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                                 2015 PA Super 164



COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellant

                     v.

CHARLES DAVIS,

                            Appellee                      No. 2726 EDA 2013


               Appeal from the Order entered August 22, 2013,
            in the Court of Common Pleas of Philadelphia County,
              Criminal Division at No: CP-51-CR-0012499-2012


BEFORE: GANTMAN, P.J., BENDER, P.J.E., PANELLA, DONOHUE, SHOGAN,
        ALLEN, LAZARUS, MUNDY, and STABILE, JJ.

OPINION BY ALLEN, J.:                                       FILED JULY 29, 2015

      The Commonwealth appeals from the trial court’s order suppressing

confidential statements which Charles Davis (“Davis”) uttered to his spouse,

Nicole Walton (“Walton”), outside the presence of third parties. After careful

consideration, we affirm.

      The   trial   court    detailed   the   following   factual   and   procedural

background of this case as follows:

             On July 19, 2012, [Davis] and his alleged co-conspirator,
      Ali Marsh [(“Marsh”)], were charged with murder, attempted
      murder, robbery, burglary, aggravated assault, criminal
      conspiracy, possession of an instrument of crime (PIC) and
      violations of §§ 6105, 6106 and 6108 of the Uniform Firearms
      Act in connection with a home invasion shooting that left a man
      dead and his wife seriously injured.

            [Davis’] preliminary hearing was held on October 17, 2012
      before the Honorable Patrick F. Dugan.        Sherrell Paul, the
      decedent's wife, testified that she and her husband were at
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     home sleeping on the night of the shooting. Sometime between
     10:30 and 11:00 pm, Ms. Paul was awakened by her husband’s
     voice. When she went to investigate, Ms. Paul saw an unknown
     man in the hallway outside her bedroom. A struggle ensued.
     Ms. Paul kicked the unknown man down the stairs. At that
     point, shots rang out and Ms. Paul was struck. As she lay on the
     hallway floor, another unknown male ran past her and into her
     bedroom. Moments later, the second male came out, grabbed
     Ms. Paul and demanded money. When Ms. Paul responded that
     she did not have any, the second male shot her again, inflicting
     multiple gunshot wounds. (N.T., 10/17/12, pp. 13-22).

           Although Ms. Paul could not positively identify the
     assailants, she did provide a general description of both men.
     The first – the one that she struggled with initially – she
     described as black with a beard, wearing [“]a black Nike hoody.”
     (N.T., 10/17/12, p. 15). The second man she also described as
     black. He too had a beard, but was thinner than the first man
     and had a lighter complexion. (N.T., 10/17/12, p. 17).

            The Commonwealth also called [Davis’] wife, [Walton], to
     testify about his involvement in the shooting. Walton testified
     that she was at home sleeping on the night in question when
     [Davis] called her. According to Walton, Davis sounded anxious
     and told her that he needed her. Walton then drove to a pre-
     arranged location, where she met Davis and Marsh. She noticed
     that Marsh had been shot in the foot and was bleeding. Walton
     and Davis helped Marsh into Walton's truck. When Walton
     suggested taking Marsh to the closest hospital in Philadelphia,
     Marsh insisted that she take him to a hospital in another state.
     Ultimately, Walton drove Marsh to a hospital in Maryland. When
     they arrived at the hospital, Walton and Davis dropped Marsh off
     and returned to Philadelphia. Walton claimed inexplicably, that
     during the two hour ride to Maryland, the three of them never
     discussed what really happened on the night of the shooting.
     Instead, they discussed fabricating a story that Marsh had been
     robbed and shot in the foot. (N.T., 10/17/2, pp. 23-35).

            The Commonwealth, over the objection of defense counsel,
     was permitted to illicit testimony about private incriminating
     conversations between [Davis] and Walton.         During those
     conversations, which took place on the night of and a few days
     after the incident, [Davis] made numerous admissions to Walton
     about his involvement in the fatal shooting. Walton denied


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     making the statements and claimed that they were fabricated by
     police.

