Commonwealth v Burno, ___ A.3d ___, No 716 CPA (Pa. 2/22/17)
Mr. Burno appealed his conviction for homicide and death penalty, and both were affirmed by the Supreme Court. This case has a long procedural history, having made two visits to the appellate courts before the merits of his direct appeal were considered in this opinion.
Of note is the discussion of the applicability of Pa.R.Crim.Pro 410 barring admission of plea discussions. Mr. Burno and his lawyer wanted to cooperate against his codefendant, and as a consequence they met with the prosecutor and two detectives. This led to an agreement that in return for a truthful statement, guilty plea, and truthful testimony against the co-defendant, he would not receive the death penalty. The Commonwealth though did not believe the statement, denying that he participated in the murders, and demanded a polygraph. He took it a few days later, his attorney not attending, and was told he was lying. He broke down, apologized, and was told by the prosecutor f he was truthful he might get a second chance. He then confessed, and with his attorney finally present encouraging him to talk, described how the murders occurred. On the day before his co-defendant’s preliminary hearing however, he said he did not want to testify and would take his chances at trial. The Commonwealth then sought to introduce the post-polygraph statements, made in the attorney’s presence, at trial. The trial court refused to exclude them.
Because these statements were made during the course of active negotiations, they should not have been admitted at trial. “There is no question that the Commonwealth was participating in plea discussions with Burno at the time that he confessed. This is the relevant inquiry. . .” Nevertheless, the error was deemed harmless in light of all of the other evidence adduced at trial, including several admissions in recorded jailhouse recordings.