XIII. Chain of Custody
It is well established that the Commonwealth need not produce every individual who came in contact with an item of evidence. Rick at 366 A at 304. Nor is the Commonwealth required to eliminate all possibilities of tampering. Id. Instead, in order to establish a proper chain of custody, the Commonwealth need only establish a “reasonable inference that the identity and condition of the exhibits remained unimpaired until they were surrendered to the court, Commonwealth v. Miller 339 A.2d 573, 578.
Normally, expert reports would not be admissible because they are hearsay, However, the courts have created an exception which allows the Commonwealth to introduce expert reports at a habeas or preliminary hearing. See Commonwealth v, Rick 366 A.2d 302 (Pa. Super. 1976). In Rick ld., the Superior Court held that a chemist’s report stating the defendant’s blood alcohol-content level was admissible, at least so long as it appeared that the Commonwealth would be able to produce at trial the chemist who prepared the report, This principle was later upheld in Commonwealth v. Branch 437 A.2d 748 (Pa. Super. 1981). This principle in law was upheld again in Commonwealth v. Davis. 454 A.2d 92 (Pa, Super. 1982) in which the Court upheld that a hearsay autopsy report is admissible to prove the cause of death at a preliminary hearing. To introduce the expert report, the Commonwealth must show the person who prepared the report will be available to testify. See Commonwealth v. Troop 571 A.2d at 1089.
Evidence was sufficient to support conviction for criminal use of a communication facility; defendant used his computer, gained access to an Internet chat room, and communicated lewd messages to a person he believed to be a I 2-year-old girl, in furtherance of his felonious efforts to have unlawful contact with a minor. Corn. v. Crabill 926 A.2d 488 (Pa Section 7512(a) of the Crimes Code states that “a person commits a felony of the third degree if that person uses a communication facility to commit, cause or facilitate the commission or the attempt thereof of any crime which constitutes a felony under this title.” 18 Pa.C.S. § 7512(a) Appellant does not dispute that the underlying crimes are felonies. However, Appellants sole contention here is that, if this Court concludes that the evidence is insufficient to sustain his conviction for attempt at unlawful contact with a minor then, in turn, we must also conclude that the evidence is insufficient to sustain his conviction for criminal use of a communication facility.
In Commonwealth v. Clarice Smith 389 Pa.Super. 606 (Pa. Super. 989), the court wrote, “Appellant also contends that the evidence was insufficient to support her conviction for abuse of corpse. She asserts that there must be some affirmative act upon the corpse, and that her inaction with regard to the corpse precipitated nothing more than the natural decaying process. The abuse of corpse statute provides at 18 Pa.C.S.A. § 5510:
Except as otherwise authorized by law, a person who treats a corpse in a way that he knows would outrage ordinary family sensibilities commits a misdemeanor of the second degree.
There are few reported eases that address this statute. Commonwealth v. Lore 338 Pa.Super. 42, 60, 487 A.2d 841, 851 (1984) (denial of demurrer on charge of abuse of corpse affirmed); Commonwealth v. Sudler 496 Pa. 295, 303, 436 A.2d 1376, 1379 (1981) (sexual abuse of corpse prohibited by abuse of corpse statute, not rape statute). No reported cases address the issue presented here, namely, whether a person who knowingly leaves a corpse to rot, without making arrangements for a proper burial has “treated a corpse in a way that [ knows would outrage ordinary family sensibilities.”
The Pennsylvania statute is based entirely on Model Penal Code § 250,10. We can look to the Model Penal Code and its Commentaries for guidance in interpreting the Pennsylvania Pa.Super. 612] statute. In Comment 2, the drafters of the Model Penal Code stated that “[t]he distinguishing features of the Model Penal Code offense are the generality and comprehensiveness with which the proscribed conduct is defined,” Model Penal Code § 250.10, Comment 2 (1980). Later in the same Comment the drafters noted that “ are also recent enactments dealing with concealment of a corpse” and a variety of other specific offenses. ld. The drafters then concluded that even a cumulation of the specific provisions is “likely to leave gaps that could be avoided by following the Model Code approach of a generalized statement of the offense,” ld. Therefore, the purpose of drafting the abuse of corpse statute in very broad and general language was to ensure that offenses such as concealing a corpse came under the purview of the statute.
