-: SJC-13355 Commonwealth vs Melissa Pfeiffer.
-: [Chief Justice Budd] Okay, Attorney MacLean,
whenever you're ready.
-: Thank you, good morning.
May it please the court, Ian MacLean
on behalf of the Commonwealth.
The question here is simply whether Judge Sanders
abused her discretion or committed other error of law
by allowing a Rule 25B2 motion,
after this court had already conducted
direct appellate review and affirmed the convictions below.
The answer to that is yes,
for three reasons to simplify the argument.
The first is that she ignored principles of direct estoppel
on multiple occasions and chose to rely in part on things
that this court had already concluded
she could not rely upon.
The second was her decision
to apply this court's holding in Brown,
eliminating felony murder.
She chose to apply that retroactively,
when this court had expressly stated
that that holding was to be prospective only.
-: May I ask you a question?
My memory is that Rule 25 is said to be parallel
in some regards to Rule 33E
and in that the power is similar
and the considerations are similar.
The SJC, we didn't have 33E review in this case
because it was a second degree murder, correct?
-: That's correct, your Honor.
-: So if the judge is looking at this through Rule 25,
her powers at that point
would include what we would've normally considered
the Rule 33E powers.
It wouldn't have been limited to first degree murder,
would it?
-: Well, that's correct, your Honor,
but this court has never said,
this court has analogized 25B2 to 33E,
never said it's expressly the same.
So it is sort of Rule 25B2 is sort of a grant
of almost like an equitable kind of power.
And the Commonwealth would put forward that that
while this court has never actually expressly limited
that power to pre direct appeal,
that's really where that power makes sense.
The trial judge just saw the evidence presented.
25B2 is--
-: No, there's no time limit in Rule 25, right?
-: Correct, your Honor,
the wording of the ruling itself does not have a time limit,
and this court is never limited it to pre direct appeal.
But if you look at at where the rule is placed
in the rules of procedure,
it comes before the rule applying to verdict.
It comes well before post-conviction relief in Rule 30.
And the Commonwealth would say that really
that rule is appropriately placed in that window of time
after the jury has returned a verdict
and until the case enters direct appellate review.
However that will be a change in the law.
The court has never held that.
So we're not saying Judge Sanders abused her discretion.
-: Nothing precludes the judge from saying,
I got it wrong, I'm gonna have a lesser included.
-: Correct, your Honor.
Correct, your Honor.
And the Commonwealth would say that the judges are empowered
the trial judges-
-: It keeps company with Rule 30, basically.
-: This court has said that, your Honor, but I'd say,
I'd note that there are several differences there.
Rule 30 expressly contemplates
adding additional evidence to the record.
Look at Rule 25, there are no references
to adding additional evidence to the record.
-: But there is in 33E, right?
These are the analogies.
We did it in Dow's, we did it in Chronologic.
We've looked at additional evidence in those cases.
Under 33E.
-: Yes, your Honor.
Under 33, you're gonna review the entire record.
And there in theory,
the case would've gone through not only the trial,
but arguably a post verdict 25B2 and a Rule 30
where the trial record would've been supplemented
with some evidence that would then be part of the package
that made its way to the court for 33E review.
Here, what we here--
-: [Chief Justice Budd] No go ahead.
-: Here what we have is a situation where closer to
the Arias case that this court released in 2021,
where we have a post verdict 25B there,
it was nine years afterwards, not nearly as long here.
But still here we have a post verdict 25B2
to get around what would normally be no additional evidence
in a 25B2 motion.
What they do is file a Rule 30 motion
in conjunction with it,
where the rule expressly contemplates
the addition of additional evidence to the record.
Now they're back-during additional evidence
into a 25B2 claim.
We see this a lot.
And sort of the bleed between the two
is part of the results.
This is part of the result
of the bleed over between the two.
-: But both go to the interest of justice, correct?
-: Yes, your Honor,
both do go to the interest of justice,
but I would point you to the specific material
that was included here that was beyond the trial record,
was the supporting reports from the defense's expert
and from another forensic psychologist
that didn't even testify at trial.
