Commonwealth v. Foley

38 A.3d 882, 2012 Pa. Super. 31, 2012 WL 473468, 2012 Pa. Super. LEXIS 36
CourtSuperior Court of Pennsylvania
DecidedFebruary 15, 2012
StatusPublished
Cited by70 cases

This text of 38 A.3d 882 (Commonwealth v. Foley) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Foley, 38 A.3d 882, 2012 Pa. Super. 31, 2012 WL 473468, 2012 Pa. Super. LEXIS 36 (Pa. Ct. App. 2012).

Opinion

OPINION BY

PANELLA, J.

Appellant, Kevin James Foley, appeals from the judgment of sentence entered on June 1, 2009, by the Honorable William J. Martin, President Judge of the Court of Common Pleas of Indiana County, Criminal Division. After careful review, we affirm.

In the early morning hours of April 13, 2006, Dr. John Yelenic, a dentist living alone in Blairsville, Pennsylvania, was brutally assaulted and murdered in his home. After an eight-day jury trial, Foley, a Pennsylvania State Police Trooper who was living with Dr. Yelenic’s estranged wife,1 was found guilty of first-degree murder and sentenced to life imprisonment. This timely appeal followed.

Appellant presents the following issues for our review:

I. WHETHER THE TRIAL COURT ERRED IN PRECLUDING THE TESTIMONY OF BETTY MORRIS AT TRIAL, WHERE THE EVIDENCE WAS RELEVANT AND ADMISSIBLE TO DEMONSTRATE THE MOTIVE OF ANOTHER PERSON TO COMMIT THE CRIME?
II. WHETHER THE TRIAL COURT ERRED IN ADMITTING THE TESTIMONY OF DR. MARK PERLIN, IN VIOLATION OF THE FRYE TEST FOR THE ADMISSIBILITY OF NOVEL SCIENTIFIC TESTIMONY?
III. WHETHER THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE?
IV. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING THE [886]*886SHOE PRINT EVIDENCE AT TRIAL?
V. WHETHER THE TRIAL COURT ERRED IN INSTRUCTING THE JURY ON THE PERMISSIVE INFERENCE OF MALICE FROM THE USE OF A DEADLY WEAPON?

Appellant’s Brief, at 4. We proceed to the merits.

Foley’s first claim is that the trial court erred in excluding the testimony of Bette Morris.2 The trial court may exercise its discretion in deciding whether to admit evidence, and our review of the trial court’s evidentiary decisions is limited to determining whether the trial court abused its discretion. See Commonwealth v. Moser, 999 A.2d 602, 605 (Pa.Super.2010). The trial court abused its discretion only if its ruling “reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support to be clearly erroneous.” Id.

During the criminal investigation of this case, Bette Morris said to a law enforcement officer that on two occasions she had observed Dr. Yelenic engaged in intimate acts with his next door neighbor, Melissa Uss. According to Foley’s counsel, if placed on the stand, Bette Morris would deny that she had ever made such observations, and then counsel would treat her as a hostile witness and impeach her with the statement she gave police. See N.T., March 17, 2009, at 135. When the Commonwealth objected that this evidence was irrelevant, Foley’s counsel explained that it was intended to show that Melissa Uss’s husband had a motive to kill Dr. Yelenic: “[A] jury could infer that somebody who was having a romantic affair with Dr. Ye-lenic, the husband might be inclined to do something and that is a fair inference from that.” Id., at 137. However, when the trial court asked whether the defense had any evidence that Melissa Uss’s husband knew of the supposed intimate acts, defense counsel conceded that he had no such evidence. See id. According to the defense, Bette Morris’s observations were made when Mr. Uss was in the military and not at home.3 See id., at 135.

The trial court excluded the testimony of Bette Morris on the grounds that it was “a mere suggestion of motive and therefore irrelevant and inadmissible.” Opinion and Order of Court, November 4, 2009, at 10. Generally, “proof of facts showing the commission of the crime by someone else is admissible.” Commonwealth v. Boyle, 470 Pa. 343, 368 A.2d 661, 669 (1977). However, the Pennsylvania Supreme Court has held that facts suggesting that someone had a motive should not be considered by the jury if the person had no knowledge of the suggestive facts. See Commonwealth v. Giovanetti, 341 Pa. 345, 19 A.2d 119, 125 (1941).

In Giovanetti, the murder victim had an employer-provided life insurance policy with his wife, the defendant, listed as the beneficiary. See id. The trial court refused the defendant’s request to instruct the jury that it could consider the insurance policy as evidence of her motive only if it found that she knew about the policy [887]*887before the murder. See id. The Supreme Court reversed, holding that the wife’s knowledge of the policy was necessary for it to be considered as evidence of her motive to kill. See id.

The trial court’s decision to preclude the testimony of Bette Morris had a sufficient basis in the governing law and was not an abuse of discretion. Although intimate contact between the victim and Melissa Uss may suggest that her husband had a motive, “merely suggesting that someone else may have had a motive is not evidence.” Commonwealth v. Rivers, 537 Pa. 394, 644 A.2d 710, 715 (1994). The trial court acted within its discretion in rejecting the testimony as irrelevant because the husband had no knowledge of the intimate contact. See Giovanetti, 19 A.2d at 125. Because there was no other evidence corroborating the suggestion that Mr. Uss was a killer motivated by jealousy, the trial court’s decision to preclude the testimony of Bette Morris was a permissible exercise of discretion.

Foley’s reliance on Commonwealth v. Ward, 529 Pa. 506, 605 A.2d 796 (1992), is misguided. In that case, the defendant was a police informant who was convicted of arson. The trial court precluded evidence that the people whom he had informed against had threatened him and had committed the arson in retaliation against him. See id., at 797. In addition, the trial court precluded testimony from “an American Red Cross worker as to appellant’s request for assistance following the fire, the organization’s investigation, and its subsequent provision of emergency fund vouchers for clothing,” which the defendant sought to introduce in order to “undermine the Commonwealth’s evidence of motive by arguing the unlikelihood that appellant would destroy all of his own worldly possessions merely because of a disagreement with his brother.” Id.

Ward is distinguishable from the instant case. In Ward, the defendant’s offer of proof indicated that the other potential perpetrators knew that the defendant had given information about them to the police. See id. Further, the precluded evidence from the Red Cross worker concerned the defendant’s own motive to commit the crime rather than someone else’s motive. Unlike the testimony at issue in the instant case, the evidence at issue in Ward was relevant, and its exclusion violated the defendant’s fundamental right to introduce relevant, admissible evidence. See id. (citing Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)).

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Cite This Page — Counsel Stack

Bluebook (online)
38 A.3d 882, 2012 Pa. Super. 31, 2012 WL 473468, 2012 Pa. Super. LEXIS 36, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-foley-pasuperct-2012.