J-A20044-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
                   Appellant              :
                                          :
            v.                            :
                                          :
EDWARD YALE,                              :
                                          :
                   Appellee               :            No. 178 EDA 2014

              Appeal from the Order entered on January 8, 2014
               in the Court of Common Pleas of Monroe County,
                Criminal Division, No. CP-45-CR-0001540-2013

BEFORE: FORD ELLIOTT, P.J.E., MUNDY and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED DECEMBER 23, 2014

      The Commonwealth of Pennsylvania appeals from the Order granting

Edward Yale’s (“Yale”) Motion In Limine precluding the introduction of

statements and writings of the victim, Joan Yale (“Joan”), and potentially

limiting the photographs of the crime scene. We affirm in part and reverse

in part.

      On March 22, 2001, Joan died in the residence she shared with her

husband, Yale.     Yale called the police and told them that Joan had fallen

down the steps.       The police observed that Joan had received deep

lacerations, bruising, and scrapes to her face. Yale told the police that only

he and Joan were present in the residence at the time of her death.

      In   April   2013,   a   Monroe   County    Investigating   Grand   Jury

recommended that criminal charges be filed against Yale.            Yale was
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subsequently charged with criminal homicide and tampering with physical

evidence.1 On September 24, 2013, Yale filed an Omnibus Pre-trial Motion.

As part of the Motion,2 Yale included a Motion In Limine seeking to prohibit

the Commonwealth from introducing statements made by Joan to others

about her relationship with Yale and a written statement obtained from

Joan’s purse that detailed problems in her relationship with Yale.          On

November 8, 2013, the Commonwealth filed a Motion In Limine requesting

the introduction of photographs of the crime scene. The trial court held a

hearing on the pre-trial Motions. Subsequently, the trial court granted Yale’s

Motion In Limine, preventing the introduction of Joan’s letter and various

out-of-court statements. However, the trial court also found that where the

witnesses were present and heard Joan and Yale’s arguments and any other

statements made by Yale, such testimony was admissible.        The trial court

also denied as moot the Commonwealth’s Motion, as the parties had reached

a stipulation as to the admissibility of the photographs. However, the trial

court indicated that it would disallow any inflammatory or cumulative

photographs.

        The Commonwealth filed a timely Notice of Appeal and a Statement in




1
    See 18 Pa.C.S.A. §§ 2501(a); 4910(1).
2
  Yale raised various other claims in his Omnibus Pre-trial Motion that are
not relevant to this appeal. The trial court denied in part and granted in part
Yale’s remaining claims in his Omnibus Pre-Trial Motion.


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compliance    with   Pennsylvania   Rule   of   Appellate   Procedure   311(D).3

Thereafter, the Commonwealth filed a court-ordered Pennsylvania Rule of

Appellate Procedure 1925(b) Concise Statement. The trial court issued an

Opinion.

     On appeal, the Commonwealth raises the following questions for our

review:

     1. Did the lower court abuse its discretion when it precluded
        from evidence [Joan’s] expressions of fear of [Yale], her
        intention to end their relationship, [and] expressions
        manifesting the deterioration of the relationship, where that
        evidence shows the presence of ill-will, a possible motive for
        the killing, an escalation of discord, and rebuts the defense of
        accident?

     2. Did the lower court commit error in disregarding a stipulation
        of counsel concerning the introduction of photographs of
        [Joan] and [the] crime scene in a homicide trial by deciding
        that it may still sua sponte preclude photographs if it
        determines that they are inflammatory or cumulative?

Brief for the Commonwealth at 11.

     In its first claim, the Commonwealth contends that the trial court

should have denied Yale’s Motion In Limine as the statements at issue

demonstrate the course of events leading to Joan’s death.        Id. at 14, 28.

The Commonwealth points out that the statements were relevant to its

theory of the case because Yale denied he killed Joan, claimed that Joan died


3
  Rule 311(D) states that “[i]n a criminal case, under the circumstances
provided by law, the Commonwealth may take an appeal as of right from an
order that does not end the entire case where the Commonwealth certifies in
the notice of appeal that the order will terminate or substantially handicap
the prosecution.” Pa.R.A.P. 311(D).


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by an accident and denied the existence of marital discord between the

parties.   Id. at 14, 25.    The Commonwealth argues that while the

statements constitute hearsay, they are admissible under the state of mind

exception to the hearsay rule at Pennsylvania Rule of Evidence 803(3). Id.

at 15-23, 25-28.4      The Commonwealth specifically argues that the

statements regarding (1) Joan’s refusal of Yale’s demands to have his name

put on the deed of the home and on certain certificates of deposit (“CD”)

demonstrated proof of motive; (2) several statements made by Joan

evidenced her fear of Yale; and (3) and multiple statements by Joan showing

the escalation of marital problems and her desire to live apart from Yale

were admissible under Rule 803(3). Id. at 15-23, 25-28; see also id. at 15

4
  The Commonwealth asserts that Joan’s refusal to put Yale’s name on the
deed of the home or other documents could be admitted under the present
sense exception to the hearsay rule at Pa.R.E. 803(1). See Brief for the
Commonwealth at 24 (wherein the Commonwealth cites to specific
statements made by Joan to her daughter-in-law, Yvette Mary Litts
(“Yvette”), and her son, Ronald Litts (“Ronald”)).             However, the
Commonwealth does not provide any pertinent analysis or cite to any
relevant case law to support its assertion. See Pa.R.A.P. 2119(a) (stating
that argument must be supported by pertinent analysis and citation to
relevant law). Thus, we conclude that this assertion is waived on appeal.
Furthermore, even if the assertion was not waived, the Commonwealth is
not entitled to relief. Indeed, the statements that the Commonwealth seeks
to admit under the present sense impression exception were statements
about past events, without any indication of how much time had elapsed
between the statements and the occurrence, and did not exemplify any
impressions that Joan may have had at the time of the occurrence in
question. See Pa.R.E. 803(1) (stating that a present sense impression is a
statement describing an event made while the declarant was perceiving the
event or immediately thereafter); see also Commonwealth v. Stephens,
74 A.3d 1034, 1037 (Pa. Super. 2013) (stating that little time or no time
must exist between the occurrence and the statement, which operates to
negate the likelihood of a deliberate or conscious misrepresentation).