So even if this court were to stick with Pagan
and allow someone to supplement the record
in a 25 motion with stuff that wasn't presented at trial,
this is beyond what the court has permitted in the past.
Pagan, it was limited to the expert report
of the expert that testified at trial.
So the same theory that was presented at trial,
just additional information from that same expert
that at least that expert was subjected
to the crucible of cross examination.
-: We've never held that 25B2 allows for
evidence that's not outside the trial record.
-: Correct, your Honor.
-: We just said it in the context of 33E
and that's the analogy, basically.
-: Correct, your Honor.
Correct, your Honor.
-: So there's no rule one way or the other on that issue.
-: No, there is no rule one way or the other.
Pagan is the closest case to it,
where the expert report was considered,
but again, Pagan was a 33E, not a 25B2.
-: But Counsel, if I could go backwards for a little bit.
I hear what you're saying
about how this might be a little bit further afield
from Pagan, but the intent issue was challenged
all through the underlying trial in that she
didn't fully understand the consequences
of what she was doing.
So wouldn't all of those personal characteristics
that came out after the fact be consistent with that?
-: Well, your Honor, I would say that the expert reports
go beyond what exactly came out in trial.
And I would point again to Dr. Fife's expert report
who didn't even testify at trial.
-: Who was Dr. Fife's, which side was she on?
-: The Commonwealth retained Dr. Fife to do an evaluation.
The Commonwealth elected not to present
that witness at trial.
But so here now we have the trial judge is considering
not just the trial record,
which the Commonwealth would say that's what Rule 25B2
is designed to allow them to do, as you know,
even from the standard of review
where it says extra deference to the trial judge,
because they observed the witnesses.
Here we're now supplementing that trial record
with additional information
that then bolsters what happened at trial
without the Commonwealth's ability
to cross-examine any of it.
So here, yes, intent wasn't an issue in the case,
but had the Commonwealth known that either felony murder
was gonna be eliminated in the future,
and that would present a problem for us in this case,
or had the Commonwealth known those things,
they might have presented a different case.
We might have retained a different expert.
If the Commonwealth didn't care for what Dr. Fife
had ultimately concluded or opined,
we might have sought additional information,
we might have presented additional witnesses.
So the case could have been entirely different.
-: But the case, remind me if my memory is wrong,
the case went to the jury
on second degree on the three intents,
and the jury didn't find second degree in that regard.
-: That's correct, your Honor.
-: Okay.
So now, and also I hear your point, loud and clear about
this is beyond the record at trial.
Nonetheless under 25B2, if the instruction to the judge is,
is this verdict consonant with justice,
and if she
heard the case,
isn't she able to
apply that standard
regardless of what a ruling might have been on
prejudice or substantial risk on a jury instruction?
-: Well, your Honor, if I understand your question correctly,
we're sort of addressing two of the four bases
that she relied on.
The first is the defendant's characteristics
or personal traits,
and this court has always held that alone
can never be a sufficient basis
to reduce a verdict under 25B2.
Justice Georges: I thought first was the intent.
-: Excuse me, your Honor.
-: I thought first was the intent that the
evidence of intent was really slim
and if you combine that with the second,
the personal characteristics.
-: Well, yes, your Honor.
However, I would say that Judge Sanders was stopped
from concluding that the evidence of intent was weak
as this court concluded in direct appellate review
the evidence of the defendant's intent.
-: Again, I'm testing my memory.
Ian MacLean: Yes, your Honor.
-: I think that was on the sufficiency issue.
-: Yes, your Honor.
So the court noted that
after it had concluded that the correct mems era for arson
is, it's a general intent crime with malice,
not specific intent.
The court then noted in an entire paragraph,
the evidence of the defendant's general intent
with malice was overwhelming.
That was this court's word under-
-: It was on harmless error issue, Right?
-: Excuse me, your Honor.
-: That was on harmless error.
-: Well, yes, your Honor, but the court,
the majority of the court did note that
even if we were to consider the error issue preserved,
it was harmless.
-: Right, right.
We did write.
It was overwhelming.
Evidence of intent was overwhelming.
-: Yes, your Honor.