Appellant concealed her daughter’s corpse from the proper authorities, and did not make arrangements for burial because she said she was afraid and confused, in so concealing the corpse, she allowed it to be eaten by rodents and become mummified. The statute was intended to cover appellant’s conduct. Moreover, as the trial court concluded, such conduct does indeed constitute an outrage to ordinary family sensibilities; therefore, we must affirm appellant’s conviction for abuse of corpse.
In this case, Michael Kocis was to be called to testify as to how the charred corpse of his son outraged his sensibilities, At the time of the preliminary hearing, a Stipulation was reached that Michael Kocis would testify that the condition of this altered or destroyed corpse of his son would outrage the ordinary family sensibilities and hence, at least on, therefore, the Commonwealth did not have to present testimony regarding same, however, the caveat was that both Defendants reserved their right to argue that each was not responsible for the abuse of corpse. Prelim. Hrg. Tran., Vol I. pages 267-268.
Evidence of defendant’s stated intention to kill the victim, evidence of his presence at the time of the killing, evidence of his help in attempting to conceal the crime, and evidence of his subsequent admission of participation was sufficient to sustain his conviction for conspiracy and murder, Commonwealth v. Rodgers 456 A.2d 1352 (Super. 1983).
Evidence of subsequent acts may be relevant in establishing a conspiracy if such subsequent acts are such as to support an inference of prior agreement. Commonwealth v. Stephens 331 A.2d 719, 231 Pa.Super. 481, 1974.
In Commonwealth v. Toney 378 A.2d 310, 474 Pa. 243 (Pa., 1977), Gray and the decedent, Edwards, were standing on the corner of two streets in Philadelphia, when they were surrounded by five youths. Appellant asked the pair where they were from, The decedent replied, “nowhere, we don’t gang war,” Another youth, Randy Coley, asked the pair for their addresses. Gray and the decedent responded with their street addresses. With no warning or provocation, Coley stabbed the victim in the chest. Gray turned and fled despite appellant’s attempt to restrain him. As Gray fled, he heard shots fired but he was unable to identify the person firing the gun. The victim died within an hour from a single stab wound in the heart.
Appellant correctly points out that since he did not stab the victim, his conviction must be based on the theory that he was an accomplice of Coley. Section 306 of the Crimes Code provides that one can be convicted of being an accomplice if “... with the intent of promoting or facilitating the commission of the offense (one)... aids or agrees or attempts to aid such other person in planning or committing it.. .“ 18 C.P.S.A. § 306(c). Appellant contends that the evidence was insufficient to show that the appellant either aided, agreed to aid, or attempted to aid Coley in stabbing Edwards, We do not agree. We believe the appellant’s conviction is supported by the evidence. The jury could reasonably have inferred from appellant’s participation in surrounding the victim and his friend, from the evidence of appellant’s initiation of the conversation, and from appellant’s attempt to restrain Gray following the stabbing, that appellant had prior knowledge of Coley’s intent and a prior agreement to aid Coley in carrying out that intent. Appellant would thus have come within the definition of an accomplice. Commonwealth v. Pierce 437 Pa. 266, 263 A,2d 350 (1970); Perkins, Parties to Crime, 89 U.Pa 581 (1941). On the basis of the same evidence, we reject appellant argument that the evidence was insufficient to establish that appellant was guided by a “conscious object” of causing the death of Edwards, and intended to help Coley to achieve that end. 18 C.P.S.A. § 306(d); 18 C.P.S.A. § 302(b)( 1 )(i).
