Commonwealth v. Clemons (Direct Appeal)

Direct Appeal from Sentence of Death; Voluntary Intoxication; Pretrial Publicity; Miranda Warning; Sufficiency and Weight of Evidence; Evidentiary Issues

Commonwealth v. Clemons, 738 CAP

Appellant Jordan Clemons brings this direct appeal from his conviction for first-degree murder and sentence of death.  Appellant raises multiple issues including: (1)  that the trial court should have instructed the jury on the defense of voluntary intoxication in order to mitigate the degree of murder from first to third; (2) that the trial court erred in denying a change of venue from Washington County due to pretrial publicity; (3) that the trial court erred in refusing to suppress a statement Appellant made to the state police after being advised of his Miranda warnings; (4) that the weight and sufficiency of the evidence were lacking; and (5) that the trial court erred in admitting certain evidence.

Facts   

On January 11, 2012, Karissa Kunco picked up Appellant Clemons in her black Toyota convertible nearby where Clemons was staying at the time with his friends, Randol Taylor and Samantha Rush. They drove to a nearby PNC Bank on Brownsville Road around 6 P.M. that day, and Ms. Kunco made a withdrawal from the ATM machine, which was the last time that she was seen alive. Video surveillance of the ATM withdrawal showed Ms. Kunco making a cash withdrawal from the ATM machine and bank records corroborated the video. The video surveillance depicted Ms. Kunco wearing the same sweatshirt that the state police later recovered draped over top Ms. Kunco’s dead body. A bank patron who encountered Ms. Kunco at the ATM machine at that time testified that the only other vehicle in the parking lot was a dark-colored car and she observed an individual with a thin face inside of the passenger compartment of the car while Ms. Kunco was at the ATM. Through cell phone records, it was established that at 6:07 P.M. on January 11, 2012, Randol Taylor, Appellant’s friend, called him and Clemons’s cell phone utilized cell tower 75, which was geographically close to the PNC Bank where Ms. Kunco was observed at the ATM. Video surveillance from a Circle K gas station near Washington, Pennsylvania, depicted Ms. Kunco’s black Toyota pull up to the gas pump on January 11, 2012 at 10:47 P.M. and an individual resembling Clemons was seen getting out of the driver’s side door and pumping gas into Ms. Kunco’s vehicle. Bank records entered into evidence corroborated that gas was purchased at that time using Ms. Kunco’s father’s ATM card. The evidence also included a failed ATM transaction with Ms. Kunco’s father’s same ATM card at an ATM near the Washington Crown Center Mall hours later – January 12, 2012, at 12:37 A.M.- and video surveillance showed substantial similarities between Clemons and the individual attempting to make the transaction in the video. Video surveillance from the Wal-Mart located near Washington, Pennsylvania, depicted Appellant pull into the parking lot in Ms. Kunco’s black Toyota at approximately 2:00 A.M. on January 12, 2012. He was identified in the surveillance video exiting the driver’s side of Ms. Kunco’s vehicle and entering the Wal-Mart alone where he purchased an X-Box with Ms. Kunco’s father’s ATM card. The video surveillance showed Clemons leaving the store, re-entering Ms. Kunco’s vehicle alone, and driving away.  Hours later, at approximately 6:12 A.M., video surveillance showed Clemons entering a convenience store where he attempted to purchase a carton of cigarettes using Ms. Kunco’s father’s ATM card. Shortly thereafter, Clemons called his friend Randol Taylor and told him “I’m sorry, I’m sorry. She’s dead.” Clemons was upset and crying and told witness Taylor over the phone that he was going to kill himself. Taylor and his girlfriend Samantha Rush then picked up Clemons from where he had parked Ms. Kunco’s car and Clemons rode with them back to their residence.

Later that day two surveyors found Ms. Kunco’s body, which was positioned at the top of Sabo Road in the village of Westland, Washington County. They observed drag marks leading from the roadway into a wooded area directly to where they found Ms. Kunco’s naked body, which was covered in leaves and had a tree trunk placed over top of her. They also observed the same pink, Point Park sweatshirt that Ms. Kunco was seen wearing the night before at the ATM.

The forensic pathologist who performed the autopsy testified that a wound to Ms. Kunco’s throat was consistent with having been cut with a sharp instrument and went from ear-to-ear and deep through all the way to the spine, thereby severing the larynx, the thyroid, and every major artery and vein causing severe bloodletting. Several pieces of evidence demonstrated that the killing likely occurred in the backseat of Ms. Kunco’s vehicle.

Shortly before midnight on January 12, Clemons’ mother brought him to the state police barracks in Washington, Pennsylvania, where he agreed to be interviewed. Clemons admitted that Ms. Kunco picked him up at 6 pm the previous day. During the interview, the state police noticed blood on Clemons’ shoes. The state police took Clemons’ shoes along with clippings of his fingernails and a buccal swab for the purposes of DNA analysis, which were later analyzed at the state police laboratory.

