Commonwealth v. Treiber

• Decision Date: 17 August 2015
• Docket Number: No. 656 CAP,656 CAP
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Stephen TREIBER, Appellant.
• Court: Pennsylvania Supreme Court

121 A.3d 435

COMMONWEALTH of Pennsylvania, Appellee

v.Stephen TREIBER, Appellant.

No. 656 CAP

Supreme Court of Pennsylvania.

Submitted May 30, 2013.

Decided Aug. 17, 2015.

Hunter Stuart Lobovitz, Esq., Defender Association of Philadelphia, Maura McNally, Esq., Federal Public Defender's Office, for Stephen E. Treiber.

Gregory Joseph Simatic, Esq., Pittsburgh, Amy Zapp, Esq., PA Office of Attorney General, for Commonwealth of Pennsylvania.

SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.

OPINION

Justice EAKIN.

Appellant, Stephen Treiber, appeals from the order denying him collateral relief from his criminal convictions and death sentence pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541 –9546. We affirm.

On the night of March 9, 2001, appellant set fire to his home while his girlfriend, Denise Riddle, and his two-year-old daughter, Jessica, slept inside. As the home burned, appellant and Ms. Riddle escaped, but Jessica remained in her crib until firefighters removed her; however, they were unable to revive her. Appellant was charged with criminal homicide, reckless endangerment, and multiple counts of arson; the Commonwealth gave notice of its intent to pursue the death penalty.

Appellant's neighbor, who went to help after seeing smoke emanating from the home, testified at trial that appellant and Ms. Riddle were standing on a second-story deck, and Ms. Riddle screamed for help while appellant calmly stood by with his arms folded. Appellant asked about the well-being of his dogs but, when referring to Jessica, said, “[T]he firemen will get her. She's probably dead anyway.” N.T. Trial, 9/30/02, at 97. A fire marshal who investigated the scene testified the fire had been started at two points of origin—one in the basement and the other in the garage—using gasoline, clothing, straw, and candles. He noted the home's security system had been disabled and one wire had been cut. The marshal also observed a chain ladder affixed to the residence, which, he reasoned, had been recently tethered to the home because it had no signs of rust. Members of the fire and police departments also testified Jessica's bedroom door was open, and stated appellant was unusually calm and inquired only about his dogs. At the scene, police told appellant they were searching for Jessica, to which he responded, “[W]ell, it's probably too late anyway.” Id., at 242.

At trial, Ms. Riddle described appellant as very controlling, stating he implemented and enforced rules that shoes not be worn in the home, and that bedroom doors be closed and locked. Ms. Riddle also mentioned appellant had previously forbidden her from going to a local bar, once even threatening to burn it down if she went there again. She testified that, during the fire, appellant escorted her and two of their dogs onto the deck, but told her he could not rescue Jessica because “the smoke was too bad[.]” N.T. Trial, 10/2/02, at 124–25. Yet, Ms. Riddle recalled she did not observe much smoke at that time. She also testified that after Jessica was pronounced dead, appellant instructed her not to talk to police, and when she expressed her sorrow of Jessica's death to appellant, he replied they “could always make another little Jessica[.]” Id., at 136.

The Commonwealth introduced extensive evidence of appellant's preparatory activities and behavioral changes. Weeks before the fire, appellant became obsessed with fire safety, making Ms. Riddle and her 22–year old son, Erik Keith, practice fire-evacuation routes. One month before the fire, appellant purchased straw on four separate occasions, along with two five-gallon gas cans, and he bought gasoline on two separate occasions the day of the fire. The week before the fire, appellant affixed a chain ladder to the residence as a means of escape. Four days before the fire, appellant called an ADT Security Services employee to his home to update his security system. He disclosed to her he knew how to disable the security system and said a fire might start in his home in a few days. A funeral director testified that during meetings with appellant for Jessica's funeral arrangements, he did not show emotion and repeatedly referred to Jessica as “it.” N.T. Trial, 10/3/02, at 161.