        [FN:1 Walton's statements were admitted as substantive
        evidence. See Commonwealth v. Liveley, 530 Pa. 464,
        610 A.2d 7 (Pa. 1992). In one statement, Walton told
        police that after returning to Philadelphia[,] Davis told her:
        "[w]e got into some shit last night, Nic. It’s bad. Real
        bad." In a second statement, Walton told police that she
        met Davis at 50th Street and Baltimore Avenue. Walton
        asked Davis if he had been involved in the murder in
        question. He responded: "Yeah, this shit is bad." When
        she then inquired why they had shot the deceased's wife,
        [Davis] said "that was Ali's dumb ass. He said he got his
        self shot and them n-----s left him there." Davis also told
        Walton that he had to go back into the house to drag Ali
        out because Ali could not move. No third parties were
        present during either of these conversations between Ms.
        Walton and Davis. (N.T., 10/17/12, pp. 27-36, 45-52, 61-
        64).]

     On cross-examination, Walton stated that she believed the
     conversations with her husband were confidential and that they
     were not made in the presence of any third parties.

           The Commonwealth and defense also agreed to several
     stipulations. First, the decedent, John Derek Paul, was shot to
     death inside his home at 3113 Cecil B. Moore Avenue on March
     5, 2012. Second, there was a blood trail [that] led from the
     inside of the decedent's home out to the street. This blood was
     tested and ultimately found to match that of [Marsh]. Finally,
     six .45 caliber and six .40 caliber cartridge casings were found in
     the entryway of the home, on the steps leading to the second
     floor and on the second floor landing. (N.T., 10/17/12, pp. 10-
     11).

            At the conclusion of [Davis’] preliminary hearing, the
     presiding Municipal Court Judge held both Davis and Marsh for
     trial on all charges.

           Davis filed a Motion to Quash with this court, claiming that
     the aforementioned private conversations between Davis and his
     wife were protected by the spousal testimony/confidential
     communications privileges of 42 Pa.C.S.A. §§ 5913 and 5914
     and had improperly been admitted at the preliminary hearing.
     Without   those     statements,   the   defense     argued,    the

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     Commonwealth failed to establish a prima facie case against
     Davis on any charges relating to the home invasion itself.

            On May 2, 2013, at a hearing before this court, the
     Commonwealth argued that although the disputed testimony fell
     under the spousal testimony/confidential communication
     privilege statutes, it was nonetheless admissible under a crime
     fraud exception. In support of its claim, the Commonwealth
     cited    numerous      federal cases    in  which    confidential
     communications made in furtherance of a crime or criminal
     activity were deemed admissible. See: U.S. v. James Hill, 967
     F.2d 902 (3rd Cir. 1992); U.S. v. Ammar, 714 F.2d 238 (3rd Cir.
     1983); U.S. v. Broome, 732 F.2d 363 (4th Cir.) cert. denied, 469
     U.S. 855 (1984); U.S. v. King, 541 F.3d 1143 (5th Cir. 2008);
     U.S. v. Neal, 743 F.2d 1441 (10th Cir. 1984).

           This court initially agreed with the Commonwealth's
     assertion. It ruled that the statements were admissible under
     the crime fraud exception and denied the Motion to Quash.

          Davis filed a Motion for Reconsideration in which he cited
     Commonwealth v. Savage, 695 A.2d 820 (Pa. Super. 1997),
     wherein former President Judge Vincent A. Cirrillo, writing for the
     majority, directly confronted this issue. The [Superior C]ourt in
     Savage held that there was no crime/fraud exception to the
     spousal privilege for confidential communications.