The Defendants are also charged with Tampering with Evidence and Conspiracy to Tamper with Evidence. The corpse is evidence; it was incinerated. The home was a crime scene; it was torched, Personal property--2257 Forms, video recorders, rolex watches, Cobra Business computers-- were stolen and destroyed. The serial numbers off of the two video camcorders were pried off, in an attempt to conceal their identification.
In Commonwealth v, Chester 587 A.2d 1367, 526 Pa. 578 (Pa., 1991) The Commonwealth correctly notes that the duration of a conspiracy depends upon its facts, which help determine the scope of the original agreement. Commonwealth v. Pass 468 Pa. 36, 360 A.2d 167 (1976). A conspiracy, for purposes of the co-conspirator exception to the hearsay rule, may be inferentially established by showing the relation, conduct, or circumstances of the parties. Commonwealth v. Dreibelbis, 493 Pa. 466. 426 A.2d 1111 (1981); Commonwealth v. Roux, 465 Pa, 482. 350 A.2d 867 (1976) The evidence at trial established that appellants conspired to murder Anthony Milano. However, an examination of the facts of this case reveals that an integral part of the conspiracy was the concealment of the evidence after the commission of the murder. Seer Commonwealth v. Wilson, 394 Pa. 588, 607, 148 A.2d 234 239 (1959) Thus, the conspiracy did not terminate upon the killing of Milano, see Commonwealth v. Dreibelbis supra, at 475, 426 A.2d at 1115, and Chester's statements were properly admitted under the co-conspirator's exception to the hearsay rule. Here, The Defendants freely admit how they destroyed the personal property. Defendant Cuadra states how Cobra’s/Kocis’ plans to make money “went up in smoke.”
Likewise, concerning the Arson Charges, Trooper Jarocha testified that the fire was arson i.e. if incendiary origin. Tom Baker from Nationwide and Michael Kocis testified as to the massive property damage. In addition, Chief Harry Vivan of the Dallas Township Fire Department testified as to the extensive damage to the interior of the residence and the fact that firemen were endangered when they entered the residence to suppress the inferno inside.
It is well established that the Commonwealth need not produce every individual who came in contact with an item of evidence. Rick at 366 A at 304. Nor is the Commonwealth required to eliminate all possibilities of tampering. Id. Instead, in order to establish a proper chain of custody, the Commonwealth need only establish a “reasonable inference that the identity and condition of the exhibits remained unimpaired until they were surrendered to the court, Commonwealth v. Miller 339 A.2d 573, 578.
Normally, expert reports would not be admissible because they are hearsay, However, the courts have created an exception which allows the Commonwealth to introduce expert reports at a habeas or preliminary hearing. See Commonwealth v, Rick 366 A.2d 302 (Pa. Super. 1976). In Rick ld., the Superior Court held that a chemist’s report stating the defendant’s blood alcohol-content level was admissible, at least so long as it appeared that the Commonwealth would be able to produce at trial the chemist who prepared the report, This principle was later upheld in Commonwealth v. Branch 437 A.2d 748 (Pa. Super. 1981). This principle in law was upheld again in Commonwealth v. Davis. 454 A.2d 92 (Pa, Super. 1982) in which the Court upheld that a hearsay autopsy report is admissible to prove the cause of death at a preliminary hearing. To introduce the expert report, the Commonwealth must show the person who prepared the report will be available to testify. See Commonwealth v. Troop 571 A.2d at 1089.
Evidence was sufficient to support conviction for criminal use of a communication facility; defendant used his computer, gained access to an Internet chat room, and communicated lewd messages to a person he believed to be a I 2-year-old girl, in furtherance of his felonious efforts to have unlawful contact with a minor. Corn. v. Crabill 926 A.2d 488 (Pa Section 7512(a) of the Crimes Code states that “a person commits a felony of the third degree if that person uses a communication facility to commit, cause or facilitate the commission or the attempt thereof of any crime which constitutes a felony under this title.” 18 Pa.C.S. § 7512(a) Appellant does not dispute that the underlying crimes are felonies. However, Appellants sole contention here is that, if this Court concludes that the evidence is insufficient to sustain his conviction for attempt at unlawful contact with a minor then, in turn, we must also conclude that the evidence is insufficient to sustain his conviction for criminal use of a communication facility.
