J-A24016-18

                                   2019 PA Super 46


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSEPH BERNARD FITZPATRICK, III            :
                                               :
                       Appellant               :   No. 259 MDA 2018

       Appeal from the Judgment of Sentence Entered December 6, 2017
    In the Court of Common Pleas of York County Criminal Division at No(s):
                          CP-67-CR-0002534-2014


BEFORE: OTT, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

OPINION BY McLAUGHLIN, J.:                          FILED FEBRUARY 19, 2019

        Joseph Bernard Fitzpatrick III, appeals from the judgment of sentence

entered on December 6, 2017, following his conviction for first-degree

murder.1 Fitzpatrick maintains that the trial court improperly admitted hearsay

evidence and erroneously applied the coordinate jurisdiction rule. We affirm.

        The trial court aptly summarized the procedural history and facts of this

case as follows:

              On June 6, 2012, emergency personnel were dispatched to
        2288 Old Forge Road in Chanceford Township, which is located in
        York County, Pennsylvania. EMTs found [Fitzpatrick] and his wife,
        Annemarie Fitzpatrick [“Victim”], down near the shore line of
        Muddy Creek. [The victim] was unresponsive, but EMTs were
        eventually able to get a pulse and she was transported to the
        hospital. A short time later, [the victim] was pronounced dead.
        Foul play was not suspected and the family began making
        arrangements; [the victim’s] body was sent to the mortician for
        embalming.
____________________________________________


1   18 Pa.C.S.A. § 2502(a).
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              Two days later, on June 8, 2012, the Pennsylvania State
       Police received a call from Rebekah Berry, who was employed by
       the same company as [the Victim]. Employees at Collectibles
       Insurance had found a note in [Victim’s] day planner that they felt
       was “suspicious.” The note said, “If something happens to me –
       JOE.” It was dated June 6, 2012, and signed “A. Fitzpatrick.” Upon
       request, Ms. Berry was given access to [the victim’s] work email
       where      she  found     an  email    from    [the   victim]   to
       ‘feltonfitz@gmail.com,’ which was [Victim’s] personal [email]
       account. The subject line of the email stated, “if something
       happens to me,” and the body of the email read ‘Joe and I are
       having marital problems. Last night we almost had an accident
       where a huge log fell on me. Joe was on the pile with the log and
       had me untying a tarp directly below.” This email was sent June
       6, 2012 at 10:30 a.m. Ms. Berry showed police the note and gave
       them access to [the victim’s] email account.

             After viewing the note and email, troopers contacted
       [Fitzpatrick] and asked if he would be willing to come in for an
       interview; [Fitzpatrick] agreed. [Fitzpatrick] was asked to again
       explain what occurred the night [the victim] died; he was never
       asked about the note or email.[2]

             On June 9, 2012, approximately two days after [Victim’s]
       death and after the body had been embalmed, an autopsy was
       conducted. Dr. Barbara Bollinger, the forensic pathologist,
       determined that the cause of death was drowning. Although she
       was not asked to opine on the manner of death, she did state that
       she thought the circumstances were “suspicious.”

             From the point the handwritten note and email were found,
       the investigation turned from an accident investigation into a
____________________________________________


2 Fitzpatrick made contradictory statements regarding the accident. Initially
he stated to the Emergency Medical Technician on the scene that he found the
victim under the ATV and tried to get her loose. However, he told one of the
investigating troopers that he “searched for the Victim around the ATV and
could not find her, and that it was not until he was later on the phone that
[Fitzpatrick] saw Victim across the creek and then jumped backed into the
water and retrieved her from across the creek.” Commonwealth v.
Fitzpatrick, 159 A.3d 562. 570 n.6 (Pa.Super. 2017), appeal denied, 173
A.3d 255 (Pa. 2017).

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      homicide investigation with the prime suspect being [Fitzpatrick].
      Eventually, troopers discovered that [Fitzpatrick] was having a
      non-sexual affair with a woman named Jessica Georg, and was
      thinking of leaving his wife for her. When confronted, [Fitzpatrick]
      admitted to hiding [Victim’s] phone from the police in an effort to
      hide this affair. Troopers also discovered that [Fitzpatrick] would
      gain approximately $1.7 million in life insurance if [Victim] were
      to die. After searching [Fitzpatrick’s] work computer, troopers
      recovered two Google searches from around the time of [Victim’s]
      death. The first search, done on June 1, 2012, searched for “life
      insurance review during contestability period.” The second search,
      done on June 5, 2012, searched for “polygraph legal in which
      states.” This all led to [Fitzpatrick’s] arrest on March 6, 2014 –
      approximately a year and a half after [Victim’s] death.

