Com. v. Pal, N. ( 2015 )

J-A26021-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NEIL PAL
Appellant No. 207 MDA 2015
Appeal from the Judgment of Sentence September 5, 2014
in the Court of Common Pleas of Lackawanna County
Criminal Division at No.: CP-35-CR-0002269-2013
BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED NOVEMBER 17, 2015
Appellant, Neil Pal, appeals from the judgment of sentence imposed
after his conviction, following a jury trial, of murder of the first degree in
violation of 18 Pa.C.S.A. § 2502(a) and criminal conspiracy to commit
murder of the first degree in violation of 18 Pa.C.S.A. § 903(c). We affirm.
We take the following facts and procedural history from the trial
court’s January 9, 2015 opinion and our own independent review of the
record.
Appellant’s conviction stems from the shooting death of Frank Bonacci.
Appellant’s friend Jason Dominick and Bonacci were romantic rivals over Keri
Tucker, Dominick’s on-again off-again girlfriend.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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The January 9, 2015 trial court opinion summarized the following
circumstantial and direct evidence, which was offered at trial:
[Appellant] and Dominick were “best friends” since
childhood, with [Appellant] operating as the “leader” and
Dominick as the “follower” in their relationship. [Appellant] was
well aware of the animus between Dominick and Bonacci,
Dominick’s past effort to physically beat Bonacci, and his texted
threat to “snuff him.” As evidenced by Dominick’s bizarre text
messages to Keri Tucker within twenty-four hours of Bonacci’s
murder, Dominick was unraveling emotionally and
psychologically because of his obsession with Ms. Tucker. Only
Dominick’s close friend, [Appellant], was known to own or
possess wad cutter bullets and handguns, including an
unregistered .38 caliber handgun that [Appellant] acquired from
Cameron Kashmer and which has never been located.
A heavily intoxicated Bonacci was last seen alive in
[Appellant’s] company as they walked past [Appellant’s] own
vehicle to Bonacci’s Jeep after [Appellant] had arranged to
isolate Bonacci in the company of [Appellant] and Dominick.
[Appellant] provided the transportation to the secluded murder
site, as documented by the University of Scranton surveillance
videotape depicting Bonacci’s Jeep approaching the Step Falls
access road. Twenty-seven minutes later, [Appellant] began
contacting Maribeth Castaldi for a ride, and she retrieved
[Appellant] and Dominick in close proximity to Step Falls. The
wad cutter bullet removed from Bonacci’s head had the same
lands and grooves measurements and cannelures characteristics
as the discharged wad cutter projectiles discovered in
[Appellant’s] garage. As the Commonwealth aptly notes, it
would have been physically impossible for one person to place
the fifty pound boulder on the accelerator of Bonacci’s vehicle
and to shift the Jeep into gear while it was fully engaged,
without being trapped in the rapidly descending Jeep or
otherwise seriously injured. Finally, at the conclusion of his
interrogation by Detective Pappas, [Appellant] admitted that the
investigators had “a solid case” and “know what happened.”
[Appellant’s] post-murder actions designed to deflect
attention from him and to conceal the commission of the murder
provide further evidence of his intent and state of mind.
Immediately following the bloody murder of a purported close
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friend, [Appellant] acted perfectly normal, tickled Sean Baress to
awaken him, enjoyed a breakfast with friends, and even flirted
with their waitress. Knowing full well that Bonacci was dead,
[Appellant] placed calls to Bonacci’s cell phone, and posted non-
private messages on Bonacci’s Facebook wall inquiring as to his
whereabouts. In his statements, text messages and social
media communications with family and friends of Bonacci,
[Appellant] feigned ignorance of Bonacci’s condition or location
and acted as though Bonacci was still alive. [Appellant]
attempted to perpetuate that ruse by attending Bonacci’s wake
and participating in search parties for him.
(Trial Ct. Op., 1/09/15, at 30-31).
On July 20, 2013, the Dunmore Police Department initiated a missing
person investigation for Bonacci. (See N.T. Trial, 6/11/14, at 39). On July
27, 2013, Bonacci’s body was found in the front passenger side of his Jeep
Liberty at the bottom of a ravine in the Step Falls area of Scranton,
Pennsylvania. (See id.). Scranton Police Department detectives found a
large rock placed on the accelerator of Bonacci’s vehicle and tire acceleration
marks above the steep embankment. (See N.T. Trial, 6/10/14, at 220-22).
While autopsying Bonacci’s body, Gary Ross, M.D., retrieved a wad cutter
bullet from Bonacci’s left posterior neck, which Dr. Ross opined was fired
from a gun less than one inch from the wound. (See id. at 32, 38, 40). On
August 1, 2013, Appellant, and co-conspirator, Dominick, were arrested and
charged with the murder of Bonacci.1
____________________________________________
1
Originally, Appellant was charged with three counts: criminal homicide,
criminal conspiracy to commit homicide, and accomplice liability to the
general count of homicide. At the Preliminary Hearing on October 11, 2013,
(Footnote Continued Next Page)
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On December 2, 2013, Appellant filed an omnibus pretrial motion
seeking, among other things, a change of venue and individual voir dire.