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(arguing that the statements “allow the Commonwealth to point to a

possible motive for the killing, thus, ruling out accident and at the same time

helping to establish intent.”).       The Commonwealth claims that the

statements at issue are not being offered for the truth of the matter

asserted, but rather to demonstrate Yale’s motive to do Joan harm and rebut

the defense of accident by evidencing Joan’s intent to terminate the

relationship and her failure to acquiesce to Yale’s demands. Id. at 28. The

Commonwealth cites to numerous cases to support its argument, but

specifically argues that the trial court’s reliance upon Commonwealth v.

Thornton, 431 A.2d 248 (Pa. 1981), was misplaced, and that the trial court

should have relied upon Commonwealth v. Sneeringer, 668 A.2d 1167

(Pa. Super. 1995), in admitting the evidence.              See Brief for the

Commonwealth at 14, 27-28.

      Our standard of review is as follows:

      When ruling on a trial court’s decision to grant or deny a motion
      in limine, we apply an evidentiary abuse of discretion standard of
      review. The admission of evidence is committed to the sound
      discretion of the trial court, and a trial court’s ruling regarding
      the admission of evidence will not be disturbed on appeal unless
      that ruling reflects manifest unreasonableness, or partiality,
      prejudice, bias, or ill-will, or such lack of support to be clearly
      erroneous.

Commonwealth v. Moser, 999 A.2d 602, 605 (Pa. Super. 2010) (citation

omitted).

      Hearsay “is a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the


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matter asserted.”   Pa.R.E. 801(c).    Hearsay “is not admissible except as

provided by other rules prescribed by the Pennsylvania Supreme Court, or

by statute.” Pa.R.E. 802. Relevantly, the Rules of Evidence provide a “state

of mind” exception to the hearsay rule, which states the following:

     (3) Then–Existing Mental, Emotional, or Physical
     Condition. 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).5

     Pursuant to the state of mind hearsay exception, where a
     declarant’s out-of-court statements demonstrate her state of
     mind, are made in a natural manner, and are material and
     relevant, they are admissible pursuant to the exception. Out-of-
     court declarations that fall within the state of mind hearsay
     exception are still subject to general evidentiary rules governing
     competency and relevancy. Accordingly, whatever purpose the
     statement is offered for, be it to show the declarant’s intention,
     familiarity, or sanity, that purpose must be a “factor in issue,”
     that is, relevant. Evidence is relevant if it logically tends to
     establish a material fact in the case, if it tends to make a fact at
     issue more or less probable, or if it supports a reasonable
     inference or presumption regarding the existence of a material
     fact.

Commonwealth v. Laich, 777 A.2d 1057, 1060-61 (Pa. 2001) (citations

omitted); see also Commonwealth v. Moore, 937 A.2d 1062, 1070 (Pa.

2007) (stating that state of mind evidence is relevant where an issue of self-

5
  This version of the Rule took effect on March 18, 2013. “The rule changes
result in no substantive change and are intended to conform the
Pennsylvania rules, which reference the federal rules of evidence, with the
stylistic changes made to the federal rules[.]” Schmalz v. Manufacturers
& Traders Trust Co., 67 A.3d 800, 804 n.4 (Pa. Super. 2013).


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defense,     suicide   or   accidental    death   is   raised   by   the   defendant);

Commonwealth v. Luster, 71 A.3d 1029, 1041 (Pa. Super. 2013) (en

banc) (stating that out-of-court statements by homicide victims are

generally admissible        under   the   state   of mind exception “when          the

statements are relevant for some other purpose, such as proof of motive or

malice.”).

      This Court recently recognized and addressed the conflict between the

decisions in Thornton and Sneeringer as follows:

      In Thornton, the [appellant], charged with homicide, admitted
      that he shot and killed the victim but claimed self-defense and
      asserted that he had been provoked by the victim. Thornton,
      431 A.2d at 249. The night before the killing, the police arrested
      the victim and found that he was in possession of a gun. When
      asked why he was carrying a gun, the victim responded that he
      was carrying it for protection because “the Thornton brothers
      were after him.” Id. at 251. Over the defendant’s hearsay
      objection, the trial court permitted the officer’s testimony. Our
      Supreme Court ultimately held that the trial court erroneously
      admitted the victim’s statement under the “state of mind”
      exception:

        The Commonwealth argues that [the victim’s] declaration
        that he wanted protection because “the Thornton brothers
        were after him” was admissible to establish fear on the part
        of [the victim] and thus comes within the “state of mind”
        exception to the rule against hearsay. It is true that the
        declaration perhaps tends to establish that the victim … was
        fearful of the Thorntons. However, the victim’s state of
        mind was not a matter in issue in the case.           It was
        appellant’s state of mind, not that of the victim, which was
        material to establish the degree of guilt, if any, on the
        charge of criminal homicide.

        Only when the declaration is considered for the truth of the
        matter asserted, that appellant and his brother “were after”
        the victim, does the declaration become relevant, that is,


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       both material to and probative of appellant’s intent to kill.
       However, when considered for its substantive truth, the
       declaration, although relevant, is incompetent and hence
       inadmissible because it is hearsay not within any exception.
       Thus appellant’s objection to admission of the declaration
       should have been sustained and the testimony excluded.

     Id. (internal citation omitted).

     However, in [Sneeringer,] this Court held that a lower court did
     not err when it admitted hearsay testimony concerning a victim’s
     statement that she intended to end her relationship with the
     defendant accused of killing her. Applying the “state of mind”
     exception, this Court reasoned as follows:

       The fact that the victim intended to end her relationship
       with appellant made it more probable that she did end the
       relationship, than if she had no such intention. Moreover, if
       the victim did end her relationship with appellant, then such
       a factor is probative of appellant’s motive. The mere fact
       that the victim expressed an intent to end her relationship
       with appellant does not establish that she did in fact do so.
       It does, however, allow the jury to infer appellant’s motive
       from such a revelation, and is properly considered in
       resolving the question of whether appellant killed the victim.

     Sneeringer, 668 A.2d at 1171–72.

