Commonwealth v. Treiber

• Decision Date: 16 May 2005
• Citation: 582 Pa. 646,874 A.2d 26
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Stephen E. TREIBER, Appellant.
• Court: Pennsylvania Supreme Court

874 A.2d 26

582 Pa. 646

COMMONWEALTH of Pennsylvania, Appellee, v. Stephen E. TREIBER, Appellant.

Supreme Court of Pennsylvania.

Argued September 20, 2004.

Decided May 16, 2005.

Timothy John Lucas, Esq., Erie, for Stephen E. Treiber.

Christopher D. Carusone, Esq., Amy Zapp, Esq., Anthony John Krastek, Esq., Philadelphia, for Commonwealth of Pennsylvania.

BEFORE: CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.

OPINION

Justice EAKIN.

Stephen E. Treiber has filed a direct appeal from the judgment of sentence of death following his convictions for first degree murder, 18 Pa.C.S. § 2502(a), arson endangering persons, id., § 3301(a), arson endangering property, id., § 3301(c), and recklessly endangering another person, id., § 2705. The convictions stem from a house fire in which appellant's daughter was burned to death. We affirm.

On the night of March 9, 2001, after smelling and seeing smoke coming from appellant's house, a neighbor, Kathleen Roemer, went to assist. At the time, appellant, his girlfriend Denise Riddle, and his two-year-old daughter Jessica, were present. Ms. Roemer noticed appellant and Ms. Riddle on a second story deck; Ms. Riddle screamed for help while appellant calmly stood by with his arms folded. Appellant asked about his dogs and later, when referring to Jessica, said, "The firemen will get her. She's probably dead anyway." N.T., 9/30/02, at 97. Jessica died as a result of the fire.

The Commonwealth introduced testimony from members of the fire and police departments that Jessica's bedroom door was open, and appellant was unusually calm, inquiring only about his dogs; appellant stated "[i]t's probably too late anyway," id., at 242, for Jessica. Further testimony established the fire had been started using gasoline, clothing, straw, and candles, and the security system on the house had been disabled.

Evidence of appellant's motive and intent was introduced at trial. Appellant's unwillingness to pay child support was established by testimony from Jodie Treiber, Jessica's mother. Testimony also came from Jamie Pianta, who stated appellant discussed his plans to commit the murder, including purchasing rope, hay, gas, and candles, and said he would kill Jessica to avoid paying support.

The Commonwealth also introduced evidence of preparatory activities and behavioral changes of appellant. Ms. Riddle testified concerning appellant's rule that shoes not be worn in the house, his objection to Ms. Riddle going out, and his rule that bedroom doors must be closed and locked. This was significant because on the night of the fire, appellant kept his shoes in his bedroom and urged Ms. Riddle to go out that night. During the fire, Jessica's door was open.

Detective Michael Dugan testified to a threatening note left on appellant's mailbox. The detective was able to connect the note to appellant by a dog hair on the envelope which, when compared to the hair on one of appellant's dogs, was 1,100 times more likely to have come from that dog than any other dog.

The jury found three aggravating circumstances which outweighed its finding of two mitigating circumstances, and sentenced appellant to death. The three aggravating circumstances found by the jury were: (1) appellant committed a killing while in the perpetration of a felony (arson), 42 Pa.C.S. 9711(d)(6); (2) appellant knowingly created a grave risk of death to another person other than the victim of the murder, id., 9711(d)(7); and (3) the victim was a child under 12 years of age, id., 9711(d)(16). The jury found appellant had no significant history of prior criminal convictions, id., 9711(e)(1), and a positive work history, falling within 42 Pa.C.S. 9711(e)(8)s catchall provision, as mitigating circumstances.

Appellant raises the following issues:

1. Whether the death verdict was against the weight of the evidence.

2. Whether the trial court erred in refusing to dismiss a seated juror and substitute an alternate.

3. Whether the trial court erred in admitting Commonwealth evidence which by inference was in violation of the courts prior order in limine.

4. Whether the trial court erred in admitting specific testimony of key prosecution witness Denise Riddle by permitting her to testify regarding a supposed threat appellant made regarding a separate arson and as to the sexual relationship between Ms. Riddle and appellant.

5. Whether the trial court erred and abused its discretion in not permitting appellant to represent himself.

6. Whether the Commonwealth violated the dictates of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), in not disclosing exculpatory evidence in its possession.