Evidence of appellant's motive and intent was also introduced at trial. Appellant's unwillingness to pay child support was established by testimony from Jodie Treiber, Jessica's mother. Ms. Treiber stated appellant had a visitation weekend with Jessica scheduled for March 9—the weekend of the fire—but appellant insisted he take Jessica early, i.e., the previous Tuesday of that week. When appellant picked up Jessica, Ms. Treiber informed him she intended to increase his child-support payments. Jamie Pianta,¹ who accompanied appellant and Mr. Keith on the trip to pick up Jessica, testified appellant discussed his plans to kill Jessica to avoid paying child support, stating he would use rope, gasoline, straw, and candles to start a fire in the home. Mr. Pianta said appellant expressed the same plans to him and Mr. Keith about one month earlier, during another trip to pick up Jessica. Other witnesses testified about appellant's financial motives for the murder. For instance, one month before the fire, appellant tried to increase the limits on his credit card and his homeowner's insurance, and sought to purchase life insurance on Jessica, naming himself as beneficiary. He also changed his automobile comprehensive deductible but did not alter his collision insurance.

The Commonwealth established appellant took steps to make it appear that someone else started the fire. Specifically, it asserted appellant, about six weeks before the fire, contrived a threatening note and surreptitiously attached it to his own mailbox, arranging for Ms. Riddle to find it and report it to police. The Commonwealth contended the note was appellant's effort to cast suspicion away from himself and onto an unknown intruder. The note, which was comprised of letters cut from printed materials glued onto the paper, was addressed to “Steve,” and said, “[G]et rid of dogs or I kill them and burn you out again.” N.T. Trial, 10/2/02, at 88–89. Earlier that day, appellant called Ms. Riddle and told her someone was lurking around their home. When police arrived to investigate, appellant told them the doorbell rang earlier in the night but no one was there, and he saw the note affixed to the mailbox at that time. Police discovered hairs stuck to glue in the envelope and subsequently retained the services of DNA experts Dr. Joy Halverson and Dr. Christopher Basten. They determined one of the hairs was a canine hair, compared it to the hair of appellant's dog, and concluded the hair was 1,000 times more likely to have come from appellant's dog than any other dog.

A jury convicted appellant of 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. At the penalty phase, the jury found three aggravating circumstances and two mitigators. The aggravating circumstances 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). As for the mitigating circumstances, the jury found appellant had no significant history of prior criminal convictions, id., § 9711(e)(1), and a positive work history, falling within § 9711(e)(8)'s catch-all provision. However, the jury determined the aggravating circumstances outweighed the mitigating circumstances and sentenced appellant to death. This Court affirmed appellant's convictions and death sentence, Commonwealth v. Treiber, 582 Pa. 646, 874 A.2d 26, 33 (2005), and the United States Supreme Court denied certiorari, Treiber v. Pennsylvania, 547 U.S. 1076, 126 S.Ct. 1783, 164 L.Ed.2d 528 (2006). The same counsel represented appellant at trial and on direct appeal.²

Appellant filed a pro se PCRA petition, and counsel from the Federal Community Defender Office (FCDO) entered their appearance on appellant's behalf³ and filed an amended petition. The PCRA court held evidentiary hearings on ten separate dates and denied relief. Appellant presents 14 issues for review:

I. Was trial counsel ineffective for failing to challenge the Commonwealth's dog DNA evidence?

II. Was the Commonwealth's dog DNA evidence false and unreliable in violation of [a]ppellant's rights to due process and a fair trial?

III. Was trial counsel ineffective for failing to reasonably investigate, develop[,] and present evidence in the guilt phase undermining the Commonwealth's motive theories and supporting the defense?

IV. Did trial counsel ineffectively fail to impeach Jamie Pianta and ineffectively fail to request a corrupt source instruction with regard to Pianta's testimony?

V. Was [a]ppellant convicted on the basis of inaccurate and unreliable testimony, in violation of his 8th and 14th Amendment rights?

VI. Did the Commonwealth violate its Brady^{[ 4 ]} obligations?

VII. Did the trial court abuse its discretion when it failed to voir dire the remaining jurors after dismissing [a] juror[ ]?

VIII. Was trial counsel ineffective for failing to present good character evidence at [the] guilt phase?

IX. Was [a]ppellant erroneously denied his constitutional right to represent himself at trial?

X. Was trial counsel ineffective for failing to reasonably investigate, develop[,] and present expert evidence at [the] guilt phase?

XI. Is [a]ppellant entitled to relief from his death sentence because counsel was ineffective for failing to investigate, develop[,] and adequately present substantial mitigating evidence?

XII. Is [a]ppellant entitled to a new sentencing hearing where errors in the trial court's penalty phase instructions, both individually and

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