So I would respectfully say that that-
Justice Wetland: Given the light
most favorable to the Commonwealth, right?
-: Well, your Honor, the court then goes on
from that paragraph where they described the general intent
as being overwhelming to analyze the sufficiency
under the specific intent instruction that was given.
And that's where the court really evaluated the evidence
in the light most favorable to the Commonwealth.
-: But wouldn't that have been in the light most favorable
to the defendant if we're looking for an area?
Patrick Levin: Yes, yes. -: Yeah.
-: Yes, thank you, your Honor.
Thank you, your Honor.
So I would say that the issue of the strength
of the evidence on intent was raised, litigated, addressed,
essential to the conviction,
and the defendant had appellate review as this,
we're talking about what happened during appellate review.
So what I would say Judge Sanders was stopped from-
-: I guess this is the part that becomes the rub.
Because if we're doing that on the direct appellate review,
is the judge limited to looking at it
in the light most favorable to the Commonwealth
under Rule 25?
Because if she's not,
why can't she go back and say,
this isn't overwhelming and this is a really close case.
And then go on to do the analysis
about whether or not
this would be consonant with justice.
-: Well,
your Honor,
I'd respectfully say you're inviting trial judges
to then second guess this court in every case.
And now the finality of direct appellate review
becomes almost meaningless because every defendant-
-: You could say that,
but I know we've had cases before
where I believe it was the Woodward case where,
I know that was some time ago,
but Chief Justice Marshall said,
we've gone back to look at how many times
we've gone through this
and it wasn't an overwhelming number of times
that trial judges have gone back
and revisited the underlying jury verdict.
So it's not like we're opening floodgates here.
-: I hear what you're saying, your Honor.
And when the court looked at that,
at that point in time that the Woodward opinion was,
which I think was 99, if my memory's correct,
I'd say it's a different, it's a different world now.
And if you openly acknowledge and embrace
trial judiciary's ability to second guess
this court whenever they want,
you're undermining this court itself
and you're undermining the finality
of direct appellate review.
-: We cannot take away from our caution
that this is supposed to be done sparingly.
-: Correct, your Honor.
Correct, your Honor.
So I mean, here, Judge Sanders,
from the Commonwealth's perspective
ignored direct estoppel at least twice
and then decided Brown could be applied
retroactively as well.
So extending the message to the trial judiciary
that that's not an abuse of discretion
tells them that they can second guess this court
whenever they want.
-: Well here's my concern and my confusion,
or I should say my concern.
Judge Sanders gives us four reasons for doing what she did.
And let's just say I agree with you on the Brown issue
and on the jury instruction issue that that's out.
We've decided that she's stopped.
But looking at the first two, right,
and saying the evidence of intent
and then the personal characteristics.
If we were to say that
there is nothing in Pagan that says
it has to be limited to what the expert testified
to at trial,
that this wasn't an abusive discretion
to listen to or take in this evidence.
On the first two issues,
the intent issue and the personal characteristics,
wouldn't that be enough
to support her decision
under Rule 25?
-: Hypothetically, yes it would be, your Honor.
However, I'm gonna push back
on the defendant's personal characteristics to start
and just remind the court that Pagan was limited to
one expert that testified at trial
and that expert's report,
which elaborated on their testimony.
So at least that expert was subjected
to the crucible of cross-examination.
Here we have not just the one expert
that testified at trial,
but we have an entirely different expert
that didn't testify.
Now, she wouldn't be allowed,
no trial judge would be allowed
to allow a motion for a new trial under Rule 30
on those materials alone
without at least an evidentiary hearing.
I mean, here we didn't even have an opportunity
to challenge those opinions
that were put forward in those expert reports.
So this case is categorically different than Pagan,
although the Commonwealth maintains that Pagan,
even Pagan was wrongly decided,
and the judge shouldn't have been allowed
to look at outside material from the trial record at all.
But if the court's not willing to revisit Pagan,
then here this case is another step past Pagan
that the court really should not permit.
As to the intent
argument in her evaluation of the evidence on intent,
I put forward, your Honor,
that she's again evaluating the intent as specific intent,
and it's basically the same error
that she made during the original trial.