In Commonwealth v. Clarice Smith 389 Pa.Super. 606 (Pa. Super. 989), the court wrote, “Appellant also contends that the evidence was insufficient to support her conviction for abuse of corpse. She asserts that there must be some affirmative act upon the corpse, and that her inaction with regard to the corpse precipitated nothing more than the natural decaying process. The abuse of corpse statute provides at 18 Pa.C.S.A. § 5510:
Except as otherwise authorized by law, a person who treats a corpse in a way that he knows would outrage ordinary family sensibilities commits a misdemeanor of the second degree.
There are few reported eases that address this statute. Commonwealth v. Lore 338 Pa.Super. 42, 60, 487 A.2d 841, 851 (1984) (denial of demurrer on charge of abuse of corpse affirmed); Commonwealth v. Sudler 496 Pa. 295, 303, 436 A.2d 1376, 1379 (1981) (sexual abuse of corpse prohibited by abuse of corpse statute, not rape statute). No reported cases address the issue presented here, namely, whether a person who knowingly leaves a corpse to rot, without making arrangements for a proper burial has “treated a corpse in a way that [ knows would outrage ordinary family sensibilities.”
The Pennsylvania statute is based entirely on Model Penal Code § 250,10. We can look to the Model Penal Code and its Commentaries for guidance in interpreting the Pennsylvania Pa.Super. 612] statute. In Comment 2, the drafters of the Model Penal Code stated that “[t]he distinguishing features of the Model Penal Code offense are the generality and comprehensiveness with which the proscribed conduct is defined,” Model Penal Code § 250.10, Comment 2 (1980). Later in the same Comment the drafters noted that “ are also recent enactments dealing with concealment of a corpse” and a variety of other specific offenses. ld. The drafters then concluded that even a cumulation of the specific provisions is “likely to leave gaps that could be avoided by following the Model Code approach of a generalized statement of the offense,” ld. Therefore, the purpose of drafting the abuse of corpse statute in very broad and general language was to ensure that offenses such as concealing a corpse came under the purview of the statute.
Appellant concealed her daughter’s corpse from the proper authorities, and did not make arrangements for burial because she said she was afraid and confused, in so concealing the corpse, she allowed it to be eaten by rodents and become mummified. The statute was intended to cover appellant’s conduct. Moreover, as the trial court concluded, such conduct does indeed constitute an outrage to ordinary family sensibilities; therefore, we must affirm appellant’s conviction for abuse of corpse.
In this case, Michael Kocis was to be called to testify as to how the charred corpse of his son outraged his sensibilities, At the time of the preliminary hearing, a Stipulation was reached that Michael Kocis would testify that the condition of this altered or destroyed corpse of his son would outrage the ordinary family sensibilities and hence, at least on, therefore, the Commonwealth did not have to present testimony regarding same, however, the caveat was that both Defendants reserved their right to argue that each was not responsible for the abuse of corpse. Prelim. Hrg. Tran., Vol I. pages 267-268.
Evidence of defendant’s stated intention to kill the victim, evidence of his presence at the time of the killing, evidence of his help in attempting to conceal the crime, and evidence of his subsequent admission of participation was sufficient to sustain his conviction for conspiracy and murder, Commonwealth v. Rodgers 456 A.2d 1352 (Super. 1983).
Evidence of subsequent acts may be relevant in establishing a conspiracy if such subsequent acts are such as to support an inference of prior agreement. Commonwealth v. Stephens 331 A.2d 719, 231 Pa.Super. 481, 1974.