     In Levanduski, an en banc panel of this Court recognized an
     apparent conflict between our Supreme Court’s ruling in
     Thornton and the panel decision of this Court in Sneeringer in
     their application of the “state of mind” exception. The “state of
     mind” exception at issue in Levanduski involved a letter,
     written by the victim, [Mr.] Sandt, describing several letters he
     found in which the appellant (the victim’s common law wife) had
     written and received from a man ([Mr.] Fransen) that he
     suspected of being his wife’s lover.        [Mr.] Sandt’s letter
     described that in one of the appellant’s letters, she discussed
     getting “rid of [Sandt] so [the appellant and her lover] could be
     together.” Levanduski, 907 A.2d at 9. Furthermore,

       [i]n his letter, Mr. Sandt wrote about the relationship
       between [a]ppellant and Mr. Fransen and referred to:
       [a]ppellant’s allegations of spousal abuse; [a]ppellant’s


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        desire to further her relationship with Mr. Fransen; Mr.
        Sandt’s own demand for his share of the marital property;
        and[] the possible nexus between [a]ppellant and Mr.
        Fransen, and Mr. Sandt’s missing .22 caliber revolver.

      Id. at 18.

      … [T]he Levanduski Court did not reject the Sneeringer
      approach outright, but instead distinguished itself on the facts
      and, consequently, applied the general rule of Thornton. In
      fact, the Levanduski Court noted an approach similar to that
      applied in Sneeringer had been applied by our Supreme Court
      in Commonwealth v. Stallworth, 566 Pa. 349, 781 A.2d 110,
      118 (2001).[6] However, the Levanduski [C]ourt refused to
      apply the Sneeringer standard because:

        The letter in the instant case does not generate the same
        probative value as the victims’ statements in the cited cases
        [(Sneeringer and Stallworth)]. Here, Mr. Sandt’s letter is
        mostly his commentary on the relationship between the
        co[-]defendants. In fact, the trial court admitted the letter
        as evidence of the relationship between [a]ppellant and Mr.
        Fransen. On the other hand, the letter conveys a very
        mixed message regarding the state of the relationship
        between [a]ppellant and Mr. Sandt, vacillating between
        possible separation and promises of reconciliation.
        Significantly, the letter does not contain any threats made

6
    In Stallworth, the Pennsylvania Supreme Court addressed the
admissibility of out-of-court statements in a situation where the defendant
and the decedent were in a domestic relationship, and the deceased victim
had, prior to her death, filed a protection from abuse (“PFA”) petition against
the defendant. Stallworth, 781 A.2d at 117. The Court affirmed the
decision of the trial court to admit statements contained in the petition on
the basis that the challenged statements were not hearsay because they
were not being offered to prove the truth of their content. Id. at 118. The
Supreme Court specifically held that, while the victim’s statements contained
in the PFA petition could be offered as evidence of the victim’s state of mind
regarding the relationship and “the malice and/or ill-will she perceived,” the
statements could not be admitted as substantive evidence that the appellant
committed the acts described in the petition. Id. In so concluding, the
Court noted that “an out-of court statement by a murder victim may be
admitted to establish the motive of the defendant when those statements
are not offered to prove the truth of the matter asserted.” Id.


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        on Mr. Sandt’s life, by either [a]ppellant or Mr. Fransen. At
        most, the letter represents pure conjecture well-seasoned
        with romantic hyperbole.

      Levanduski, 907 A.2d at 20.

                                     ***

      To the extent Sneeringer is still viable, Levanduski suggests a
      case-by-case approach whereby Thornton stands as the general
      rule under which a limited exception may exist when the
      inference generated by admission of the hearsay statement is
      strong and highly probative.

Commonwealth v. Green, 76 A.3d 575, 579-81 (Pa. Super. 2013)

(footnote added).

      In Green, the trial court admitted statements by a shooting victim to

two witnesses under the state of mind exception to the hearsay rule. Id. at

579. According to the testimony of the witnesses, the victim stated that she

“needed to get away” from the appellant, that she was afraid of the

appellant, and that she did not want to “go with him” anymore. Id. This

Court ruled as follows:

      Considering the statements as evidence of [a]ppellant’s motive,
      it appears impossible to demonstrate such an inference without
      accepting the statements for the truth of the matter asserted.
      To be relevant as to [a]ppellant’s motive, we would have to
      accept that the [v]ictim was fearful of [a]ppellant and that she
      was attempting to end their relationship.         To accept those
      conclusions as the basis for [a]ppellant’s motive is to accept the
      literal “truth” of the hearsay statements. If the [v]ictim was not,
      in fact, fearful of [a]ppellant and in the process of ending their
      relationship, then there was nothing about the hearsay
      statements that provided evidence of motive.             Put more
      succinctly, it is only when the admitted hearsay statements are
      taken as truthful that they provide competent evidence of
      motive. Thornton rejected the admission of such statements


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     under the “state of mind” exception to the hearsay rule. Either
     these statements were relevant but inadmissible as hearsay
     without an applicable exception, or they were not hearsay, in
     which case they were irrelevant.

Id. at 581.   Thus, this Court concluded that the trial court abused its

discretion in admitting the hearsay statements under the “state of mind”

exception. Id. at 582.

     However, we note that in reaching its decision, the Green Court did

not consider the other decisions of this Court and the Supreme Court that

address the state of mind exception.     In   Commonwealth      v.   Collins,

703 A.2d 418 (Pa. 1997), the trial court permitted out-of-court statements

made by the homicide victim that she intended to meet with the defendant

and that she was concerned that the defendant would harm her if she

hindered his illegal activities. Collins, 703 A.2d at 425. The Supreme Court

held that the statements were properly admitted as they provided

circumstantial evidence that the victim did meet with the defendant and

permitted the jury to conclude that the defendant had the opportunity to kill

the victim. Id.

     In Commonwealth v. Chandler, 721 A.2d 1040 (Pa. 1998), the trial

court admitted into evidence “eyewitness observations of [the victim’s]

family and co-workers, which were not hearsay, and ... statements [the

victim] made concerning her negative feelings about [the defendant] and




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her relationship with him.”7    Chandler, 721 A.2d at 1045.        Our Supreme

Court concluded that the victim’s “statements were admissible under the

‘state of mind’ exception to the hearsay rule because [the victim’s] opinion

of [the defendant] and her marriage to him went to the presence of ill[-]will,

malice, or motive for the killing.” Id.

      Additionally, in Commonwealth v. Fletcher, 750 A.2d 261 (Pa.