The trial court denied Appellant’s request for a change of venue without
prejudice for Appellant to renew his request based on the responses of the
venire during selection reasoning that:
Any determination as to whether the pre-trial publicity in
this case prevents the selection of a fair and impartial jury can
only be made based upon the prospective jurors’ responses
during voir dire regarding their exposure to media reports, and
their ability to set aside any preliminary opinions that they may
have formed and still render a verdict based solely on the
evidence....
(Trial Court Opinion, 3/14/14, at 41).
Additionally, with respect to individual voir dire, the trial court decided
that:
In accordance with Pa.R.Crim.P. 631(E)(2)(b), the
prospective jurors will initially be examined collectively by the
undersigned, with members of the venire thereafter being
questioned individually depending upon their responses to earlier
inquiries. Although the undersigned will take the lead in
conducting the collective and individual examination of the
prospective jurors, counsel for the Commonwealth and
[Appellant] will be afforded the opportunity to pose questions to
the jurors as well….
(Id. at 42-43)(citation omitted).
_______________________
(Footnote Continued)
the Commonwealth withdrew the first count, charging that Appellant had
fired the gun. (See N.T. Preliminary Hearing, 10/11/13, at 6).
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Jury selection for Appellant’s trial commenced on June 2, 2013.
Throughout the jury selection process, prospective jurors were first
questioned collectively by the court, the prosecutor, and defense counsel,
and, based upon their responses, certain prospective jurors were thereafter
subject to individual voir dire. (See N.T. Trial, 6/02/13, at 7–110, 139–73).
During voir dire, ninety-eight of the 101 prospective jurors
acknowledged that they had seen, heard, or read news reports or overhead
or participated in any conversations regarding Bonacci’s death and the arrest
of Appellant. (See id. at 14-15). Of these ninety-eight prospective jurors,
eighteen indicated that they had fixed opinions based on what they had
heard, seen, or read. (See id. at 16–19). The trial court dismissed these
prospective jurors for cause. (See id. at 110-35). An additional four
prospective jurors indicated that they had formed fixed opinions as to
Appellant’s guilt or innocence based on what they had heard, read, saw, or
talked about on social media in relation to the case. (See id. at 149–51).
These four prospective jurors were also stricken for cause. (See id. at 158-
59).
After jury selection, the trial court denied the defense motion for a
change of venue or a change of venire reasoning that:
Although some members of the panel did indicate that
they were exposed to media reports and had formed fixed
opinions based on those reports or conversations that they have
had, they were excused from the panel and we did have more
than enough jurors at the end of the day to select the panel. We
have selected [twelve] principal jurors and four alternatives. We
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had about ten extra jurors above and beyond that so, therefore,
the motion for change of venue or change of venire will be
denied.
(Id. at 195).
On June 12, 2014, the jury found Appellant guilty of murder of
the first degree as an accomplice and guilty of criminal conspiracy to
commit murder of the first degree. (See N.T. Trial, 6/12/14, at 202–
03). On September 5, 2014, the trial court sentenced Appellant to life
imprisonment on Count 1, murder of the first degree, and to not less
than twenty nor more than forty years on Count 2, conspiracy to
commit murder of the first degree, to be served consecutively.
Appellant filed a post-sentence motion on September 11, 2014,
and supplemental post-sentence motion on September 30, 2014. The
trial court conducted oral argument2 on the post-sentence motions on
November 26, 2014.
Appellant timely filed his Rule 1925(b) statement on February 10,
2015.3 See Pa.R.A.P. 1925(b). On February 9, 2015, the trial court issued
an order in response to Appellant’s Rule 1925(b) statement which relied on
the memorandum and order dated January 9, 2015. See Pa.R.A.P. 1925(a).
____________________________________________
2
A copy of the transcript of the November 26, 2014 oral argument was not
included in the certified record.
3
Appellant’s 1925(b) statement was dated February 4, 2015 and filed and
docketed on February 10, 2015.
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Appellant raises the following questions for our review:
A. Whether, in a Pennsylvania case of first impression, the
trial court abused its discretion in refusing to grant a change of
venue/venire in light of the inflammatory and widespread pretrial
publicity in this case, particularly the social media including a
Facebook page dedicated to the victim, which publicity was
presumptively prejudicial to Appellant and because there was no
“cooling off” period between the co-defendant’s trial–at which he
falsely claimed Appellant was the actual shooter–and Appellant’s
trial?
