                             [J-97A&B-2017][M.O. - Wecht, J.]
                       IN THE SUPREME COURT OF PENNSYLVANIA
                                    EASTERN DISTRICT



COMMONWEALTH OF PENNSYLVANIA,                    :   Nos. 722 & 723 CAP
                                                 :
                                                 :   Appeal from the Order dated 1/6/16 and
                  Appellee/Cross-Appellant       :   entered on the docket on 1/12/16 in the
                                                 :   Court of Common Pleas, Clearfield
                                                 :   County, Criminal Division at No. CP-17-
                                                 :   0000062-1990
                  v.                             :
                                                 :
                                                 :
DANIEL CRISPELL,                                 :
                                                 :
                  Appellant/Cross-Appellee       :   SUBMITTED: December 6, 2017


                        CONCURRING AND DISSENTING OPINION


CHIEF JUSTICE SAYLOR                                        DECIDED: September 21, 2018


       I join Parts I, II(A) and (D), and III of the majority opinion, concur in the result as

to Part II(B), and respectfully dissent as to Part II(C).

       With reference to Part II(B), I have difficulty with the majority’s conclusion that

trial counsel could have had no reasonable strategy for failing to adduce evidence that

Christopher Weatherill had scratches on his arms and chest at the time of his arrest.

See Majority Opinion, slip op. at 14-15. Along these lines, the majority itself ultimately

reasons that “the inference that Crispell would have asked the jury to draw from

Weatherill’s scratches was inconsistent with and undermined by other uncontradicted
evidence of record,” id. at 22-23.1 Notably, moreover, trial counsel relied upon just such

reasoning, at the PCRA hearing, in defending his stewardship. See, e.g., N.T., March

31, 2014, at 101-102 (reflecting counsel’s explanation, relative to evidence of the

scratches, that “I don’t know what use this would have been,” inter alia, in light of his

understanding that the scrapings from fingernail clippings from the victim did not contain

Weatherill’s DNA). I know of no authority requiring counsel to potentially undermine the

credibility of the defense by pursuing every possibly favorable inference, no matter how

weak or unsubstantiated.2

      Part II(C) concerns trial counsel’s stewardship in failing to seek to exclude (or at

least secure a limiting instruction relative to) evidence of a subsequent attempted purse


1  While I agree with this reasoning, I note the apparent tension between it and the
majority’s initial assessment that the evidence concerning Weatherill’s scratches “might
tip the balance in favor of the defendant” and supports a “reasonable inference that, as
Crispell testified, Weatherill was the killer.” Majority Opinion, slip op. at 14-15.

2 In this regard, I observe that Appellant related in his statement to police, which was
presented to the jury, that he and Weatherill carried the body of the victim through the
woods, that Weatherill tripped on a rock and fell to the ground, and that a window in the
car the pair was driving was shattered in an accident. In other words, there were
multiple alternative explanations for the scratches.

In terms of the majority’s prejudice assessment, to the degree that the majority relies on
the testimony of jailhouse informant Donald Skinner, see Majority Opinion, slip op. at 22
(positing that “it comes down to Skinner’s testimony alone”), I take this opportunity to
note my agreement with those jurisdictions which have found such testimony to be
“inherently suspect.” State v. Diaz, 25 A.3d 594, 606 (Conn. 2011) (discussing “the
ease with which such testimony can be fabricated, the difficulty in subjecting witnesses
who give such testimony to meaningful cross-examination and the great weight that
juries tend to give to confession evidence”); see also State v. Marshall, 882 N.W.2d 68,
81–83 (Iowa 2016) (explaining that “[t]he problem of proof, along with questions of
reliability, have given rise to requiring some corroboration of jailhouse informant
testimony to support a conviction in at least eighteen states”). See generally Jessica A.
Roth, Informant Witnesses and the Risk of Wrongful Convictions, 53 AM. CRIM. L. REV.
737, 765-84 (2016).


                         [J-97A&B-2017][M.O. – Wecht, J.] - 2
snatching from an elderly woman, resulting in her falling to the ground. The majority

concludes that trial counsel’s dereliction in this regard “aided the defense” by permitting

Appellant to further contextualize his claim that he acted under Weatherill’s influence

and control. Majority Opinion, slip op. at 27.

       Respectfully, I find this reasoning to be unpersuasive. Regardless of Weatherill’s

involvement, the evidence was that Appellant, by his own action, engaged in assertive

criminal conduct that resulted in potential injury to an elderly woman.         From this

dangerous altercation, the jury might infer that Appellant had little regard for the

wellbeing of others, providing an otherwise impermissible character-based reason

bolstering the Commonwealth’s theory that Appellant killed Mrs. Brown.                  Cf.

Commonwealth v. Billa, 521 Pa. 168, 179–80, 555 A.2d 835, 841–42 (1989) (explaining

that cautionary instructions are generally required, in connection with the admission of

other-bad-acts evidence, precisely to discourage such impermissible inferences).

Significantly, moreover, Appellant had ample opportunity otherwise to explain that

Weatherill was the leader and the killer. And it is important to note that, as a self-

admitted accomplice to the robberies of Mrs. Brown and the elderly woman, Appellant’s

testimony relative to Weatherill’s involvement would likely cause circumspection on the

jurors’ part in all events. See, e.g., Commonwealth v. Bubna, 357 Pa. 51, 66, 53 A.2d

104, 112 (1947) (“It is a matter of general knowledge that partners in crime are likely

when apprehended to cast the chief blame on each other.”).3


3 The Bubna Court went on to explain that “[i]t is also equally well known that partners in
crime sometimes do tell the truth as to the commission of the crime.” Id. The fact that a
defendant may be telling the truth, however, does not diminish the likelihood that jurors
will accord lesser weight to the testimony of one who is unable to credibly deny his
involvement in a criminal episode but seeks to blame others where the proof is not
ironclad.



                          [J-97A&B-2017][M.O. – Wecht, J.] - 3
       At bottom, it seems to me that the risk that the jurors would draw negative

implications from the purse-snatching incident far outweighs the “aid” the majority

attributes to the evidence. In this regard, it is noteworthy that trial counsel did not

ascribe, in any fashion, to having sought to pursue such purported advantage.

       Particularly given the majority’s explanation that a jailhouse informant’s testimony

is the sole evidence implicating Appellant (as opposed to Weatherill) as the killer,

Majority Opinion, slip op. at 22, I cannot agree with its conclusion that trial counsel’s

failure to seek the exclusion of the other-bad-acts evidence, or at least to secure a

limiting instruction, was non-prejudicial. Accord supra note 2. Thus, I would award a

new trial.




                         [J-97A&B-2017][M.O. – Wecht, J.] - 4