2000), abrogated on other grounds by Commonwealth v. Freeman, 827

A.2d 385, 400 (Pa. 2003), the Supreme Court addressed, in the context of

an ineffectiveness of counsel claim, a homicide victim’s out-of-court

statement that he had smoked drugs belonging to the defendant. Fletcher,

750 A.2d at 275-76. The Supreme Court held that the victim’s statement

established his state of mind regarding his relationship with defendant and

was thus admissible under the state of mind hearsay exception to establish

the presence of ill-will, malice, or motive for the killing. Id. at 276.

      In Commonwealth v. Puksar, 740 A.2d 219 (Pa. 1999), the disputed

evidence involved two conversations that had taken place between the

defendant and his brother, who was one of the deceased victims of the

homicides.    Puksar, 740 A.2d at 224.           In each instance, a witness

overheard the conversations, one of which was a dispute over model trains 8


7
  The Supreme Court does not set forth the specific statements made by the
victim with regard to her negative feelings toward the defendant.
8
 Scattered boxes of model trains were found around the victim. Puksar,
740 A.2d at 223.


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and the other consisted of the parties yelling at each other about an

unidentified matter.   Id.   The Supreme Court held that testimony was

admissible as non-hearsay testimony because the truth of the content of the

conversations was not at issue. Id. at 225. The Supreme Court further held

that the conversations, which were apparently heated arguments, evinced

“ill-will between the brothers” regardless of the truth of what was said by

either speaker. Id.

      In Luster, supra, statements by a murder victim to her friends that

she was afraid of appellant, that appellant “was going to do something real

bad to her,” and that appellant was “trying to kill” her were introduced at

trial. Luster, 71 A.3d at 1041. This Court, sitting en banc, recognized that

a victim’s state of mind is only admissible where the victim’s state of mind is

a factor at issue in the case. Id. This Court concluded that the statements

were admissible under the state of mind exception to the hearsay rule

because the appellant had denied responsibility of the murder and thus, the

statements evidenced appellant’s ill-will and malice toward the victim. Id.

at 1042; see also Commonwealth v. Kunkle, 79 A.3d 1173, 1185 (Pa.

Super. 2013) (concluding that the admission of hearsay statements by the

decedent that he was scared of appellant and that appellant would be to

blame if decedent died was proper under Pa.R.E. 803(3) and Luster, as the

statements reflected appellant’s ill-will and malice toward decedent).




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     However, not all of the recent Pennsylvania Court decisions favor the

admissibility of these out-of-court statements.      In Commonwealth v.

Laich, 777 A.2d 1057 (Pa. 2001), the defendant was prosecuted for the

homicides of his former girlfriend and her paramour.      Id. at 1059.    The

defendant admitted to the killings, but sought to refute the Commonwealth’s

claim of murder in the first degree and instead sought a verdict of voluntary

manslaughter. Id. at 1060. The trial court permitted the Commonwealth to

introduce testimony from a witness regarding the victim’s statement to her

that the defendant had threatened that “if he couldn’t have her, [and] if he

ever caught her with another man, that he would kill them both.” Id. The

Laich Court held that the trial court erred in admitting this evidence, as the

state of the victim’s relationship with the defendant was irrelevant to his

degree of guilt. Id. at 1062. The Court pointed out that defendant admitted

to the murders, but argued that he had only done so with provocation. Id.

In light of this defense, it was the defendant’s state of mind at the time of

the killings that was relevant as to whether he committed the crimes with

premeditation or whether, as he claims, he was acting with a “sudden and

intense passion resulting from serious provocation.”    Id.   Accordingly, the

trial court erred in allowing the out-of-court statements because such

testimony was not relevant to the case. Id.

     In Moore, a capital case, the Commonwealth sought to introduce a

homicide victim’s statements to his father, sister, and friend regarding the



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ongoing bullying by appellant “under the state of mind exception to the

hearsay rule in order to establish the presence of ill[-]will, malice, or motive

for the murder.” Moore, 937 A.2d at 1070. The appellant argued that the

testimony was inadmissible under the state of mind exception.         Id.   The

appellant specifically argued that the statements were irrelevant to any issue

in the case as the Commonwealth had to prove that the killing was willful,

deliberate, and pre-meditated.    Id.     The appellant claimed that it was his

state of mind, rather than the victim’s, that was relevant. Id. Further, the

appellant did not present a defense of self-defense or accident, which would

implicate the victim’s state of mind, but instead sought to establish

reasonable doubt as to the identity of the shooter. Id. The Supreme Court

reiterated that while the statements could be admissible as circumstantial

evidence of the victim’s fear of appellant, they could not be offered for the

truth of the matters contained therein.      Id. at 1072.   The Supreme Court

held that because the Commonwealth utilized the truth of the statements as

substantive evidence at trial, the trial court erred in admitting the hearsay




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statements. Id. at 1072-73.9

      While we acknowledge apparent conflicting decisions applying the

state of mind exception,10 the case law confirms that an out-of court

statement by a homicide victim is admissible under the state of mind

exception of the hearsay rule as long as it is relevant and probative of some




9
  We note that the Moore Court also stated that it did not expressly overrule
the Fletcher decision, but that “the existing and subsequent Stallworth
and Laich decisions already curtail an expansive reading of Fletcher’s
reasoning.” Moore, 937 A.2d at 1073 n.7; see also Commonwealth v.
Fletcher, 986 A.2d 759, 784 (Pa. 2009) (stating that the Supreme Court
“has placed limits on the scope of the ‘state of mind’ exception since
Fletcher [] was decided, and held that a victim’s state of mind cannot be
introduced as substantive evidence that a defendant acted in conformity
therewith[.]”).    The Moore Court noted that “Fletcher’s reasoning is
explicitly directed to the use of victim state of mind evidence to establish the
victim’s state of mind.” Moore, 937 A.2d at 1073 n.7.
10
   This case may provide the Supreme Court of Pennsylvania, which has not
recently addressed the admissibility of out-of-court statements by a
homicide victim based upon the state of mind exception, with the
opportunity to further clarify this exception, as it is a pre-trial appeal and
involves numerous statements.