            On August 22, 2013, after reviewing Savage and
     considering further arguments, this court reversed its original
     position on the admissibility of Walton's testimony about the
     confidential communications with her husband. The court ruled
     such testimony was inadmissible. However, based upon the
     totality of the admissible evidence presented at the preliminary
     hearing, and considering that evidence and the reasonable
     inferences drawn therefrom in the light most favorable to the
     Commonwealth, this court ruled that even without the
     confidential communication testimony, the Commonwealth had
     made a prima facie case against Davis.

           On September 23, 2013, the Commonwealth filed the
     instant interlocutory appeal along with a Statement of Matters
     Complained of on Appeal, alleging that the court erred in
     suppressing Ms. Walton's testimony.      On October 4, 2013,
     [Davis] filed a cross-appeal.     In his Statement of Matters
     Complained of on Appeal, filed on November 8, 2013, [Davis]


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      alleged that the court erred by not granting his Habeas Corpus
      motion for discharge.

Trial Court Opinion, 3/25/14, at 1-5.

      On March 25, 2014, the trial court issued its opinion pursuant to

Pa.R.A.P. 1925. On October 28, 2014, our Court issued a per curiam order

determining that the Commonwealth’s appeal “should be considered by the

Court sitting en banc[.]” Order, 10/28/14, at 1. On January 28, 2015, by

per curiam order, we quashed as interlocutory Davis’ cross-appeal at 2972

EDA 2013 from the trial court’s denial of Davis’ habeas corpus motion for

discharge.

      Instantly, we consider the Commonwealth’s sole issue:

      Should the [trial] court’s exclusionary order, which depends on
      the erroneous premise that there is no crime fraud exception to
      the marital privilege in criminal cases, be reversed?

Commonwealth Brief at 2.

      In support of its contention that the confidential communications

between Davis and Walton “should be deemed admissible under the crime-

fraud exception to the marital privilege,” the Commonwealth argues:

      [T]he Pennsylvania Supreme Court has recognized a crime-fraud
      exception to the indistinguishable attorney-client privilege in
      criminal cases. This Court itself has recognized a crime-fraud
      exception to the marital privilege in civil cases. And a significant
      majority of other jurisdictions have recognized a crime-fraud
      exception to the marital privilege in both civil and criminal cases.

Commonwealth Brief at 10 (emphasis in original).          The Commonwealth

emphasizes that the “statute codifying the attorney-client privilege in


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criminal cases is identical to that codifying the marital privilege, except that

the former statute has the words ‘counsel’ and ‘client’ where the latter has

‘husband’ and ‘wife’.” Id. at 12-13. The Commonwealth further asserts that

“[our] Court has recognized for over seventy years that the crime-fraud

exception applies to the marital privilege in civil cases,” and that “the only

textual difference between the statute codifying the marital privilege in civil

cases and that codifying the same privilege in criminal cases is that the

former uses the word ‘civil’ where the latter uses the word ‘criminal’.” Id. at

14 (emphasis in original).

      In Pennsylvania, confidential marital communications are protected

from disclosure in criminal proceedings:

      § 5914. Confidential communications between spouses

      Except as otherwise provided in this subchapter, in a criminal
      proceeding neither husband nor wife shall be competent or
      permitted to testify to confidential communications made by one
      to the other, unless this privilege is waived upon the trial.

42 Pa.C.S. § 5914.

      Contrary to the Commonwealth’s arguments, our precedent in Savage

controls our affirmance of the trial court’s suppression order. We stated:

      The public policy sought to be enhanced by the privilege for
      confidential communication between spouses “is the preservation
      of marital harmony and the resultant benefits to society from
      that harmony.” Commonwealth v. Clark, 347 Pa.Super. 128,
      130-31, 500 A.2d 440, 441 (1985) (citing Hunter v. Hunter, 169
      Pa.Super. 498, 83 A.2d 401 (1951)).        “The privilege that
      protects information privately disclosed between husband and
      wife in the confidence of the marital relationship was once
      described by the United States Supreme Court as ‘the best

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      solace of human existence.’” Clark, 347 Pa.Super. at 132, 500
      A.2d at 442 (quoting Stein v. Bowman, 38 U.S.(13 Pet.) 209, at
      223, 10 L.Ed. 129 (1839) in Trammel v. U.S., 445 U.S. 40, 51,
      100 S.Ct. 906, 912-13, 63 L.Ed.2d 186 (1980)).