Well this court let us all know
arson, because it's a common law crime when it was codified,
they were incorporating the common law provisions of arson,
and it's a general intent crime.
So all of her analysis
looking at whether the defendant intended the consequences,
that's specific intent analysis.
And that's not the correct analysis for arson
in the Commonwealth,
here in the Commonwealth it's general intent.
We don't concern ourselves
with whether she intended the downstream consequences.
And that's the analysis that Judge Sanders did here.
And I'd say-
-: So what about this analysis?
So again, the overwhelming,
you remind me if I'm wrong,
was on general intent as it relates to sufficiency.
The majority found that it wasn't preserved,
and even if it were but on, it's not preserved
that the case was not about an accident
and that the Commonwealth's whole theory of the case
was an intent to light the fire.
And the Commonwealth's evidence of what happened afterwards
was probative of that intent,
including the disagreement on the facts
as it relates to the locked door.
All well and good.
But why under 25B2
can't she look at consonant with justice
and the intent more broadly?
It's not an answer, it's a question.
-: Yes, your Honor.
I'd say for two reasons.
First of all, the Commonwealth's position,
and it would take this court reversing
some of its prior cases, is that 25B2, in the scheme,
is really only appropriate between the time of the verdict
and when the case enters direct appellate review.
That's where 25B2 should be.
That's where it should happen.
The court has sort of muddled and allowed
Rule 25B2 to slide in with Rule 30's post direct appeal.
And I point you to, your Honor,
I see I'm about, I've expired my time.
Can I complete the answer?
-: [Chief Justice Budd] Of course.
-: Thank you.
And see if you take a look back at Gilbert
from years ago when former Chief Justice Gantz
was on the trial bench,
and he did a similar sort of thing
allowing a 25B2 after direct appeal.
But what he did there was say,
okay, this is a Rule 30 issue.
There was a problem in the murder one instruction here,
that problem doesn't infect the rest of the case,
only the aggravator to murder one.
This case is really old,
so Commonwealth what I'm gonna do is tell you
I'm gonna allow this motion for new trial,
or you can accept a reduced verdict to murder two.
Right?
And that case, that Gilbert case, has sort of led,
I think to some muddled thinking about 25B2
applying after post direct appeal.
When really that what, then trial court Judge Gantz,
did was really something that's inherent in the Rule 30
was instead of allowing a full motion for new trial,
I'm gonna reduce it to an area
where this error of law didn't infect the case.
So that would be a situation
where you would see a 25B2 type reduction
in verdict post direct appeal.
But here we're not saying that there was,
or Judge Sanders didn't say there was any sort of error
at all that infected the case.
She's just decided not consonant with justice
and the Commonwealth would say that power
is properly limited to the trial judge
from the moment that the trial concludes until the case
enters direct appellate review.
And it's appropriate for them to have it there
because they sought and presided over the evidence itself.
And there may be a situation where they need
to reduce the verdict as a result.
But here the case entered direct appellate review
went through direct appellate review was affirmed.
The victim's family was put through all of that.
This case, this court has repeatedly said that
direct appellate review means something.
The finality of convictions mean something,
not just to the victims and the families of the victims,
to the Commonwealth itself and to deterrence.
Direct appellate review has to mean something.
We can't allow trial judges to then
two years later, 10 years later, 20 years later,
rip open the wound and decide,
well, I feel terrible for this victim
and her hard luck upbringing,
and as a result, I'm now gonna reduce the conviction.
That can't be something that we allow here.
Direct estoppel applies to 25B2
as this court recently said in Arias.
Judge Sanders disregarded that
in three of the four bases
that she relied upon in reducing this verdict.
And that's why she abused her discretion.
Thank you.
-: Thank you.
All right, Attorney Levin.
-: Good morning.
May I please the court,
Patrick Levin on behalf of Melissa Pfeiffer.
I would like to start with the place that Mr. MacLean ended
because this was the chief ground
on which they opposed the verdict reduction below
a claim that the judge was not legally permitted
to reduce a verdict after the case
had already been reviewed on appeal.
They didn't make that argument in their brief.
