STATEMENT MADE DURING PLEA NEGOTIATIONS IMPROPERLY ADMITTED. ERROR DEEMED HARMLESS. DEATH SENTENCE AFFIRMED.
The PA Supreme Court has decided the case of Commonwealth v. Burno, No. 716 CAP (February 22, 2017), holding that the trial court erred in admitting statements made by Burno where the original plea negotiation had collapsed but, the plea discussions remained ongoing at the time Burno gave his second confession.
Burno was convicted on two counts of first-degree murder and sentenced to death. He made a number of challenges on appeal and the PA Supreme Court rejected all but the argument that one of his statements to police was inadmissible because it was obtained during the course of plea negotiations.
Burno argued that the trial court erred in admitting his statement as it was made in the course of negotiations and, therefore, inadmissible under Pa. Rules of Evidence, Rule 410(a)(4). The Court explained that Pa.R.E. 410(a)(4) precludes the admissibility of “a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later withdrawn guilty plea.” The rule bars admission of the defendant’s offer to plead guilty, the plea agreement, or statements made in the course of plea negotiations when no guilty plea is subsequently entered or if entered is withdrawn. This prohibition “makes obvious sense. A contrary rule would discourage plea negotiations and agreements, for defendants would have to be constantly concerned whether, in light of their plea negotiation activities, they could successfully defend on the merits if a plea ultimately was not entered.”
The Supreme Court further explained that not every statement making reference to a deal or omission of jail time is necessarily a plea discussion for purposes of this rule. First, the accused must exhibit an actual subjective expectation to negotiate a plea at the time of the discussion; and second, the accused’s expectation must be reasonable given the totality of the circumstances. Of primary importance in assessing an accused’s subjective expectation of negotiating a plea is whether the Commonwealth showed an interest in participating in such discussions. In line with this reasoning, voluntary, unsolicited statements uttered by an accused to authorities cannot be said to be made in furtherance of striking a plea bargain.
Plea negotiations are “discussions in advance of the time for pleading with a view to an agreement whereby the defendant will enter a plea in the hope of receiving certain charge or sentence concessions.” They “contemplate a bargaining process, a ‘mutuality of advantage,’ and a mutuality of disadvantage. That is, the government and the accused both seek a concession for a concession, a quid pro quo. The accused contemplates entering a plea to obtain a concession from the government. The government contemplates making some concession to obtain the accused’s plea.”
In Burno’s case, the prosecuting attorney stated to Burno, “Let’s start from here” and “Give us the truth, testify and we will see where we are.” In doing so, she communicated to Burno that the Commonwealth was poised and willing to respond to Burno’s cooperation with a concession of its own. The Supreme Court concluded that it was clear that the Commonwealth elicited the confession that was utilized against Burno in the give-and-take of the negotiating room. Although the ADA took the original deal off the table, she then encouraged Burno to confess and testify against his co-Defendant, and in turn indicated that she was willing to participate in plea discussions. The promise made by the ADA, vague though it was, prompted Burno to confess and ultimately resulted in a deal. The Supreme Court therefore concluded that there was no question that the Commonwealth was participating in plea discussions with Burno at the time that he confessed.
Accordingly, the Supreme Court held that the trial court erred in concluding that negotiations were ended merely because the original deal had collapsed. Because the record clearly supported the conclusion that plea discussions remained ongoing at the time that Burno gave his second confession, Burno’s confession should not have been admitted under Pa.R.E. 410(a)(4).
Nevertheless, the Supreme Court then concluded that the trial court’s error was harmless.
“Harmless error exists if the state proves either: (1) the error did not prejudice the defendant or the prejudice was de minimis; or (2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.”
In Burno’s case, the Court concluded that the improperly admitted evidence was merely cumulative of other evidence presented and, consequently, affirmed Burno’s death sentence.
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