            [Fitzpatrick] was formally arraigned on May 19, 2014, and
      Christopher A. Ferro, Esquire, entered his appearance on May 22,
      2014. The case was assigned to the Honorable Gregory M. Snyder,
      who scheduled a pre-trial conference for August 18, 2014. After
      two extensions, [Fitzpatrick] filed on omnibus pre-trial motion on
      August 7, 2014. In that motion he raised several issues, however,
      because he only raises the issue of the hearsay note and email in
      his post-sentence motion we will not discuss the other issues.
      Specifically, [Fitzpatrick] argued that the handwritten note and
      email were inadmissible hearsay and the Commonwealth should
      not be allowed to present either as evidence. The Commonwealth
      countered that the note and email were hearsay but admissible
      under the state of mind exception. On October 20, 2014, Judge
      Snyder denied [Fitzpatrick’s] request, and permitted the
      Commonwealth to present both the handwritten note and email.

            The case was reassigned to the undersigned Judge due to
      Judge Snyder’s reassignment into the Family Division. We listed
      the case for trial during the May term of trials.

            [Fitzpatrick’s] trial began on May 4, 2015. On May 13, 2015,
      [Fitzpatrick] was found guilty of First Degree Murder, and was
      sentenced to life imprisonment on the same day.

Trial Court Opinion (“TCO’), filed September 1, 2015, at 1-4.

      Fitzpatrick filed a post-sentence motion, which the trial court granted

and denied in part. The trial court denied Fitzpatrick’s request for a new trial


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but granted his motion for judgment of acquittal on the basis that the

Commonwealth presented insufficient evidence for the first-degree murder

conviction. The Commonwealth appealed and this Court reversed the order,

concluding, “[T]he record, viewed in the light most favorable to the

Commonwealth, reflects that the Commonwealth established Victim was

unlawfully killed and that [Fitzpatrick] committed the murder with the

requisite motive and intent.” Fitzpatrick, 159 A.3d at 570. Following remand,

the trial court reinstated Fitzpatrick’s sentence of life imprisonment on

December 6, 2017. He then filed a post-sentence motion, which the trial court

denied. This timely appeal followed.

     On appeal, Fitzpatrick raises three issues:

     I.     Whether [Fitzpatrick] was denied rights granted to him by
            the United States Constitution         and Pennsylvania
            Constitution when inadmissible hearsay, in the form of a
            note and email from [Fitzpatrick’s] deceased wife, was
            admitted into evidence and used by the Commonwealth to
            secure a conviction on the charge of murder?

     II.    Whether the improper admission of inadmissible hearsay
            was harmless error?

     III.   Whether the post-trial motion judge is barred by the
            coordinate jurisdiction rule from correcting a mistake made
            by a prior judge during the pre-trial process, including, but
            not limited to the erroneous admission of hearsay evidence?

Fitzpatrick’s Br. at 4 (suggested answers omitted).

     Fitzpatrick’s first two issues center on the trial court’s evidentiary ruling

regarding the admission into evidence of the note and the email. “An appellate

court’s standard of review of a trial court’s evidentiary rulings, including

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rulings on the admission of hearsay . . . is abuse of discretion.”

Commonwealth v. Walter, 93 A.3d 442, 449 (Pa. 2014). Thus, we will not

disturb an evidentiary ruling unless “the law is overridden or misapplied, or

the judgment exercised is manifestly unreasonable, or the result of partiality,

prejudice, bias, or ill-will, as shown by evidence of record.” Commonwealth

v. Cooper, 941 A.2d 655, 667 (Pa. 2007) (citation omitted).

      Here, the Commonwealth argues that while the letter and email are

hearsay, they are admissible under the state-of-mind exception. See

Commonwealth’s Br. at 29. It claims that, “[t]he admitted evidence was

relevant as to [Fitzpatrick’s] motive, malice, and ill-will toward victim.” Id. at

27.

      In contrast, Fitzpatrick argues that “the note and e-mail are classic

hearsay, and none of the carved-out exceptions” apply. Fitzpatrick’s Br. at 21.

Fitzpatrick cites Commonwealth v. Levanduski, 907 A.2d 3 (Pa.Super.

2006) (en banc), in support of his position. Id. at 24. He also notes that “[t]he

Pennsylvania Supreme Court has already correctly asserted that the

declarant’s state of mind in a homicide prosecution is often times irrelevant.”