Savage, 695 A.2d at 822-823.

      In unanimously declining to extend to criminal proceedings the crime-

fraud exception to privileged marital communications which may be invoked

in civil matters, we explained:

      [] Even if a husband or wife may be summoned to testify
      adverse to his or her spouse, however, he or she is not
      competent to testify to confidential communications pursuant to
      section 5914. Newman, 534 Pa. at 430-32, 633 A.2d at 1072;
      Hancharik, 534 Pa. at 440-42, 633 A.2d at 1077.

                                    ***

      [] [T] the Commonwealth asks this court to find that Savage's
      claim is “not of arguable merit because the spousal privilege
      should not extend to communications in furtherance of criminal
      activity,” and that public policy and logic dictate as such. The
      Commonwealth argues, by analogy, that this court has
      suggested that communications in furtherance of a fraud would
      not be privileged in a civil action. See Kine v. Forman, 205
      Pa.Super. 305, 209 A.2d 1 (1965). We decline to accept the
      Commonwealth's invitation to extend such reasoning to this
      criminal case. By its plain language, section 5914 (protecting
      confidential communications between spouses), governs
      “criminal proceeding[s].”       42 Pa.C.S.A. § 5914.         The
      Commonwealth's policy argument must fail; such a challenge is
      more appropriately directed to the legislature.

Savage, 695 A.2d at 823-824 (footnote omitted).

      Further, our Statutory Construction Act provides that “[w]hen the

words of the statute are clear and free from all ambiguity, the letter of it is

not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. §



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1921(b); see Commonwealth v. Valle-Velez, 995 A.2d 1264, 1270 (Pa.

Super. 2010) (declining “to look beyond the express statutory language at

the policy issues surrounding the spousal privilege statute” found in related

Section 5913).

      We recently explained:

             We recognize that “[c]ommunications between spouses are
      presumed to be confidential, and the party opposing application
      of the rule disqualifying such testimony bears the burden of
      overcoming this presumption.” Commonwealth v. Burrows, 779
      A.2d 509, 514 (Pa.Super. 2001) (internal citation omitted). The
      privilege under 42 Pa.C.S.A. § 5914 prevents a spouse from
      testifying against the declarant-defendant spouse regarding “any
      communications which were confidential when made and which
      were made during the marital relationship.” Commonwealth v.
      May, 540 Pa. 237, 656 A.2d 1335, 1341–1342 (1995) (footnote
      omitted) (emphasis supplied).         Our Supreme Court has
      explained that where the challenged spousal communication was
      divulged by the declarant-defendant to third parties, the
      statement “does not qualify as [a] confidential communication.”
      Commonwealth v. Hancharik, 534 Pa. 435, 633 A.2d 1074, 1077
      (1993).

                                   ***

            Further, our Supreme Court explained that “[t]he Court in
      May recognized that the question of what is a ‘confidential’
      communication turns in part on the reasonable expectation the
      declarant has that the communication will remain confidential.”
      Commonwealth v. Spetzer, 572 Pa. 17, 813 A.2d 707, 722
      (2002).    The Spetzer court indicated that “a husband who
      describes to his wife his previous rape of her child ... can have
      no reasonable expectation under Pennsylvania law that that
      communication will remain confidential.” Id. []

Commonwealth v. G.Y., 63 A.3d 259, 267 (Pa. Super. 2013) (emphasis in

original).