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material issue in the case.11       Laich, 777 A.2d at 1060-61; accord

Levanduski, 907 A.2d at 15-16; see also Moore, 937 A.2d at 1070.             A

declarant’s state of mind is relevant if it is an element of a charge, claim or

defense such as self-defense, accident or suicide, and the statement is

probative on the question of the victim’s state of mind. Moore, 937 A.2d at




11
  The Commonwealth also cites to Commonwealth v. Ulatoski, 371 A.2d
186 (Pa. 1977), for the following:

      [E]vidence concerning the previous relations between a
      defendant and a homicide victim is relevant and admissible for
      the purpose of proving ill[-]will, motive or malice. Evidence of
      prior occurrences in which the accused threatened, assaulted, or
      quarrelled with the decedent may be admissible for this purpose.
      This principle applies when the decedent was the spouse of the
      accused. Thus, evidence concerning the nature of the marital
      relationship is admissible for the purpose of proving ill[-]will,
      motive or malice. This includes, in particular, evidence that the
      accused physically abused his or her spouse.

Id. at 190. However, the Ulatoski Court further stated that “[t]estimony
concerning the marital relationship between a defendant and decedent, like
any other evidence, is subject to the general evidentiary rules governing
competency and relevancy.” Id. at 191. “Hence, Ulatoski did not create
an exception to the hearsay rule; nor did it contemplate that testimony
regarding marital relationships in cases such as this would be subject to a
relaxed standard of admissibility.” Commonwealth v. Myers, 609 A.2d
162, 165 (Pa. 1992). Thus, despite the holding in Ulatoski, we must
determine whether the out-of-court statements in this case are admissible
under the state of mind exception to the hearsay rule.


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1070.12 A declarant’s out-of-court statement that he intends to perform a

particular act in the future may also be relevant and admissible under this

exception to establish that the declarant acted in conformity with his/her

expressed intention.   Collins, 703 A.2d at 425; Sneeringer, 668 A.2d at

1171-72. Moreover, state of mind evidence is admissible when it explains

the victim’s state of mind regarding the relationship and the malice and/or

ill-will that the victim perceived. Stallworth, 781 A.2d at 118; Kunkle, 79

A.3d at 1185; Luster, 71 A.3d at 1041-42.13         Furthermore, eyewitness

observations of arguments between the victim and defendant are admissible.

See Puksar, 740 A.2d at 224; Chandler, 721 A.2d at 1045. Significantly,

12
   We note that the Moore decision seems to contradict the Thornton
decision in that Moore allows for the admission of state of mind hearsay
testimony where the defendant argues self-defense. Compare Moore, 937
A.2d at 1070 (stating that state of mind evidence is relevant when
defendant argues self-defense), with Thornton, 431 A.2d at 251 (stating
that where appellant argued self-defense, it was the appellant’s state of
mind, not the victim’s, which was material to establish the degree of guilt on
the charge of criminal homicide). However, Moore did not overrule the
Thornton ruling, and Green, while not citing to Moore, confirms the
continued viability of the Thornton decision.
13
   The Green decision seems to contradict the Luster decision with regard
to the victims’ statements of being afraid of the respective appellants.
However, as Green does not cite to Luster or overturn that precedent, we
conclude that the Green decision in this respect is a case-specific holding
and not applicable in this case. We further note that in Luster, the victim’s
statements that appellant “was going to do something real bad to her,” and
that appellant was “trying to kill her” appear to be expressing the victim’s
belief. Luster, 71 A.3d at 1041; see also Kunkle, 79 A.3d at 1185
(wherein the decedent’s out-of-court statement that appellant would be to
blame if he died was deemed admissible). Rule 803(3) plainly states that a
declarant’s then-existing state of mind does not include a statement of belief
to prove a fact believed unless it relates to the validity or terms of a will.
Pa.R.E. 803(3).


                                 - 18 -
J-A20044-14


to be admissible under this exception, the statement must reflect the

declarant’s state of mind or emotional, sensory, or physical condition that

existed at the time of the statement.                  Pa.R.E. 803(3); see also

Schmalz, 67 A.3d at 804.

      Out-of-court statements that look backward, or describe a declarant’s

past memory or belief about another’s conduct, are inadmissible under this

exception. See Pa.R.E. 803(3); see also Schmalz, 67 A.3d at 804 (stating

that “a statement relating to past events based on memory or belief is not

permissible to establish the truth of those events, absent relation to the

execution, revocation, identification, or terms of the declarant’s will.”). The

declarant must not have had an opportunity to reflect on his/her then-

existing state of mind as to a past fact.          See Schmalz, 67 A.3d at

804 (stating   that   the   “statement     must   be    instinctive,   rather   than

deliberate[.]”) (citation and quotation marks omitted). Thus, the admission

of the out-of-court statement must be limited to a declaration showing the

declarant’s then-existing state of mind and not the factual occurrence

engendering that state of mind.     See Pa.R.E. 803(3).14       Furthermore, it is

also clear that the out-of-court statements by a victim cannot be used as


14
   For example, if a victim stated that she was afraid of the defendant
because he had struck her, the entire statement would be inadmissible
under Pa.R.E. 803(3) because the statements are perceptions or beliefs a
victim has of events. Thus, the statement of a declarant’s state of mind
would only be admissible as to her statement that she was afraid under
Pa.R.E. 803(3). The reasons why she was afraid cannot be characterized as
declarations of her state of mind.


                                  - 19 -
J-A20044-14


substantive evidence, as this would contravene the rule against hearsay.

Moore, 937 A.2d at 1072; Stallworth, 781 A.2d at 118. Finally, even if the

out-of-court statement is relevant, the courts must still balance the

relevance and the prejudicial effect of the admission of the statement. See

Commonwealth v. Barnes, 871 A.2d 812, 818 (Pa. Super. 2005) (stating

that in determining whether evidence should be admitted, the trial court

must weigh the relevance against the prejudicial impact of the admission of

the evidence, and that the court may conclude that relevant evidence is

inadmissible on account of its prejudicial impact).

      Here, the Commonwealth asserts that because Yale will utilize a

defense of accidental death, and denies the existence of marital discord

between the parties, Joan’s out-of-court statements are admissible to

demonstrate Yale’s motive in killing Joan. See Brief for the Commonwealth

at 14, 15, 25; see also Trial Court Opinion, 2/6/14, at 1 (stating that “it is

almost certain that an accidental fall will be the crux of the defense[.]”).

