Commonwealth v. McBurrows
2001 Pa. Super. LEXIS 643, 779 A.2d 509, 2001 Pa. Super. 164 (2001)
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Rule of Law:
The Pennsylvania confidential communications privilege between spouses (42 Pa.C.S.A. § 5914) generally protects oral or written statements and nonverbal signs or gestures intended to transmit information from one spouse to another, but it does not extend to one spouse's observation of the other spouse's non-communicative acts, even if performed in the observing spouse's presence.
Facts:
- On January 9, 1999, Javan McBurrows inflicted fatal abuse upon a minor child, Michael Davis, who was residing in his care.
- During the abuse, Mrs. McBurrows observed Javan McBurrows slap Michael Davis multiple times and strike him five to ten times on the legs with a mason's level.
- After the abuse, Javan McBurrows took Michael Davis outside into the snowy front yard and subsequently placed him in a bathtub full of cold water.
- Michael Davis became unresponsive after Javan McBurrows poured Listerine antiseptic into his eyes and attempted CPR.
- Javan McBurrows wrapped Michael Davis in a sheet and instructed Mrs. McBurrows to drive him to the hospital, asking if she was going to 'fold' on him.
- After Mrs. McBurrows took Michael Davis to Abington Hospital alone and returned home, Javan McBurrows drove her to an abandoned church in the Germantown section of Philadelphia.
- While in the van, Mrs. McBurrows saw two mason's levels inside an open plastic bag on the floor, one of which was the level she saw Javan McBurrows use to strike Michael earlier that morning.
- Javan McBurrows stopped the van, took the levels from the bag, threw them over a fence, and told Mrs. McBurrows he was 'donating them'.
Procedural Posture:
- On January 15, 1999, Javan McBurrows was charged with first-degree murder, third-degree murder, voluntary manslaughter, recklessly endangering another person, possessing an instrument of a crime, and endangering the welfare of children.
- On May 18, 1999, Javan McBurrows filed an omnibus pre-trial motion seeking, among other things, to preclude the testimony of his wife, Mrs. McBurrows, based on spousal immunity or privileged communications.
- A hearing on the motion was held on June 28, 1999, after which the defense submitted challenged portions of Mrs. McBurrows’s statements and preliminary hearing testimony.
- By Order dated July 20, 1999, the suppression court granted in part and denied in part McBurrows's suppression motion, finding Mrs. McBurrows's testimony regarding her observation of Appellee's disposal of the mason’s level was privileged pursuant to 42 Pa.C.S.A. § 5914.
- The Commonwealth filed a notice of appeal on July 21, 1999, certifying, pursuant to Pa.R.A.P. 311(d), that the suppression Order terminated or substantially handicapped their case.
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Issue:
Does a wife's observation of her husband disposing of an alleged murder weapon, accompanied by a statement about 'donating' it, constitute a 'confidential communication' protected by the marital privilege under 42 Pa.C.S.A. § 5914, thereby precluding her testimony?
Opinions:
Majority - Orie Melvin, J.
No, a wife's observation of her husband disposing of an alleged murder weapon does not fall within the confidential communications privilege under 42 Pa.C.S.A. § 5914 unless the act itself was intended to convey a message induced by the confidential nature of the marital relationship. The court reviewed the confidential communications privilege, noting its purpose to preserve marital harmony and its general limitation to oral or written communications. The court explicitly overruled Commonwealth v. Clark to the extent it was viewed as expanding the privilege to all observations of one spouse by the other, finding that such an expansion was inconsistent with the facts of Clark and lacked supporting authority. Relying on jurisdictions that restrict the privilege, the court found Mrs. McBurrows's observation of McBurrows's act of disposing of the mason's levels was not an oral or written word, expression, or gesture intended to convey a message induced by the confidential nature of the marital relationship. The court acknowledged that in rare instances an expression or gesture by one spouse may constitute a confidential communication if it was intended to convey a message and was induced by the confidential nature of the marital relationship, but found the present facts did not meet this criteria.
Dissenting - Johnson, J.
Yes, a wife's observation of her husband disposing of an alleged murder weapon, particularly when accompanied by a statement, constitutes a confidential communication protected by the marital privilege under 42 Pa.C.S.A. § 5914. Justice Johnson argued that the Commonwealth failed to overcome the presumption that McBurrows's statement about 'donating' the levels, made while disposing of them, was confidential, as it incriminated him in the concealment of a possible murder weapon. The dissent disagreed with the majority's decision to overrule Commonwealth v. Clark, which had previously stated it would be 'anomalous' to exclude acts done at the time confidential oral communications were made from the privilege's protection. Justice Johnson asserted that when a spouse observes conduct 'wedded to a confidential utterance' made by the other spouse, the observation and statement are inseparable and should both be protected to uphold the common law principle of preserving domestic peace, harmony, and the sanctity of marriage. While acknowledging the societal interest in evidence, the dissent emphasized that society's interest in protecting marital privacy outweighs evidentiary needs in such circumstances.
Analysis:
This case significantly narrowed the scope of the marital confidential communications privilege in Pennsylvania, explicitly overruling prior precedent that suggested a broader application to observed acts. By restricting the privilege primarily to intentional verbal or non-verbal messages, the court prioritized the pursuit of justice and the admissibility of evidence over an expansive interpretation of marital harmony. Future cases will likely see courts more readily admit spousal testimony regarding observed actions, unless those actions clearly and intentionally served as a substitute for verbal communication driven by marital confidence. This ruling brings Pennsylvania in line with jurisdictions favoring a narrower construction of such privileges, potentially easing the burden on prosecutors in cases where a spouse is an eyewitness to a crime committed by their partner.