In Commonwealth v. Toney 378 A.2d 310, 474 Pa. 243 (Pa., 1977), Gray and the decedent, Edwards, were standing on the corner of two streets in Philadelphia, when they were surrounded by five youths. Appellant asked the pair where they were from, The decedent replied, “nowhere, we don’t gang war,” Another youth, Randy Coley, asked the pair for their addresses. Gray and the decedent responded with their street addresses. With no warning or provocation, Coley stabbed the victim in the chest. Gray turned and fled despite appellant’s attempt to restrain him. As Gray fled, he heard shots fired but he was unable to identify the person firing the gun. The victim died within an hour from a single stab wound in the heart.
Appellant correctly points out that since he did not stab the victim, his conviction must be based on the theory that he was an accomplice of Coley. Section 306 of the Crimes Code provides that one can be convicted of being an accomplice if “... with the intent of promoting or facilitating the commission of the offense (one)... aids or agrees or attempts to aid such other person in planning or committing it.. .“ 18 C.P.S.A. § 306(c). Appellant contends that the evidence was insufficient to show that the appellant either aided, agreed to aid, or attempted to aid Coley in stabbing Edwards, We do not agree. We believe the appellant’s conviction is supported by the evidence. The jury could reasonably have inferred from appellant’s participation in surrounding the victim and his friend, from the evidence of appellant’s initiation of the conversation, and from appellant’s attempt to restrain Gray following the stabbing, that appellant had prior knowledge of Coley’s intent and a prior agreement to aid Coley in carrying out that intent. Appellant would thus have come within the definition of an accomplice. Commonwealth v. Pierce 437 Pa. 266, 263 A,2d 350 (1970); Perkins, Parties to Crime, 89 U.Pa 581 (1941). On the basis of the same evidence, we reject appellant argument that the evidence was insufficient to establish that appellant was guided by a “conscious object” of causing the death of Edwards, and intended to help Coley to achieve that end. 18 C.P.S.A. § 306(d); 18 C.P.S.A. § 302(b)( 1 )(i).
The Defendants are also charged with Tampering with Evidence and Conspiracy to Tamper with Evidence. The corpse is evidence; it was incinerated. The home was a crime scene; it was torched, Personal property--2257 Forms, video recorders, rolex watches, Cobra Business computers-- were stolen and destroyed. The serial numbers off of the two video camcorders were pried off, in an attempt to conceal their identification.
In Commonwealth v, Chester 587 A.2d 1367, 526 Pa. 578 (Pa., 1991) The Commonwealth correctly notes that the duration of a conspiracy depends upon its facts, which help determine the scope of the original agreement. Commonwealth v. Pass 468 Pa. 36, 360 A.2d 167 (1976). A conspiracy, for purposes of the co-conspirator exception to the hearsay rule, may be inferentially established by showing the relation, conduct, or circumstances of the parties. Commonwealth v. Dreibelbis, 493 Pa. 466. 426 A.2d 1111 (1981); Commonwealth v. Roux, 465 Pa, 482. 350 A.2d 867 (1976) The evidence at trial established that appellants conspired to murder Anthony Milano. However, an examination of the facts of this case reveals that an integral part of the conspiracy was the concealment of the evidence after the commission of the murder. Seer Commonwealth v. Wilson, 394 Pa. 588, 607, 148 A.2d 234 239 (1959) Thus, the conspiracy did not terminate upon the killing of Milano, see Commonwealth v. Dreibelbis supra, at 475, 426 A.2d at 1115, and Chester's statements were properly admitted under the co-conspirator's exception to the hearsay rule. Here, The Defendants freely admit how they destroyed the personal property. Defendant Cuadra states how Cobra’s/Kocis’ plans to make money “went up in smoke.”
Likewise, concerning the Arson Charges, Trooper Jarocha testified that the fire was arson i.e. if incendiary origin. Tom Baker from Nationwide and Michael Kocis testified as to the massive property damage. In addition, Chief Harry Vivan of the Dallas Township Fire Department testified as to the extensive damage to the interior of the residence and the fact that firemen were endangered when they entered the residence to suppress the inferno inside.
