Prosecutors often look to a deceased individual’s statements made prior to a murder to show that the defendant is guilty. These statements may point to a history of violence between the deceased and the defendant, such as “[Defendant] bought a gun and pointed it at me,” or a statement may show that the deceased feared the accused, “I’m scared of what [Defendant] might do to me.”

Prosecutors often rely heavily on these types of INADMISSBLE statements to help prove a defendant’s guilt. In addition, many Pennsylvania criminal trial judges, who misunderstand complex rules of evidence, like hearsay rules, will allow such statements.

A recent Pennsylvania Supreme Court case definitely puts the nail in the coffin on allowing prosecutors to use such statements, especially in murder cases.


In July 2021, the Pennsylvania Supreme Court overturned a first degree murder conviction and life sentence and ordered a new trial. See Commonwealth v. Fitzpatrick, July 23, 2021.

Fitzpatrick was convicted of murdering his wife by drowning. The day before the alleged murder, the wife wrote a note and sent an email to a co-worker stating that if something happened to her, her husband was responsible. Both the note and email were admitted at trial and used heavily by the prosecution to point to Fitzpatrick’s guilt during opening and closing statements .

The defendant-husband claimed that the death was caused by an ATV accident; the wife accidentally drowned after she was thrown from the ATV, into a nearby creek.

After trial, the defendant filed a post trial motion for judgment of acquittal, which the trial judge granted. The trial judge found that even though the wife’s note and email were allowed, the evidence was insufficient to convict.

The prosecution appealed to the Superior Court which reinstated the conviction. The lower appeals court held that the evidence was sufficient to result in a conviction. It also held that the wife’s note was admissible, but the email was not, and despite the error, it was harmless.

On appeal, the PA Supreme Court agreed with the husband and ordered a new trial. The Court explained that a victim’s statement about fear of the defendant or even prior violence by the defendant is extraordinarily problematic. Such statements are hearsay and can be admitted under very strict circumstances, such as cases where a defendant raises self-defense, or claims the death occurred due to an accident or suicide. The Court found that even in these limited circumstances, a victim’s statement will usually be INADMISSIBLE because they simply aren’t relevant.


A murder victim’s fearfulness of the defendant is not relevant to prove the defendant’s intent or motive. Period. The only thing such statements do, is prove a victim’s state of mind, and nothing more, and therefore, they aren’t relevant to any issue in a murder case. The burden of proof lies solely with the prosecution, which in a first degree murder case, must prove that the defendant committed the murder with specific intent to kill.

The statement in the Fitzpatrick case, “If something happens to me – [Defendant],” showed that the wife feared the husband. But in a first degree murder case, where the prosecution must prove intent, the wife’s statement (as to her fearfulness) has ZERO relevance on the accused’s motive or intent. Rather, what would be relevant are the accused’s own statements about his or her specific intent, i.e., “I’m going to kill [deceased].”

Prosecutors cannot rely on a deceased person’s statements to prove their case. Instead, they must use admissible evidence to win a case. If they cannot do so, a NOT GUILTY verdict is appropriate.