That argument is waived on appeal
and it's not an appropriate consideration
for this court to reverse the judgment below.
Moving to the issues that are appropriately
before the court,
Rules 25 and 30 vest broad discretion in trial judges
to ensure that justice is done in every case.
And contrary to what the Commonwealth said,
there is at least one case, Carter,
where this court explicitly said
that the review conducted under Rule 25B2
and the review conducted by this court
under section 33E are identical.
And this holding goes all the way back
to Commonwealth versus Gaul den,
which is this court's first case construing Rule 25B2,
this second sentence motion of Rule 25B2.
And they looked to the reporter's notes,
which specifically say the purpose of this rule
is to confer on trial judges the same discretion
that this court has in capital cases.
So this is what the analysis is
you take a broad view, a holistic view, of the entire case,
the facts and the law,
and you make a determination
about whether justice has been done.
Yes, your Honor.
-: But counsel, wouldn't our discretion be limited
in a 33E case, or in a second case after
we already had full appellate review.
If it came up again through a gatekeeper function,
if it was first degree murder,
we wouldn't have 33E reviews.
So why isn't she then in the same position we would be in?
Which is we can't do, she couldn't do it 25.
-: Well, the reason is that this court
never conducted the 33E review in this case
because it wasn't a capital case.
Justice Cypher: Yeah, but it-
-: And so that question has never been addressed
by any court prior to this motion,
which it's a different legal question, right?
So the question that this court addressed
on the direct appeal
is there's an error in the jury instructions.
Was that error sufficient as a matter of law
to require reversal of the conviction?
And the court said, no.
There's no substantial risk of a miscarriage of justice.
-: Isn't the logic a little bit odd?
I know what our case law says,
but under Rule 30, of course,
it's timeless and we're looking for interest of justice.
Rule 25B2 is directed to the trial judge.
So now we have a situation 15 years later,
trial judge has long since retired
and goes to the RAJ and the RAJ either does it or
appoints someone.
That new judge never saw or heard or touched the witnesses
or saw anything about the trial.
Patrick Levin: Yeah.
-: And isn't that a little peculiar?
-: Well, I agree that would be a little peculiar.
And I do think there's a very big difference
between addressing a motion to the trial judge
who saw the evidence
and addressing a motion to the judge,
a judge who never saw the evidence.
And of course, you know, that's what this,
to the extent that this court has discerned a difference
between the analysis under Rule 25
and the analysis under Section 33E,
that's what it is, which is,
we are at a disadvantage here
because we didn't get to see this trial.
But the trial judge did get to see the trial.
-: All right, so take the trial judge out of it.
Are you saying that we would accommodate
that through our standard of deference,
whether it be trial judge or non trial judge on a 25B2?
-: Your Honor, I haven't thought carefully about this
before standing up today,
but I'm not sure that it would be appropriate
to address a Rule 25 motion based
on the weight of the evidence
to a judge who didn't hear the evidence.
Justice Gaziano: Okay.
-: But obviously that's not our situation here.
So I do wanna speak just generally
about the Commonwealth's direct estoppel claim.
-: There's a case called Commonwealth versus Watkins.
Did you address that?
Patrick Levin: I don't recall that case.
-: Okay.
That seems to me to be a case on sufficiency
where we talked about direct estoppel as well.
-: I'm not familiar with it your Honor.
-: It would use our sufficiency
jurisprudence or just sufficiency discussion
to say there was estoppel on that.
-: I'm not familiar with that case, your Honor.
But the point I wanna make about estoppel is
the thing that the judge is foreclosed
from reconsidering is the correctness
of this court's holdings.
And so the judge could not reconsider the question
of whether the evidence was sufficient.
The judge could not reconsider the question of whether
the error in the jury instructions
created a substantial risk of a miscarriage of justice.
The judge, writ large,
is not allowed to decide that
this court's holdings are wrong,
that the direct appeal is wrongly decided.
And that's the language in Arias
and that's the language that cites back to Sanchez for that.
That's what estoppel is.
And of course, the judge in this case did not
second guess the court's holdings.
-: Well, I mean the judge doesn't come right out and say,
I think the SJC got it wrong.