However, “the general fact that the defense argues ‘accident’ does not open

the gates of hearsay through the state[-]of[-]mind exception.             The

Commonwealth must still show why the decedent’s state of mind is

relevant.”   Trial Court Opinion, 2/6/14, at 3.       Indeed, the out-of-court

statement must be probative on the question of the victim’s “then-existing”

state of mind and must not include “a statement of memory or belief to

prove the fact remembered or believed.” Pa.R.E. 803(3); Moore, 937 A.2d



                                 - 20 -
J-A20044-14


at 1070. Accordingly, because Yale is likely to use a defense of accident, we

must review the out-of-court statements at issue, and determine whether

they are probative of Joan’s state of mind and admissible under Rule

803(3).15 See Moore, 937 A.2d at 1070.

     First, the Commonwealth asserts that Yvette, Joan’s daughter-in-law,

will testify as to Joan’s statements that Yale called her names and threw

things around the house when he became upset; that she and Yale argued

over putting Yale’s name on Joan’s house; that Yale was mentally abusing

Joan by calling her names; that Yale was “acting up again;” that her

marriage was one of convenience and not of love; that Yale wanted her to

put his name on a CD; that Joan gave Ronald two safety deposit boxes with

financial information and told Ronald to go through the boxes “if anything

happened to her;” that Joan called to talk to her son and sounded

depressed; and that Yale called the day before Joan’s death about having

Joan’s son call him. See Interview (Yvette), 3/23/01, at 1-6 (unnumbered);

see also Brief for the Commonwealth, Exhibit C. Yvette would also testify

to her belief that Joan was considering a divorce. See Interview (Yvette),




15
   We note that the Commonwealth has attached an exhibit to its brief that
details the various out-of-court statements it seeks to admit at trial. See
Brief for the Commonwealth, Exhibit C. We address only these specific
statements in this Memorandum. The complete statements in question are
found in reports generated by the Pennsylvania State Police of interviews of
the relevant witnesses, which the Commonwealth attached to its Brief in
Opposition to Yale’s Motion In Limine.


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J-A20044-14


3/23/01, at 3-4 (unnumbered); see also Brief for the Commonwealth,

Exhibit C.

      These statements are inadmissible under the state of mind exception.

Indeed, many of the statements involve past events, and do not include

Joan’s then-existing state of mind.     See Pa.R.E. 803(3). Further, Yvette’s

beliefs about Joan’s thoughts and Yale’s statements16 are not admissible

under Rule 803(3) to demonstrate Joan’s then-existing state of mind.

Finally, with regard to the safety deposit boxes full of financial information, it

is unclear from Yvette’s statements whether she personally observed the

delivery of the boxes or heard Joan’s statements.                Thus, Yvette’s

statements, as presented, are not admissible.

       Yvette would also testify that Joan called her on March 20, 2001,

stating that she was upset because Yale would not allow her to use the cars

or give her money. See Interview (Yvette), 3/23/01, at 2 (unnumbered);

see also Brief for the Commonwealth, Exhibit C.         Yvette’s testimony that

Joan was upset evidenced Joan’s state of mind at that time and is therefore

admissible. See Schmalz, 67 A.3d at 805 (stating that testimony as to out-

of-court statements that declarant was upset was admissible under the state

of mind exception to the hearsay rule). However, the statements regarding


16
   The trial court ruled that to the extent the witnesses heard Yale’s
statements, “those may be received as admissions.” Trial Court Opinion,
1/8/14, at 20. The trial court must weigh the relevance against the
prejudicial impact of the admission of the evidence. See Barnes, 871 A.2d
at 818.


                                  - 22 -
J-A20044-14


the reasons why Joan was upset are not admissible, as they relate to Joan’s

memory of past events.      See id. (stating that courts cannot utilize the

reasons why the declarant was upset as they involved her memory or belief

as to past events); see also Pa.R.E. 803(3). Thus, with regard to Yvette’s

testimony concerning Joan’s state of mind, Yvette could only testify to Joan’s

statement that she was upset.

      Next, Ronald would testify that Joan told him that Yale was mentally

abusive; that Joan went to East Stroudsburg Savings Association to change

the name on a CD; that he received calls from Yale and Joan on March 19,

2001; that Joan calculated how much it cost for Yale to live in her house and

that Joan stated that Yale became angry when informed of this calculation;

that Joan stated that Yale was mean and nasty; that Joan found out that she

could have money from her father’s social security; that Joan and Yale could

not agree on her will that would allow Yale to get 50% of the house; that

Joan asked Ronald whether Yale was going to leave after Yale had called

Ronald; that Ronald thought that Yale and Joan fought over every little thing

and the fighting was escalating; and in response to Ronald’s statement

regarding her safety, Joan stated that it was “in the back of her mind, but

she thought that she could get to the phone and call 911 if he did anything.”

See Interview (Ronald), 3/22/01, at 1-5 (unnumbered); see also Brief for

the Commonwealth, Exhibit C.




                                 - 23 -
J-A20044-14


     The statements regarding Joan’s recitation of past events are

inadmissible under the state of mind exception, as they do not evidence

Joan’s then-existing state of mind. Further, Ronald’s opinion as to Joan and

Yale’s arguments are not admissible under Rule 803(3) to evidence Joan’s

then-existing state of mind.17    With regard to Joan’s response to Ronald’s

statement about her safety, the response does not demonstrate any plan,

motive, design, mental feeling, pain, or bodily health being experienced by

Joan. Moreover, Joan’s general statement relates to some unknown future

conduct by Yale and we cannot infer Joan’s then-existing state of mind, such

as fear. Thus, the trial court properly found that the above statements were

inadmissible under Rule 803(3).

     Ronald would also testify about a message left by Joan on March 22,

2001, the day of her death. According to the Commonwealth, Ronald would

state that Joan declared her intent to stay at Ronald’s home. See Brief for

the Commonwealth at 20; accord Trial Court Opinion, 2/6/14, at 5 (wherein

the trial court states that based upon the Commonwealth’s description of the

statement, it would be admissible).        However, our review of Ronald’s

17
   We note that the Commonwealth also seeks to introduce statements made
by Yale to Ronald, including that that Yale called him to go to Joan’s house
because Yale and Joan were arguing, and that Yale stated that something
had to be done. Interview (Ronald), 3/22/01, at 2 (unnumbered); see also
Brief for the Commonwealth, Exhibit C. As noted above, the trial court ruled
that Yale’s statements, that were heard by the witnesses, are admissible.
Trial Court Opinion, 1/8/14, at 20; see also Barnes, 871 A.2d at 818.
Furthermore, any arguments observed by the witnesses were also
admissible. See Trial Court Opinion, 1/8/14, at 20; see also Puksar, 740
A.2d at 224; Chandler, 721 A.2d at 1045.