State police experts in serology and DNA analysis determined that Ms. Kunco’s blood was on Clemons’s shoes, and underneath Clemons’ fingernails.  Evidence also showed that Ms. Kunco had intact sperm cells in her vagina matching Clemons’ DNA indicating sexual activity within 24 hours of the test.

Twenty-three days before Ms. Kunco was murdered, she applied for and was granted a Protection from Abuse Order following an assault by Clemons. According to the PFA application, Clemons assaulted her on or about December 18, 2011, at the home which she and Clemons lived in Pittsburgh. She received medical treatment for those injuries at St. Clair Hospital and her medical records, including a photograph depicting injuries such as bruising and swelling to her face, were entered into evidence at trial. At the time Ms. Kunco was murdered, Clemons was under an active protection from abuse order restricting him from contacting Kunco. In spite of the PFA Order, Facebook messages between Ms. Kunco and Clemons from January 10 and January 11 that were forensically downloaded by the state police and entered into evidence showed Clemons coercing Ms. Kunco into meeting him by threatening to commit suicide.

The jury found Clemons guilty of murder in the first degree.  In the penalty phase the Commonwealth sought the death penalty citing aggravating as factors: 1) Clemons’ significant history of felony convictions involving the use of or threat of violence and 2) at the time of the killing, Clemons was subject to a court order restricting his behavior toward the victim.  The jury unanimously sentenced Clemons to death.

Issues

The trial court refused Clemons’ voluntary intoxication instruction because, although there was evidence that Clemons smelled of alcohol when he was interviewed by the State Police 12 hours after Ms. Kunco’s body was discovered, his friend who picked him up on the morning of January 12 testified that Clemons did not seem intoxicated from alcohol or drugs that morning.

The trial court also refused Clemons’ request for a change of venue because of pretrial publicity.  Prejudice will be presumed if the defendant is able to show that the pretrial publicity: (1) was sensational, inflammatory, and slanted toward conviction, rather than factual and objective; (2) revealed the defendant’s prior criminal record, if any, or referred to confessions, admissions or reenactments of the crime by the defendant; or (3) derived from official police or prosecutorial reports. Id.; Commonwealth v. Gorby, 527 Pa. 98, 588 A.2d 902, 906 (1991).  In this case, the trial judge ruled in the pretrial phase that Clemons did not show sufficient prejudice to warrant a change of venue, but that he could re-raise the issue during jury selection.  He did not do so.

The trial court refused to suppress Clemons’ statement that the police “had it all wrong” and that Ms. Kunco attacked him the evening she went missing. As the trial court reasoned:

This Court finds that the Defendant did manifest a desire to waive his right to remain silent. At no time did he express any confusion after the officer had explained his rights. Further, no question about the victim’s death was ever posed to him. The Defendant freely volunteered his statements. Only upon the request to sign the waiver did he invoke his right to an attorney. Doing so demonstrated that the Defendant was aware of his rights and, while willing to waive his right to remain silent, he wished to invoke his right to counsel. Based on these facts, the Courts cannot find that the Defendant understood only one of the rights explained to him. Accordingly, this Court finds that the Defendant manifested a desire to waive his right to remain silent.

As to sufficiency of the evidence of first degree murder, the trial court rejected Clemons arguments.  “To sustain a conviction for first-degree murder, the Commonwealth must establish beyond a reasonable doubt that: (1) a human being was unlawfully killed; (2) the defendant was responsible for the killing; and (3) the defendant acted with malice and the specific intent to kill. Commonwealth v. Laird, 605 Pa. 137, 988 A.2d 618, 624-25 (2010). The Crimes Code defines an intentional killing as a “willful, deliberate and premeditated killing.” 18 Pa.C.S. § 2502(d). It is well settled that ‘[p]remeditation and deliberation exist whenever the assailant possesses the conscious purpose to bring about death,’ and ‘can be formulated in a fraction of a second.’ Commonwealth v. Jordan, 619 Pa. 513, 65 A.3d 318, 323 (2013).” Commonwealth v. Cash, 137 A.3d 1262 (Pa. 2016). The specific intent to kill may be inferred where the accused uses a deadly weapon on a vital part of the victim’s body. Commonwealth v. Briggs, 608 Pa. 430, 12 A.3d 291, 306 (2011).

As to weight of the evidence, Appellant contends that the verdict was against the weight of the evidence because there was an inconsistency in the evidence concerning the significant amount of bloodletting from Ms. Kunco as a result of her injuries and the relatively minor amount of blood found on Clemons.  The trial court found otherwise.

As to admission of evidence, Clemons argues that the trial court erred in allowing admission of references to Clemons’ probation records, and medical evidence from his prior assault on Ms. Kunco that led to the PFA, The Commonwealth maintains that the evidence was properly admitted and that if improperly admitted it was harmless error.

For more information, contact Kevin McKeon or Dennis Whitaker.