Id. at 24 (citing Commonwealth v. Laich, 777 A.2d 1057, 1060-61 (Pa.

2001)).

      In Levanduski, the trial court admitted into evidence a letter written

by the murder victim. The victim expressed in the letter that if he was killed,

suspicions should be turned on his wife, Levanduski, and her paramour. Id.


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at 10. The trial court reasoned that the letter was hearsay but was admissible

to prove motive and the relationship between Levanduski and her paramour.

Id. at 10-11. An en banc panel of this Court held that the letter was

inadmissible under many exceptions to the hearsay rule, including the state-

of-mind exception. The Court stated:

      Mr. Sandt’s [the victim] state of mind was not a matter at issue
      in this case. Only when Mr. Sandt’s letter is considered for the
      truth of the matter asserted, does it become relevant, that is
      material to and probative of [Levanduski’s] intent or motive to kill
      Mr. Sandt. However, when considered for its substantive truth,
      although relevant, the letter is incompetent and therefore
      inadmissible.

Id. at 19 (citations omitted). The Court ultimately affirmed the judgment of

sentence, concluding that the introduction of the letter was harmless error.

Id. at 22.

      Here, the trial court concluded that Commonwealth v. Luster, 71 A.3d

1029 (Pa.Super. 2013), supported the admission of both documents. N.T.,

Motions Hearing at 100. In Luster, the victim made statements expressing

her fear of Luster and that he might do something bad to her. Luster, 71 A.3d

at 1040. Our Supreme Court concluded, “[T]he victim’s statement that she

feared [Luster] and he was going to harm her is admissible because it shows

Luster’s ill will and malice toward the victim.” Id. at 1041. The trial court here

explained that both the note and the email were admissible under the state-

of-mind exception because “[h]earsay that tends to prove motive or malice of




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a defendant accused of murder of the first degree is admissible under the state

of mind exception to hearsay.” N.T., Motions Hearing at 106.

      Hearsay is “a statement that (1) the declarant does not make while

testifying at the current trial or hearing; and (2) a party offers in evidence to

prove the truth of the matter asserted in the statement.” Pa.R.E. 801(c). It is

not admissible as evidence unless an exception to the hearsay rule applies.

See Pa.R.E. 802; see also Pa.R.E. 802, 803, 803.1, and 804. One of the

exceptions to the rule against hearsay is the state of mind exception:

      A statement of the declarant’s then-existing state of mind (such
      as motive, intent or plan) or emotional, sensory, or physical
      condition (such as mental feeling, pain, or bodily health), but not
      including a statement of memory or belief to prove the fact
      remembered or believed unless it relates to the validity or terms
      of the declarant’s will.

Pa.R.E. 803(3).

      “The admissibility of evidence relating to a victim’s state of mind has

been a subject of difference in this Court’s recent decisions.” Commonwealth

v. Moore, 937 A.2d 1062, 1070-71 (Pa. 2007). In some instances, following

Luster, our Courts have held that the state-of-mind exception applies to a

murder victim’s statement. See Commonwealth v. Parker, 104 A.3d 17, 29

(Pa.Super. 2014) (victim’s questions to grandmother were admissible under

state of mind exception); see also Commonwealth v. Kunkle, 79 A.3d

1173, 1185 (Pa.Super. 2013) (victim’s statement that he was scared of

defendant and if he died it would be defendant’s fault was properly admitted

as evidence based on state of mind exception). At other times, our appellate

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Courts have held that the state-of-mind exception does not apply to a murder

victim’s statement. See Commonwealth v. Green, 76 A.3d 575, 582

(Pa.Super. 2013) (victim’s statements that she was afraid of defendant and

did not want “to go with him” were not admissible under state of mind

exception); see also Moore, 937 A.2d at 1069 (victim’s statement that

defendant bullied him was not admissible under state of mind exception); see

also Commonwealth v. Thornton, 431 A.2d 248, 251 (Pa. 1981) (victim’s

statement that he was fearful of defendant was not admissible under the state

of mind exception).

      We conclude that the note was admissible under the state-of-mind

exception, but the email was not. The note was admissible over the hearsay

objection because it tended to establish the victim’s then-existing belief, i.e.,

her state of mind, which was relevant to show the ill will that the victim

perceived from Fitzpatrick, and, by implication, that their marriage was not

going well. The note was thus not offered for the truth of the matter asserted

and therefore was not hearsay. See Commonwealth v. Puksar, 740 A.2d

219, 225 (Pa. 1999) (“Statements are admissible to establish ill-will or motive

where they are not being offered for the truth of the matter contained

therein”); see also Commonwealth v. Brown, 648 A.2d 1177, 1182 (Pa.

