The Commonwealth could not elicit testimony about private incriminating conversations between a criminal defendant and his wife, an en banc Pennsylvania Superior Court panel held in Com. v. Davis, __ A.3d __ (No. 2726 EDA 2013, filed July 29, 2015). Charles Davis and an alleged co-conspirator were charged with murder and other offenses in connection with a home invasion and shooting. At Davis’ preliminary hearing, the Commonwealth was permitted to question Davis’ wife, Nicole Walton, about conversations she had with Davis after the incident in which he made numerous admissions about his involvement. No third parties were present during the conversations. Davis moved to exclude the conversations as protected by the spousal testimony/confidential communications privileges of 42 Pa. C.S. §§ 5913 and 5914. The trial court granted the motion and the Commonwealth appealed.
An en banc Superior Court panel affirmed, agreeing with the trial court that Walton’s testimony was inadmissible. Writing for the unanimous panel, Judge Allen rejected the Commonwealth’s argument that the testimony was admissible under a crime fraud exception for confidential communications made in furtherance of criminal activity. Judge Allen cited the Court’s prior decision in Com. v. Savage, 695 A.2d 820 (Pa. Super. 1997), as controlling, noting that in that case the Court declined to extend to criminal proceedings the crime fraud exception to privileged marital communications that may be invoked in civil matters. The Court also emphasized the express statutory language of 42 Pa. C.S. §5914, noting that the Commonwealth failed to meet its “burden of overcoming the presumption that Davis’ communications with his wife, which occurred outside the presence of third parties, were confidential.”