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      In G.Y., we reversed the PCRA court’s finding of privilege related to

the marital communication between appellant and his spouse. In finding the

communication was not privileged, we emphasized that appellant had

previously disclosed orally, in writing, and in a videotaped statement, the

same information to third parties, including law enforcement. Accordingly,

we   determined    that   appellant’s   statement      to   his    spouse     was   “not

‘confidential   when   made,’    nor    d[id]   it   ‘qualify     as   [a]   confidential

communication.’”    Id.   Moreover, we observed that appellant had testified

regarding the same challenged testimony, thus waiving any privilege

regarding the testimony. Id. at 267-268.

      Here, the Commonwealth, as the party opposing the application of the

privilege, has not met the burden of overcoming the presumption that Davis’

communications with his wife, which occurred outside the presence of third

parties, were confidential.     Davis’ statement to Walton that “we got into

some shit last night, Nic,” which was “ bad … [r]eal bad,” along with Davis’

responses to Walton’s questions regarding the burglary and homeowner’s

death, where Davis admitted his involvement in the crimes, Marsh’s shooting

of Ms. Paul, and Davis’ retrieval of Marsh from the Paul home, were

statements “imbued with an aura of a sharing disclosure precipitated largely

due to the closeness spouses share.” See Trial Court Opinion, 3/25/14, at

2-3, n.1; see also Commonwealth v. Luster, 71 A.3d 1029, 1046 (Pa.

Super. 2013) (en banc) (citation omitted). Davis’ statements were uttered

during the marital relationship, were confidential when made, had not been

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previously divulged by Davis, and were not reasonably anticipated by him to

be divulged. Davis did not waive the confidentiality of the statements, nor

did he testify about them. Accordingly, Section 5914 applies.

      Davis concedes that “the testimony of [Walton] as to what she

witnessed and as to any conversations she had with her husband in the

presence of [Marsh] are admissible.”           Davis’ Brief at 9.     Davis also

acknowledged:

      In this case, [Pennsylvania law] would permit the admission of
      [Walton’s] testimony that she went to 51st Street [in
      Philadelphia] on the night of the homicide, saw [Davis] arrive in
      a vehicle and arrive at that location with [Marsh] who was shot
      in the foot. It would also permit her testimony that she drove
      the three of them to a hospital in Maryland where Marsh was left
      to be treated.

Davis’ Memorandum of Law in Support of Motion to Quash Transcripts,

3/7/13, at 8 (unnumbered). We agree. Section 5914 is not applicable to

Walton’s testimony that she was asleep when she received a call from Davis

seeking transportation for Davis and Marsh to a hospital.            See Luster,

supra, at 1045-1046 (reiterating that to be privileged, a communication

must be of a confidential nature).          Neither does Section 5914 protect

Walton’s observations that as she arrived to pick up Davis and Marsh, she

saw   Davis   alight   from   a   vehicle    with   an   injured   Marsh.   See

Commonwealth v. McBurrows, 779 A.2d 509, 519 (Pa. Super. 2001)

(“Pennsylvania law does not extend the husband-wife privilege set forth in §

5914 to one spouse’s observance of the act of another spouse”). Likewise,



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Section 5914 does not render inadmissible the conversations Davis and

Walton had with, and in the presence of, Marsh, on their drive to Maryland,

during which a false robbery story was concocted to explain Marsh’s injuries.

See Commonwealth v. Mattison, 82 A.3d 386, 394 (Pa. 2013) (internal

citation omitted) (“As a general matter, the presence of third parties at the

time the communication is made negates the confidential nature of the

communication.”).

      In sum, consonant with Pennsylvania statutory construction principles

and existing jurisprudence, the trial court correctly applied 42 Pa.C.S. §

5914 to suppress Davis’ confidential communications to his wife which

occurred outside the presence of third parties. Therefore, we affirm the trial

court’s suppression order.

      Order affirmed. Jurisdiction relinquished. Case remanded for further

proceedings consistent with our disposition.

      P.J. Gantman, P.J.E. Bender, and Judges Donohue, Shogan, Lazarus,

Mundy and Stabile join the Opinion.

      Judge Panella concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/29/2015


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