                                  - 24 -
J-A20044-14


interview with the police, detailing this particular statement, discloses that

Ronald stated that “his mother said in the message that she wanted to stop

by at some point in the day.”             Interview (Ronald), 3/22/01, at 1

(unnumbered); see also Brief for the Commonwealth, Exhibit C.              The

statement, as constructed by the Commonwealth, would be relevant and

admissible to demonstrate that Joan intended to leave her home and live

with Ronald.    See Sneeringer, 668 A.2d at 1171–72.            However, the

statement, as recited by Ronald in the police interview, would be

inadmissible as Joan’s decision to stop by Ronald’s house was not relevant or

probative of Joan’s state of mind or of Yale’s motive.          Because the

Commonwealth fails to cite to the record to support its interpretation of

Joan’s message to Ronald, and in light of the plain language of Ronald’s

statements in the police interview, we conclude that the statement is

inadmissible.   Additionally, the other messages left by Joan on March 22,

2001, are not relevant and do not state Joan’s then-existing state of mind

under Rule 803(3).

     Finally, Ronald would testify that on March 21, 2001, Joan gave him

nine envelopes of financial information “in case something happened to her;”

that on March 20, 2001, Joan gave him two lockboxes containing paper and

money; and that Joan wanted to get the boxes out of the house “in case

something   happened    to   her.”    Interview   (Ronald),   3/22/01,    at   1

(unnumbered); see also Brief for the Commonwealth, Exhibit C.            Ronald



                                 - 25 -
J-A20044-14


would also testify that on March 19, 2001, Joan called him and was crying

and upset because Yale cut her monthly allowance and could not get things

for   her   grandchildren.    See   Interview   (Ronald),   3/22/01,   at   2

(unnumbered); see also Brief for the Commonwealth, Exhibit C.

      Ronald’s statements that Joan gave him the envelopes and lockboxes

of financial information are admissible, as he observed this interaction.

Further, Joan’s statement that she provided this information “in case

something happened to her” is also admissible, as it demonstrates her then-

existing intent as to the reason for providing the financial information to

Ronald.     Moreover, Joan’s statement that she was upset is admissible;

however, the statements as to her reasons for being upset are inadmissible.

See Schmalz, 67 A.3d at 805. Thus, Ronald could testify regarding these

statements, and the trial court improperly found this testimony to be

inadmissible at trial.

      Next, the Commonwealth sought to introduce testimony of Joan’s

other son, Randall Litts (“Randall”), who would testify that Joan and Yale

argued over ownership of the house for four years; that Yale called Randall a

Nazi and a vulture and that Joan told Randall not to get upset; that Joan’s

main concern was that Randall not be upset over the phone call; and that

Yale sounded calm when he called to inform Randall about Joan’s fall. See

Interview (Randall), 3/22/01, at 1-4 (unnumbered); see also Brief for the

Commonwealth, Exhibit C.



                                - 26 -
J-A20044-14


      These statements are inadmissible under the state of mind exception.

Indeed, these statements involve Randall’s observations about the length of

the fight over the home, Yale’s statements, and Joan’s statements regarding

Randall’s feelings.   Thus, to the extent the Commonwealth seeks to admit

these statements as evidencing Joan’s state of mind, we agree with the trial

court’s ruling that the statements are inadmissible.18

      The Commonwealth also sought to introduce the testimony of Lorraine

Litts (“Lorraine”), Randall’s wife and Joan’s daughter-in-law. Lorraine would

testify that Joan brought envelopes of financial information to her home in

case something happened; that Joan was nervous when bringing the

financial information to her home; that Joan told Lorraine that she assured

Yale that she was not filing for divorce yet; and that Lorraine told Joan not

to be afraid of calling 911, and Joan replied she would call 911 if needed.

See Interview (Lorraine), 3/22/01, at 1-4 (unnumbered); see also Brief for

the Commonwealth, Exhibit C.

      As noted above, Joan’s action of bringing financial information and her

statement is admissible. However, Lorraine’s belief that Joan was nervous

does not implicate Joan’s state of mind.     Moreover, Joan’s statements to

Lorraine regarding past events, i.e., whether she would file a divorce

complaint, are inadmissible under the state of mind exception.       Further,

18
   Again, as noted above, the trial court allowed the admission of Yale’s
statements to the witnesses and any arguments that the witnesses had
observed. Trial Court Opinion, 1/8/14, at 20; see also Barnes, 871 A.2d at
818.


                                 - 27 -
J-A20044-14


Joan’s statements in reply to calling 911 does not evidence any plan, motive,

design, mental feeling, pain, or bodily health being experienced by Joan.

Thus, Lorraine could only testify to Joan’s action of bringing financial

information to her home and Joan’s statement in connection with the action.

     The Commonwealth also sought to introduce the testimony of Harold

Myers (“Myers”), Joan’s brother. Myers would testify that Joan was scared

to death of Yale; that Joan was scared of Yale doing physical harm to her;

and that Joan was concerned about keeping her home for her children. See

Interview (Myers), 6/6/12, at 1 (unnumbered); see also Brief for the

Commonwealth, Exhibit C.

     While Myers’s statements indicated Joan was scared, there is no

indication in the record to show that she actually made such statements.

Thus, we conclude that these statements are inadmissible. Further, Joan’s

statement as to the ownership of the home relates to past events and does

not signal her state of mind. Thus, these statements were properly found to

be inadmissible.

     The Commonwealth also seeks to introduce notes, written by Joan,

that were found in her purse.     The notes set forth various statements,

purportedly made by Yale, including telling Joan to “move it now elephant,

fat pig;” telling Joan that he was going to commit her to the “crazy house;”

calling Joan’s grandchildren names; telling Joan that she would not be

allowed to give anything to her grandchildren; and screaming at Joan.



