[ J - 97A&B - 201 7 ][M.O. - Wecht , J.] IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

COMMONWEALTH OF PENN SYLVANIA ,

Appell ee /Cross

- Appellant

v.

DANIEL CRISPELL ,

Appell ant /Cross

- Appellee : : : : : : : : : : : : : No s

. 722 & 723 CAP Appeal from the Order dated 1/6/1 6 and entered on the docket on 1/12/16 in the Court of Common Pleas, Clearfield County, Criminal Division at No. CP

- 17

- 0000062

- 1990

SUBMITTED: December 6, 2017

CONCURRING AND DISSE NTING 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 a rms 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 w ith and undermined by other uncontradicted[J

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evidence of record,” id. at 22

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. 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 co unsel’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 po ssibly favorable inference , no matter how weak or unsubstantiated

. 2 Part II(C) concern s trial counsel’s stewardship in failing to seek to exclude ( or at least secure a limiting instruction relative to ) evidence of a subsequent attempt ed purse

1 While I agree with this reasoning , I note the apparent tension between it and t he majority’s initial assessment that the evidence concerning Weatherill’s scratches “might tip the balance in favor of the defendant” and support s 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 mu ltiple alternative explanations for the scratches.
In terms of the majority’s prejudice assessment, t o 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 agree ment 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 confessio n 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 convicti on in at least eighteen states”). See generally Jessica A. Roth, Informant Witnesses and the Risk of Wrongful Convictions , 53 A M

. C RIM

. L. R EV

. 737, 765

- 84 (2016).[J

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snatching from an elderly woman , resulting in her falling to the ground

. The majority concludes that trial counsel’s dereliction in this regard “aide d the defense” by permitting Appellant to further contextualize his claim that he acted under Weatherill’s influence and control. Majority Opinion, slip op. at 2 7

. 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 a n 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 Wea therill’s involvement would likely cause circumspection on the jurors ’ part in all events

. See, e.g. , Co m m onwealth 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 t o 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 credib ly deny his involvement in a criminal episode but seeks to blame others where the proof is not ironclad.[J

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At bottom, it seems to me that the risk that the jurors would draw negative implication s from the purse

- snatching incident far outweighs the “aid” the majority attributes to the evidence. I n this regard, it is noteworthy that trial counsel did not ascribe, in any fashion, to having sought to pursue such purported advantage. Particularly g iven the majority’s explanation that a jailhouse informant’s testimony is the sole evidence implicating Appellant ( as op posed 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.