B. Whether, in a Pennsylvania case of first impression, the
trial court abused its discretion in refusing to allow defense trial
counsel to conduct individual voir dire of the prospective jurors
privately, particularly in light of well-settled law mandating that
voir dire on prejudice due to pretrial publicity must be done out
of the presence of the other jurors and the pervasive and highly
prejudicial social media attendant to this case, which was
insufficiently explored with the prospective jurors during the
limited voir dire?
C. Whether the evidence is insufficient as a matter of law to
sustain the guilty verdicts of first-degree murder and criminal
conspiracy or, alternatively, the verdicts are against the weight
of the evidence because the Commonwealth failed to prove the
essential elements of these crimes beyond a reasonable doubt
given that mere presence at the scene of a crime alone is not
enough to implicate a party in its commission?
D. Whether the trial court abused its discretion in refusing to
preclude the admission of certain “bad acts” evidence against
the Appellant at trial where the prejudicial impact of such
evidence significantly outweighed any probative value?
(Appellant’s Brief, at 6-7) (most capitalization omitted).
In his first issue, Appellant argues that the trial court erred in denying
Appellant’s motion for a change of venue or change of venire. (See id. at
16-17). He claims that the trial court should have found that social media
constituted pretrial publicity for purposes of a change of venue request, and
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that the social and conventional media coverage of this case was so
extensive, sustained, and pervasive, that it should have created a
presumption of prejudice. (See id.). We disagree.
Our standard of review is well established:
An application for a change of venue is addressed to the
sound discretion of the trial court, which is in the best position to
assess the community atmosphere and judge the necessity for a
venue change, and its exercise of discretion will not be disturbed
in the absence of an abuse of discretion. The mere existence of
pretrial publicity does not warrant a presumption of prejudice. If
pretrial publicity occurred, its nature and effect on the
community must be considered.
Commonwealth v. Chambers, 685 A.2d 96, 103 (Pa. 1996), cert. denied,
522 U.S. 827 (1997) (citations omitted).
Prejudice will be presumed if a defendant shows that the publicity “(1)
was sensational, inflammatory, and slanted toward conviction, rather than
factual and objective; (2) revealed the defendant’s prior criminal record, if
any, or referred to confessions, admissions or reenactments of the crime by
the defendant; or (3) derived from official police or prosecutorial reports.”
Commonwealth v. Tharp, 830 A.2d 519, 529 (Pa. 2003), cert. denied, 541
U.S. 1045 (2004) (citations omitted). If a defendant can prove the
existence of one of these circumstances, a change of venue is still not
warranted unless “defendant also demonstrates that the pretrial publicity
was so extensive, sustained, and pervasive that the community must be
deemed to have been saturated with it, and that there was insufficient time
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between the publicity and the trial for any prejudice to have dissipated.” Id.(citation omitted).
Here, Appellant argues that the media coverage in newspapers,
television, internet media, relevant Facebook pages, and websites devoted
to the Bonacci murder was inflammatory, pervasive, and undeniably
prejudicial. (See Appellant’s Brief, at 18-19). Appellant argues that in
addition to conventional media coverage of the murder and trial, the social
media generated by the victim’s family4 in particular was “highly
emotionally-charged, moving, sensationalistic, pervasive, accessible to and
accessed by literally thousands and thousands of viewers in the area,
slanted toward [Appellant’s] conviction, and ultimately presumptively
prejudicial to his right to a fair trial by a fair and impartial jury.” (Id. at
21).
The trial court denied Appellant’s motion for a change of venue holding
that he had not demonstrated that the conventional pre-trial news reports
caused actual prejudice or that the media coverage was presumptively
prejudicial because it was sensational, inflammatory and slanted toward
conviction. Furthermore, the trial court held that even if the media coverage
was found to be prejudicial, Appellant was not entitled to a change of venue
____________________________________________
4
Appellant refers specifically to the website www.frankiesvoice.org and the
Facebook page www.Facebook.com/FrankiesVoice that Bonacci’s friends and
family created. (See Appellant’s Brief, at 19).
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because he cannot show that the prejudicial publicity saturated the
community, reasoning that “[l]ess than 22% of the jury panel stated that as
a result of the conventional and social media publicity, they had formed fixed
opinions about [Appellant’s] guilt or could not otherwise set aside that pre-
trial publicity.” (See Trial Ct. Op., 1/09/15, at 46; see id. at 43).
Additionally, the trial court held that even if social media constituted
pretrial publicity for the purposes of a change of venue request, Appellant
still did not establish that a change of venue was required because the
information from social media was not “so extensive, sustained, and
pervasive that the community must be deemed to have been saturated with
it.” (Id. at 50; see id. at 49).