1994) (stating out of court statement that is not offered for truth but “only for

the fact that it was made,” is not inadmissible hearsay).




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      In contrast, the victim’s email was hearsay and not rendered admissible

by the state-of-mind exception. The email did not relate to the victim’s then-

existing state of mind. Rather, the email was the victim’s recount of her

“memory or belief to prove the fact remembered,” which is explicitly excluded

by the state of mind exception. Pa.R.E. 803(3) (exception does not include

“memory or belief to prove the fact remembered or believed unless it relates

to the validity or terms of the declarant’s will”); see also Levanduski, 907

A.2d at 19 (concluding letter written by murder victim could not be considered

a memory or belief under state of mind exception because it was not related

to the victim’s will). Therefore, we conclude that the trial court abused its

discretion in admitting this evidence.

      Although the trial court erroneously admitted the email into evidence,

the admission was harmless error in light of the overwhelming evidence

against Fitzpatrick. See Green, 76 A.3d at 582-83 (concluding harmless error

of admission of victim’s hearsay statement where there was sufficient and

compelling evidence of defendant’s guilt besides the hearsay evidence); see

also Levanduski, 907 A.2d at 22 (concluding admission of victim’s statement

was harmless error where there was other overwhelming evidence of

defendant’s guilt).

      “The Commonwealth bears the burden of establishing the harmlessness

of the error.” Laich, 777 A.2d at 1062. It must show at least one of the

following:


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J-A24016-18


      (1)   The error did not prejudice the defendant or the prejudice
            was de minimus or;

      (2)   The erroneously admitted evidence was merely cumulative
            of other untainted evidence which was substantially similar
            to the erroneously admitted evidence or;

      (3)   The properly admitted and uncontradicted evidence of guilt
            was so overwhelming and the prejudicial affect of the error
            so insignificant by comparison that the error could not have
            contributed to the verdict.

Id. at 1062-63. The Commonwealth argues that its burden to establish the

harmlessness of the admittance of the email is satisfied because “the evidence

presented at trial overwhelming supported [Fitzpatrick’s] conviction for first-

degree murder.” Commonwealth’s Br. at 58. We agree. As a prior panel

concluded, there was ample evidence of Fitzpatrick’s guilt:

             Our review of the record reflects that each of the three
      elements of first-degree murder was proven beyond a reasonable
      doubt. . . Dr. Bollinger testified to the multiple injuries appearing
      on [v]ictim’s body, which totaled at least twenty-five. . . In
      addition, Dr. Bollinger opined that, within a reasonable degree of
      medical certainty, the various bruises and injuries [v]ictim
      suffered could have resulted from [v]ictim being held under the
      water in a creek by another person and drowning. . . It is
      undisputed that [Fitzpatrick] and [v]ictim were alone on the
      property at the time that [v]ictim drowned in the creek. . . Thus,
      Fitzpatrick was the only person who could have held [v]ictim
      underwater in the creek, thereby making him responsible for the
      killing. . . Concerning the issue of specific intent possessed by
      [Fitzpatrick], the Commonwealth presented amply evidence of the
      couple’s estranged relationship, including the fact that
      [Fitzpatrick] was in the midst of an extramarital relationship with
      another woman. . . The Commonwealth also presented stipulated
      evidence of the existence of a total of $1,714,000 in life insurance
      policies upon [v]ictim, with [Fitzpatrick] being the designated
      beneficiary of those policies. In addition, it was stipulated that on
      the morning of June 1, 2012, [Fitzpatrick] conducted a Google


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J-A24016-18


      search on his work computer using the words “life insurance
      review during contestability period.”

Fitzpatrick, 159 A.3d at 568-570 (citations to notes of testimony omitted).

This Court also noted the additional inference of Fitzpatrick’s guilt because he

changed his statement regarding what happened at the lake. Id. at 570 n.6.

Our review of the record also brings us to the conclusion that the above

evidence amply established Fitzpatrick’s guilt, and the prejudicial effect of

admitting the email was so insignificant in comparison and therefore it could

not have contributed to the verdict.

      Due to our disposition of the hearsay issue for the note and email, we

do not address Fitzpatrick’s last issue regarding the coordinate jurisdiction

rule. Therefore, we affirm the judgment of sentence.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/2019




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