## Facts

- Javan McBurrows was charged with homicide and related offenses arising from the fatal abuse of four-year-old Michael Davis, who was in McBurrows’s care.
- The Commonwealth also charged McBurrows with assault-related offenses involving other minor children in the home.
- Before trial, McBurrows moved to suppress portions of his wife’s testimony under Pennsylvania’s confidential marital-communications privilege.
- Mrs. McBurrows’s proposed testimony included that she saw McBurrows with a mason’s level and saw the level later in the family van along with a bag from which a BB rifle protruded.
- The Commonwealth sought to elicit testimony regarding Mrs. McBurrows’s observations and conduct connected to disposal of the mason’s level alleged to have been used in the abuse.
- The suppression court excluded portions of the wife’s testimony as privileged, and the Commonwealth took an interlocutory appeal.

## Issues

1. Whether Pennsylvania’s confidential marital-communications privilege bars a spouse’s testimony describing the other spouse’s nonverbal conduct and the witness-spouse’s observations concerning possession and disposal of an alleged murder weapon.
2. Whether prior Pennsylvania precedent extending the privilege to certain observed spousal conduct should be followed or rejected.

## Decision

- The Superior Court of Pennsylvania reversed the suppression order and remanded for further proceedings.
- The court held the privileged category is limited to confidential marital “communications,” not a spouse’s observations of noncommunicative conduct.
- The court concluded that testimony about observed acts related to the mason’s level and its disposal was admissible.
- The court expressly overruled prior precedent to the extent it treated observed nonverbal conduct of this type as privileged.

## Legal Principles

- The confidential marital-communications privilege protects confidential communications made between spouses during the marriage and intended to be confidential.
- Evidentiary privileges are construed narrowly because they restrict the factfinder’s access to relevant evidence.
- Nonverbal conduct is not privileged unless it is intended as a confidential communicative act; mere observation of a spouse’s acts is generally outside the privilege.
- A spouse’s testimony describing physical facts observed (e.g., possession and disposal of an object) is admissible absent a showing that the conduct was meant to convey a confidential message.

## Conclusion

The court limited Pennsylvania’s confidential marital-communications privilege to truly communicative, confidential exchanges and held that a spouse may testify about observed nonverbal conduct concerning an alleged murder weapon, reversing suppression and remanding for trial proceedings.


Commonwealth v. McBurrows, 779 A.2d 509 (Pa. Super. Ct. 2001)