The Supreme Court of Pennsylvania

opinion

As background, in July 2002 Ernest R. Wholaver, Jr. was charged with multiple sexual offenses for alleged conduct involving his two daughters, Victoria and Elizabeth, the latter of whom was still a minor at the time the charges were lodged.

On behalf of Elizabeth, Wholaver’s wife, Jean Wholaver, obtained an order under the Protection From Abuse Act which included provisos that Wholaver was evicted from the family’s Middletown residence, with no right or privilege of entry, and was prohibited from possessing or acquiring firearms.

Wholaver subsequently took up residence with his mother, father, and younger brother, Scott Wholaver, in Cambria County.

Just after midnight on December 24, 2002, Wholaver set out for the Middletown residence with Scott Wholaver.

While his brother waited in the vehicle about a block away, Wholaver approached the house; cut telephone and other wires leading to it; forcibly gained entry; and shot Jean, Victoria, and Elizabeth to death with a pistol, leaving Victoria’s nine-month-old girl, Madison, alive but alone and unattended.

Wholaver and his brother then drove to Clearfield County, where Wholaver discarded the pistol, a shotgun, and other potentially incriminating items at a remote location.

Following the discovery of the bodies and Madison (who survived) approximately twenty-eight hours after the killings, police obtained search warrants for the Middletown residence to gather evidence. They later executed warrants to search Wholaver’s person, his vehicle, and the Cambria County home where he was living.

Wholaver was arrested and charged with three counts of first-degree murder, and the Commonwealth furnished notice that it intended to pursue imposition of the death penalty.

Prior to trial, Scott Wholaver pled guilty to third-degree murder and agreed to cooperate as a Commonwealth witness. He led police to the Clearfield County location, from where they retrieved the firearms and other evidence. Also before trial, the prior sexual offense charges were consolidated with the murder cases. Wholaver secured a change of venire, in light of pre-trial publicity.

At trial, the Commonwealth presented Scott Wholaver as a central witness. He testified that, following Jean Wholaver’s decision to seek a divorce, Wholaver stated that he would shoot her.

He then described the brothers’ nocturnal trip to the Middletown residence on December 24th, indicating that Wholaver had claimed that he wished only to retrieve his dog. The trip involved furtive activities and was corroborated by a surveillance video obtained by police from a convenience store located mid-way between Cambria County and Middletown.

Scott Wholaver testified that, upon arrival in Middletown, he was told to stop the vehicle to permit Wholaver to access the rear seat; Wholaver then directed him to proceed to a location about a block from the Wholaver residence; he parked the vehicle there and waited as Wholaver proceeded toward the residence; Wholaver returned five to ten minutes later appearing shaken; Wholaver instructed him to drive to the remote Clearfield County location where he saw the shotgun in the rear of the vehicle and watched Wholaver shuttle from the vehicle to the woods; and Wholaver told him to repeat a false story if asked about his whereabouts during the time period spanning these activities.

The Commonwealth also offered testimony from several prisoner-witnesses, who described various incriminatory statements by Wholaver, as well as evidence of Wholaver’s jail-based efforts to hire a West Virginia man to kill the father of Victoria’s child, Francisco Ramos, and to fabricate evidence suggesting that Mr. Ramos had killed Jean, Victoria, and Elizabeth Wholaver.

A prisoner-witness involved police at an early stage in these efforts, and undercover officers documented Wholaver’s subsequent solicitation attempts. This conduct was acknowledged by the defense in closing argument, where Wholaver’s trial counsel suggested that the attempt reflected only an effort by a distraught husband and father to avenge the killing of his family against the man that he believed was the perpetrator.

Parenthetically, the defense theory of the case recognized that Mr. Ramos was not the killer but asserted that another man, who had also been intimately associated with Victoria, had perpetrated the murders.

Ballistics evidence was presented to connect the pistol found in Clearfield County to the killings (although the association could not be made firmly, because both the firearm and bullets were degraded). Further, the Commonwealth presented evidence that the pistol was registered to Wholaver’s uncle.

The Commonwealth also introduced the preliminary hearing testimony of Elizabeth and Victoria Wholaver from the sexual assault case under the forfeiture-by-wrongdoing exception to the hearsay rule, on the theory that they were killed to prevent their testimony.

Wholaver was convicted of first-degree murder pertaining to each of the killings, and of the separate crimes of killing prosecution witnesses, conspiracy, reckless endangerment (of Madison), burglary, and criminal solicitation related to his attempt to have Mr. Ramos killed. He was acquitted of the sexual offenses, however.

In the penalty phase of the trial, the Commonwealth pursued the in-perpetration-of-a-felony, grave-risk, multiple-murders, and protection-from-abuse-violation aggravators, incorporating the evidence adduced in the guilt phase. Wholaver pursued the no-significant-history-of-prior-criminal-convictions and catch-all mitigators.

The jury found all of the aggravators, at least some of the jurors accepted Wholaver’s proffered mitigators, and the jurors unanimously returned three death sentences as a consequence of their individual weighing determinations.

Execution set for man in his family’s murder