But when you look through the factors
that were listed in the decision,
there there is
an aroma
that the sufficiency wasn't enough
because it was focused on the first issue
saying it was really weak,
really weak evidence of intent.
Where on Pfeiffer, we said there was overwhelming-
Patrick Levin: Yes.
-: Evidence of intent.
Patrick Levin: So-
-: Just let me get the other two.
There was a re visitation of the jury instructions
in the issue of giving the alternative theory.
And I think more dramatically,
there was this notion that
it seemed to be infused in the decision
that the judge felt badly about the timing of Brown.
And that if this case were just a little bit older,
this defendant would've gotten the benefit of that.
And there was this repeated reference
to the temporal proximity of trial in Brown.
So how can we not come away with the feeling that
this is exactly what estoppel is supposed to do?
Is to not have these things be revisited.
-: Well, I think the case
that most clearly demonstrates that is Arias itself.
So if you look at what happened
in Commonwealth versus Arias,
that's a case where the appeals court
makes a decision about a jury instruction
on defense of another.
They say, now this is important,
the appeals court's holding is
that instruction wasn't wrong.
Okay?
And now the defendant comes back nine years later says,
this instruction plus my youthful immaturity
justifies a Rule 25 reduction.
And what the court says
is that the judge correctly concluded
that principles of estoppel precluded revisiting issues
that substantially have been decided previously.
The instructions in that case
were previously found to be correct.
In this case the instructions
were previously found to be erroneous,
but not to create a substantial risk
of a miscarriage of justice.
So the judge, in considering,
so it's important also to keep in mind
that the judge's four factors in this case
interrelate, all reinforce each other,
and all speak to this question
of whether the mental state possessed by Ms. Pfeiffer
merited a conviction of murder.
-: I know your answer.
If we disagree with two out of the four,
is it an abusive of discretion?
-: No.
And I said this at the hearing,
is that just on the weight of the evidence
and the mitigating circumstances,
those two factors alone would've sufficed.
-: So sufficiency is different than weak.
-: Oh, it's very different.
I mean, in the sufficiency analysis,
this court views the evidence
and draws all possible inferences
in the light most favorable to the Commonwealth.
But there's certainly,
and I wanna speak
because I think it really speaks to this question
about this question of the locked door
that Justice Low mentioned.
So there was sufficient evidence
to conclude that Ms. Pfeiffer set this fire
and then locked the door behind herself on her way out,
thus preventing anyone else from escaping the building.
That's how the Commonwealth
characterizes the evidence in their brief.
But the evidence did not strongly support that proposition.
In fact, if you look at Mr. Brewer's testimony,
he says, we had this fight,
then I left and went to sell et-shirts at a bar.
I came back and she had locked me out.
And I talked to her through the window for a while
and then she told me that my friend had called me.
I went to go see my friend.
I was gone for a while and then I came back
and that's when the fire is happening.
He's already locked out of the house
long before the fire started.
Justice Cypher: Well I don't understand
what difference that makes.
-: Because if she locked the door
earlier in the evening
and just didn't remember that it was locked
on her way out of the house,
that's a very different situation
in terms of what her, you know, what her mental state was.
And if you look to the
transcript of-
-: Still had to leave and open the door.
-: Well so, but the evidence suggests-
-: And make a decision then to lock it again.
Patrick Levin: No. -: No.
-: The evidence suggests that the door remains locked.
-: But she still knows that, correct?
-: Well this is where her personal limitations
come into play in this case also, obviously.
And if you look at the transcript of the interrogation
that the jury had this part of the transcript
in front of them.
At record of appendix,
I think it's at page 72.
And she explains that
they taught her in school that if there's a fire
you close all the doors.
And that's why the door was closed
as she was leaving the building.
And of course that's a very different context.
But this is where the limitations that this person has
come into play.
-: So is the point you're trying to make,
just so that we don't lose it.
Patrick Levin: Yes, I'm sorry.
-: Okay.
The point you're trying to make is
the difference between overwhelming evidence,
taking all the evidence in the light most favorable
to the Commonwealth on general intent
is different than how she might,
Judge Sanders might have felt about intent
in the way the case was actually tried.
