utilized by police officers or to analyze critically the Commonwealth's contention that environmental conditions at the crime scene prevented the collection of

[57 A.3d 90]

fingerprint or DNA evidence. Finally, no expert for the defense had either reviewed the more than 225 photographs taken at the crime scene or studied the video tapes documenting the collection of evidence.

The trial court denied both of Attorney Dickey's motions for continuance, but on October 24, just four days prior to the start of trial, the trial court did authorize Attorney Dickey to retain a criminologist, Larry Dehus, to review the Commonwealth's evidence. Order, 10/24/05, at 6. It authorized a budget of up to $7,000 to pay Dehus for his services, “provided his report is provided no later than October 31, 2005.” Id. The trial court also ordered the State Police to turn over its evidence to Dehus for review. Id.

On October 28, however, the first scheduled day of trial, Attorney Dickey filed a third motion for continuance. Attorney Dickey indicated that Dehus had received some, but not all, of the Commonwealth's evidence, and had not completed his review or analysis. Supplemental Omnibus Pre–Trial Motion, 10/28/05, at ¶¶ 2–3. Attorney Dickey further advised the trial court that his other two experts, Drs. Devine and Vey, had likewise not...