                                - 28 -
J-A20044-14


      None of these statements are admissible under the state of mind

exception, as they do not demonstrate Joan’s then-existing state of mind.

Indeed, the statements are merely recollections of past events and a

commentary of Joan and Yale’s marital strife. See Levanduski, 907 A.2d at

20. Thus, the trial court properly ruled the letter to be inadmissible.

      Next, the Commonwealth seeks to admit the testimony of Joan’s

neighbor, Agnes Diehl (“Diehl”). Diehl would testify Joan would come to her

house and declare that Yale treated her poorly; that Yale called her names;

and that Yale wanted his name on the deed of the house.          See Interview

(Diehl),   7/3/13,   at   1-2   (unnumbered);     see   also   Brief      for    the

Commonwealth, Exhibit C. Diehl stated that Joan appeared to be suffering

from significant mental stress.       See Interview (Diehl), 7/3/13, at 1

(unnumbered); see also Brief for the Commonwealth, Exhibit C.                   Diehl

would also testify that she would hear Yale screaming at Joan and that

Ronald would subsequently come to Joan’s house.         See Interview (Diehl),

7/3/13, at 1 (unnumbered); see also Brief for the Commonwealth, Exhibit

C.

      With regard to Joan’s statements to Diehl detailing Yale’s prior

behavior, these statements are inadmissible under the state of mind

exception. Further, Diehl’s observations about Joan’s mental health are not

admissible to demonstrate Joan was actually feeling mental stress under the

exception. Indeed, there is no indication that Joan made any statement with



                                  - 29 -
J-A20044-14


regard to her mental stress.     However, as noted above, the trial court

already found any arguments between Joan and Yale, which were heard by

the witnesses, to be admissible. See Trial Court Opinion, 1/8/14, at 20; see

also Barnes, 871 A.2d at 818.      Thus, Diehl’s statements that she heard

screaming is admissible.    See id.; see also Puksar, 740 A.2d at 224;

Chandler, 721 A.2d at 1045.

       Finally, the Commonwealth seeks to admit the testimony of Robert

Vandercar (“Vandercar”), a former neighbor of Joan.       According to the

Commonwealth, Vandercar would testify regarding Joan’s statements that

she was afraid that Yale would kill her “within a year of the murder.”

Commonwealth Brief in Opposition of Yale’s Motion In Limine, 2/26/14, at 15

n.7.   However, aside from this mention in the Commonwealth’s Brief in

Opposition to Yale’s Motion In Limine, there is no indication that Vandercar

would testify to these facts or that Joan made these statements to

Vandercar. Thus, this statement is inadmissible.

       Based upon the foregoing, we conclude that Joan’s act of bringing

financial documents and her statements in connection with this act, are

admissible at trial.   Statements evidencing Joan’s then-existing state of

mind, i.e., she was upset, are admissible at trial under the state of mind

exception of the hearsay rule.   Further, any arguments between Yale and

Joan, actually heard by the witnesses, are also admissible. See Trial Court




                                 - 30 -
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Opinion, 1/8/14, at 20; see also Barnes, 871 A.2d at 818. The remaining

statements proposed by the Commonwealth are inadmissible.

      In its second claim, the Commonwealth contends that the trial court

improperly reserved the right to disallow cumulative or inflammatory

photographs of victim and the crime scene, where the parties had stipulated

as to the admissibility of the photographs. Brief for the Commonwealth at

29-31. The Commonwealth argues that since neither party was challenging

the admissibility of the photographs, the trial court has no discretion in

deciding admissibility. Id. at 30-31.19

      Here, the trial court acknowledges that the parties entered into a

stipulation over the admissibility of photographs of Joan’s body and the

crime scene.     See Trial Court Opinion, 2/6/14, at 5; Trial Court Opinion,

1/8/14, at 21.     However, the trial court further stated that despite the

stipulation, it could, in its discretion, exclude cumulative or inflammatory

photographs. See Trial Court Opinion, 2/6/14, at 5-6; Trial Court Opinion,

1/8/14, at 21.    The trial court relied on our Supreme Court’s decision in

Commonwealth v. Murray, 83 A.3d 137, 156 (Pa. 2013), for the

proposition that when the Commonwealth proffers photographs of a

homicide victim for admission into evidence, the trial court must determine

whether the photographs are inflammatory and if so, whether the prejudicial



19
   We note that Yale did not set forth an argument related to this claim in his
brief on appeal.


                                 - 31 -
J-A20044-14


impact outweighs the probative value of the photographs.             Trial Court

Opinion, 2/6/14, at 6.

      In Murray, the appellant argued that the trial court utilized an

improper standard of review in admitting photographs of the homicide

victim. Murray, 83 A.3d at 155. The Supreme Court set forth a two-part

analysis to be applied by a trial court where the Commonwealth proffers

photographs of a homicide victim for admission into evidence:

      First a [trial] court must determine whether the photograph is
      inflammatory. If not, it may be admitted if it has relevance and
      can assist the jury’s understanding of the facts.          If the
      photograph is inflammatory, the trial court must decide whether
      or not the photographs are of such essential evidentiary value
      that their need clearly outweighs the likelihood of inflaming the
      minds and passions of the jurors.

Id. at 156 (citation omitted). The Supreme Court concluded that the trial

court did not err in its process of admitting the photographs. Id.

      Unlike Murray, in this case, Yale stipulated to the admissibility of the

photographs. It is well-settled that “[a] valid stipulation must be enforced

according to its terms.”    Commonwealth v. Rizzuto, 777 A.2d 1069,

1088 (Pa. 2001), abrogated on other grounds by Freeman, 827 A.2d at

400. “Parties may by stipulation resolve questions of fact or limit the issues,

and, if the stipulations do not affect the jurisdiction of the court or the due

order of the business and convenience of the court they become the law of

the case.”    Rizzuto, 777 A.2d at 1088; see also Commonwealth v.

Mathis, 463 A.2d 1167, 1171 (Pa. Super. 1983).



                                 - 32 -
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      Thus, because Yale and the Commonwealth stipulated to the admission

of the photographs of the victim and the scene of the death, and the

stipulation is not being challenged, the trial court must enforce the

stipulation as the law of the case. Accordingly, the trial court does not have

any discretion in omitting cumulative or inflammatory photographs.

      Order affirmed in part and reversed in part. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/23/2014




                                 - 33 -