-: Right.
And this is a key point
and I thank you for bringing me back to it because
this question of general intent versus specific intent.
The question for Judge Sanders is not,
am I confident in retrospect
that Ms. Pfeiffer is guilty of the crime of arson?
That is the sitting as a second jury
that this court says she's not supposed to do.
The question is,
am I confident in light of the entire case
that justice was done at this trial?
And so the fact that the specific intent instruction,
which I wanna note
has been in the Superior Court model jury instructions
going back at least to 1995.
There's a case out of this court in 2011 or 12,
Commonwealth versus Tran
that favorably quotes that instruction,
although it's not a holding,
that specific intent is required,
but they do the sufficiency in that.
So everyone involved in this case
understood for the entire life of the case
right up until this court's opinion was released
that arson was a specific intent crime.
Justice Gaziano: Let me ask you
about the outside evidence.
Patrick Levin: Okay, yes.
-: We've never held one way or the other on,
we've held it on 33E.
We've done it in practice at least.
-: Well, yeah.
So you-
-: I think, I did it in Dow, there's other cases,
But we've never held on rule 25B2.
Cause it seems to me that 25B2
as someone that used to get these in droves.
It's quite a different animal if we just,
if the defense's attorney says,
hold on a minute, I need to have my person examined.
We're gonna come back to you
and can I have funds for that examination?
Patrick Levin: Right, right.
-: And then we're gonna have a real 25B2.
-: Yeah, I understand.
And so I don't agree with your Honor first,
that the court has never addressed this because Pagan,
although it was a first degree murder case,
what this court was reviewing
was the judge's order reducing the verdict under rule 25.
And it said that the judge properly considered
evidence outside the trial record, including,
and it doesn't say limited to it says including,
the report of the expert who had testified.
-: But a testifying expert, but yeah.
But I'm talking about something that's completely outside.
-: Well, so that's what I'm...
but just to come to the point,
which is that this is not new evidence
in the sense that it is unrelated to the defense at trial.
It didn't exist at the time of trial.
I didn't submit anything on this motion
that I didn't get out of the clerk's file.
These are the two expert reports
from the two experts who examined Ms. Pfeiffer before trial
in contemplation of the trial in this case.
And it's very important to note also
that in terms of what Judge Sanders considered
from Dr. Fife's report, all she considered is
Dr. Fife agrees with Dr. Dicataldo
about what these diagnoses are
and in fact rendered a decision that was, an opinion,
that was somewhat more favorable to the defense.
And then the Commonwealth decides not to call her.
But I just wanna point out, going back,
this connects up because all these factors interrelate
to the specific intent question
that if Attorney Doyle had known
that specific intent was not required,
he would've tried this case very differently.
And perhaps given what he knew from Dr. Fife's report,
might have gone and found a different expert
and tried to assert a criminal responsibility defense.
And this in turn connects up to this question of
the holding of Commonwealth versus Brown.
Because the reason that we don't apply
that holding to cases tried before its issuance
is that the case might have been tried very differently.
And of course that's true,
although the Commonwealth hasn't identified
any way it would be true in this case.
-: Here it's I think it's fairly evident
we have a second degree murder
based on malice.
Patrick Levin: Yes.
-: Is one option, than we have
second degree felony murder,
then we have involuntary manslaughter-
Patrick Levin: Yes.
-: On wanton and reckless conduct.
And as you appreciate,
we've got the jury instructed on third prong malice
and wanton and reckless conduct.
And I'm sure their eyes are spinning
and as anybody else that reads these, right?
And they say, aha, this is felony murder,
Take felony murder out,
then they're gonna have to grapple
with third prong versus wanton and reckless.
It would've been tried differently.
-: Well, but-
-: Pre-Brown Post-Brown, correct?
-: But so what I'm saying is
the state of the law at the time of trial
is everyone understands
that arson is a specific intent crime
and it can support a conviction of felony murder.
The state of the law
at the time Judge Sanders decided the motion is
now we know that arson is a general intent crime,
but it can't support a conviction for felony murder.
