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Commonwealth v. Boczkowski3/23/2004
en he left his intoxicated wife in the hot tub alone, where she drowned. The physical evidence, however, including the bruising and injuries indicating that Maryann had died from manual strangulation, would not support an involuntary manslaughter conviction and, once again, appellant defended on an accident theory. Therefore, the trial court properly declined to charge the jury on involuntary manslaughter.
Finally, appellant contends that the trial court erred in failing to instruct the jury that it could draw an adverse inference from the Commonwealth's failure to introduce into evidence a chemical analysis of the sample of water taken from the hot tub as well as fluid found in Maryann's sinus cavity. The hot tub fluid in question was discarded and never processed by the crime lab, and the sinus cavity fluid was never extracted or analyzed.
The record does not support appellant's claim that he was entitled to an adverse inference instruction. Detective Cvetic testified that the hot tub water was not submitted to the crime lab because appellant had drained and cleaned the hot tub prior to the sample being taken. Thus, evidence pertaining to any analysis of the water would have been irrelevant. As for the fluid in Maryann's sinus cavity, both Commonwealth and defense experts agreed that the presence of the fluid was an indication of drowning. Thus, it was the presence of the fluid, not its composition, that was pertinent to appellant's defense of accidental death. Therefore, this claim fails.
IV. Claim of Error Respecting Penalty Phase
Appellant raises a single claim of error relating to the penalty phase. Appellant argues that the trial court erred in denying his motion to quash the aggravating circumstance, i.e., that he had been convicted of another murder committed before or at the time of the offense at issue, because that circumstance arose as a result of the Commonwealth's violating a pre-trial order which had stayed appellant's extradition to North Carolina until the murder charge in Pennsylvania was resolved. We agree that this aggravating circumstance should have been quashed.
Shortly after appellant was arrested and charged with Maryann's murder, North Carolina authorities lodged a detainer and initiated extradition proceedings in order to try appellant for the murder of Elaine Boczkowski. Then-Pennsylvania Governor Robert Casey issued an Executive Warrant directing that appellant be returned to North Carolina. The letter transmitting the Warrant to the Allegheny County District Attorney's Office related that the Governor "had no objection to delaying the delivery of [appellant] until local charges are disposed of, if any are pending." Thereafter, at a February 15, 1995 hearing before the Honorable Kathleen A. Durkin of the Court of Common Pleas of Allegheny County, the Commonwealth presented the Warrant along with the supporting extradition papers from North Carolina. The Commonwealth requested that the court order appellant extradited to North Carolina, but asked for a stay of extradition pending disposition of the instant charges "including sentence, if applicable." Appellant indicated his agreement with the order of extradition and the stay. That same day, Judge Durkin entered an "Order of Court to Extradite Fugitive" ordering extradition, but stayed the order "pending disposition of local charges."
On October 5, 1995, the Commonwealth filed its interlocutory appeal to the Superior Court from Judge Cercone's order granting in part appellant's motion in limine. Thereafter, on October 20, 1995, Deputy District Attorney W. Christopher Conrad of the Allegheny County District Attorney's Office "gave his permission" for the Allegheny
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