Before addressing appellants arguments, we begin by independently reviewing the evidence to determine whether it was sufficient to sustain appellant's first degree murder conviction. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937, 942 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444 (1983), reh'g. denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983). To determine whether the evidence was sufficient, we accept the evidence in the light most favorable to the Commonwealth, and all reasonable inferences arising therefrom. Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728, 732 (1987), cert. denied, 484 U.S. 928, 108 S.Ct. 293, 98 L.Ed.2d 253 (1987). Section 2502(a) of the Crimes Code states, "[a] criminal homicide constitutes murder of the first degree when it is committed by an intentional killing." 18 Pa.C.S. § 2502(a). Intentional killing is "[k]illing by means of... willful, deliberate and premeditated killing." Id., § 2502(d). A "willful, deliberate and premeditated killing" occurs where the actor has manifested the specific intent to end the life of the victim. Nelson, at 732 (citation omitted). A person who commits arson endangering persons is guilty of first degree murder "if the fire or explosion causes the death of any person and was set with the purpose of causing the death of another person." 18 Pa.C.S. § 3301(a)(2). "Where the conviction for first degree murder is based upon arson the Commonwealth must ... establish that there was a fire of incendiary origin[,] ... the accused deliberately caused the fire[,] ... [and] the fire was the cause of death." Commonwealth v. Pierce, 537 Pa. 514, 645 A.2d 189, 194 (1994) (citations omitted).

As the evidence was sufficient to establish the fire was of incendiary origin, that appellant deliberately set the fire, with the specific intent to kill his daughter, and that the cause of Jessica's death was the fire, the evidence was sufficient to sustain appellant's conviction for first degree murder.

Appellant argues the death verdict was against the weight of the evidence. Specifically, he contends the jury erred in finding only the first two of the following five mitigating factors presented: no significant history of prior criminal convictions, 42 Pa.C.S. 9711(e)(1); a positive work history, id., 9711(e)(8); successful adaptation to prison, id.; a history of showing compassion and mercy to others, id.; and a history of neurological impairment and brain damage, id., because the evidence establishing the mitigating factors was uncontested.

There is no requirement a jury find all mitigating factors presented simply because the Commonwealth fails to rebut the existence of such factors. See Commonwealth v. Breakiron, 524 Pa. 282, 571 A.2d 1035, 1043 (1990). The weight of the evidence is exclusively for the finder of fact, who is free to believe all, part, or none of the evidence, and to assess the credibility of witnesses. Commonwealth v. Johnson, 542 Pa. 384, 668 A.2d 97, 101 (1995). As to these issues, an appellate court cannot substitute its judgment for that of the finder of fact. Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d 1203, 1206 (1982). The question of the existence of a mitigating factor is for the jury. Breakiron, at 1043.

It is axiomatic that once a jury has been properly instructed on the nature of aggravating and mitigating circumstances as defined in the statute, as well as on the statutory scheme for balancing one against the other, it is not for reviewing courts to usurp the jury function and to substitute their judgment for that of the jury.

Id. The jury was presented with the evidence and chose, in its discretion, to reject it with respect to three mitigating factors, as was its right. The jury was properly instructed as to the parties' respective burdens concerning aggravating and mitigating factors and the balancing of factors, and we will not substitute our judgment for that of the jury. See N.T., 10/8/02, at 123-29; 42 Pa.C.S. § 9711(c).

Appellant next asserts the trial court erred in refusing to dismiss a seated juror who violated the courts sequestration rules. During trial, Ms. Barczynski, an employee of the hotel where the jurors were sequestered, alleged the juror in question was drinking at a local bar and made statements indicating bias or prejudice. Following an in camera hearing, the trial court found the juror credible and Ms. Barczynski incredible, and it concluded the juror had not left the hotel or acted improperly. "The discharge of a juror is within the sound discretion of the trial court. Absent a palpable abuse of that discretion, the court's determination will not be reversed." Commonwealth v. Jacobs, 536 Pa. 402, 639 A.2d 786, 790 (1994) (citing Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627, 632 (1977)). Based on the credibility findings of the trial court, we find no abuse of discretion in refusing to discharge this juror.

Appellant next contends the trial court erred in admitting evidence in violation of an in limine order, precluding evidence of a 1995 arson in appellants home. The evidence he challenges was a threatening note authored by appellant that read, "Get rid of the dogs or Ill kill them and burn you out again." Appellant objects to the word "again" as referring to his involvement in other...