So in terms of fundamental justice,
in terms of what's fair, I don't think-
-: That's going more to your prospective Brown argument
because the reason you say
it would've been tried differently
is that's the language in Brown.
Why it was prospective, correct?
-: Yes.
Yes.
But you know, in terms of if the judge
is considering the justice of the conviction,
she thinks it's not just under the law
as I gave it to the jury,
for the reasons that she states
regarding the strength of the evidence
and the error in her instructions, right?
So the jury is given these two options
of the specific intent at the time of the fire,
or we don't need to make any finding at all
about her intent at that time.
We can just rest on the truly overwhelming evidence
that she didn't take any action after the fire had begun,
which is of course overwhelming evidence
of involuntary manslaughter.
But the judge told them that that was evidence of murder.
And so the judge says, well, this is not a fair conviction.
-: I don't know how anybody can say with certainty,
what is overwhelming evidence of third prong
versus wanton and reckless. (laughs)
-: Well, the third prong malice question, I agree.
Justice Gaziano: Right.
-: But I'm setting the third prong malice question aside
because the jury didn't find her guilty on that theory.
Justice Gaziano: Right.
-: So the judge says, well this is not a fair conviction
under the law as I gave it to the jury.
And it's also not a fair conviction
under the law of the Commonwealth
as I'm sitting here now.
And so to say that because
we thought the evidence of general intent
was overwhelming even though
that's not how the jury found her guilty.
But now it only requires general intent,
and so this is a fair conviction
because the law changed subsequent to the trial
without also taking into consideration
that this court has also decided
that it's not just for a murder conviction
to be returned without a finding of malice.
That doesn't make sense to me either.
And, you know, in terms of whether
she could consider the error in the instructions,
which she knows is not sufficiently serious
to require reversal as a matter of law.
But whether she can consider it in conjunction
with her view of the trial evidence and decide
that there's a concern that justifies a verdict reduction.
I just wanna point the court again to a case
that is cited in my brief Commonwealth versus Llano,
which is a 33E case
where the court does precisely that.
That we perceive no reversible error at trial,
but the charge on intoxication and premeditation,
you know, although it may not constitute reversible error
was somewhat deficient
and in light of the slim evidence of premeditation,
we're going to order a reduction in the verdict
to secondary degree murder.
It's the exact same analysis.
And you know,
in terms of whether she was stopped from doing that,
I think Arias makes a hundred percent clear that she's not,
because the very last paragraph of Arias
says, you know,
so the defendant makes this
stopped jury instruction claim and also
in combination with this claim
about his personal circumstances.
And the judge denies the motion and the court doesn't say,
well estoppel we're finished,
and you don't go further than that.
It says, the judge noted that the defendant
was 20 years old at the time
and presented no evidence of personal circumstances
or distinctive attributes that persuaded the judge
that the verdict of murder in the second degree
was unsupported by the evidence.
Viewing the claim of youthful immaturity either alone
or in combination with the alleged instructional error,
the defendant has not identified any abuse of discretion.
So the court recognizes even in the Arias case,
the very strongest case
for the Commonwealth on this estoppel question,
the court recognizes
that it would've been within the judge's discretion
to consider these two things in combination
and make a decision about it.
I wanna make sure to point the court to the cases
that I think clearly demonstrate
that this court has already rejected
the Commonwealth's claim about how Brown should apply here.
-: [Chief Justice Budd] Are they in your brief?
-: Yes.
-: [Chief Justice Budd] Do you want to tell us?
-: So the cases are Ring Wilson, Finny
in the Rule 25 and Rule 30 context.
And then in the section 33E context,
it's Castillo and Alcides.
And unless there are further questions.
Justice Cypher: I have one question.
Patrick Levin: Yes.
-: And that is, if the defendant had brought this
Rule 25 motion and Rule 30 motion
before we had had direct appellate review,
the judge could have done this, could she have not?
-: Yes, certainly.
And the Commonwealth recognized that below.
But I want to make sure that you understand
that she couldn't have brought this motion
before the court reviewed the case
because the judge still thought that she was right,
that failure to extinguish a fire was arson.
And of course, I'm way over my time,
so unless there are more questions, thank you very much.