We conclude that, the trial court did not abuse its discretion in denying
Appellant’s motion for a change of venue. As the trial court correctly pointed
out, less than 22% of the venire persons formed fixed opinions about
Appellant’s guilt based upon conventional and social media publicity, and all
jurors seated avowed that they could decide the case based solely on the
trial evidence. See Tharp, supra at 529-30 (holding that a trial court was
warranted in concluding that no change of venue was required where thirty-
four of one hundred prospective jurors indicated that they had formed a
fixed opinion because of pretrial publicity). Accordingly, the trial court was
well within its discretion in deciding that pretrial publicity did not require a
change of venue. Appellant’s first issue does not merit relief.
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Appellant next argues that the trial court abused its discretion in
refusing to allow defense counsel to conduct individual voir dire of the
prospective jurors pursuant to Pennsylvania Rule of Criminal Procedure
631(E)(1)(a) because of the allegedly prejudicial pretrial publicity concerning
this matter. We disagree.
Our Rules provide that in non-capital cases the trial court
is vested with discretion in the method by which the voir dire
examination shall be conducted. Absent an abuse of such
discretion, a reviewing court cannot disturb the trial court’s
actions. Even in cases with pre-trial publicity only a palpable
error resulting in abuse of discretion justifies reversal of a denial
of individual voir dire.
Commonwealth v. Rovinski, 704 A.2d 1068, 1073 (Pa. Super. 1997),
appeal denied, 723 A.2d 1024 (Pa. 1998) (citations and quotation marks
omitted).
Pennsylvania Rule of Criminal Procedure 631 provides in relevant part:
(E) In capital cases, the individual voir dire method must be
used, unless the defendant waives that alternative. In non-
capital cases, the trial judge shall select one of the following
alternative methods of voir dire, which shall apply to the
selection of both jurors and alternates:
(1) Individual Voir Dire and Challenge System
(a) Voir dire of prospective jurors shall be conducted
individually and may be conducted beyond the
hearing and presence of other jurors.
* * *
(2) List System of Challenges
* * *
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(b) Prospective jurors may be examined collectively
or individually regarding their qualifications. If the
jurors are examined individually, the examination
may be conducted beyond the hearing and presence
of other jurors.
Pa.R.Crim.P. 631(E)(1)(a), (2)(b).
Appellant attempts to analogize his case to Commonwealth v.
Johnson, 269 A.2d 752, 757 (Pa. 1970), arguing that the prejudicial pretrial
publicity in this matter required each juror to be questioned outside the
hearing of the other jurors. (See Appellant Brief, at 37-38). However, in
Johnson, the pretrial publicity, which the Pennsylvania Supreme Court
decided required individual voir dire, included “detailed accounts of
appellant’s prior record” and deliberately inflammatory remarks by the
district attorney. Johnson, supra at 756.
Upon review of the record, we conclude that this matter is more
closely analogous to Rovinski, where this Court held that the trial court did
not abuse its discretion when it made a general inquiry into whether any
jurors had prior knowledge of the case and then “dismissed any juror with
prior knowledge who did not unequivocally deny having a fixed opinion and
unequivocally affirm the ability to be fair and impartial.” Rovinski, supra at
1073.
Here, in addition to inquiring as to prior knowledge from any sources
(including social media) and dismissing those potential jurors with fixed
opinions about the matter, the trial court allowed counsel to conduct
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individual voir dire with certain jurors who answered that they had prior
knowledge about the case. (See N.T. Trial, 6/02/13, at 7–110, 139–73).
Accordingly, the trial court’s method of voir dire was well within its
discretion in this matter. Appellant’s second issue does not merit relief.
Appellant’s next argument is two-fold. First, he argues the evidence
presented at trial is insufficient as a matter of law to sustain the guilty
verdict, and in the alternative, he argues that the verdicts are against the
weight of the evidence. (See Appellant’s Brief, at 48-62). We disagree.
Upon review of the record, we conclude that Appellant has waived his
argument that the verdict is against the weight of the evidence. Appellant
failed to distinguish between his sufficiency and weight of the evidence
claims and to provide any separate legal argument in support of the weight
of the evidence issue. (See id.) Accordingly, we deem his weight of the
evidence issue waived.5 See Commonwealth v. Birdseye, 637 A.2d 1036,
1039-40 (Pa. Super. 1994), affirmed, 670 A.2d 1124 (Pa. 1996).
Our standard of review for a challenge to the sufficiency of evidence is
well-settled:
____________________________________________
5
Moreover, after a thorough review of the record in this matter, we conclude
that the trial court did not abuse its discretion in denying Appellant’s motion
for a new trial on the basis that the verdict is against the weight of the
evidence. We agree that the evidence of Appellant’s guilt was not so
conjectural and equivocal that the jury’s guilty verdict shocked the
conscience of the court. See Trial Ct. Op., 1/09/15, at 37-39; see also
Commonwealth v. Childs, 63 A.3d 323, 327 (Pa. Super. 2013), appeal
denied, 70 A.3d 808 (Pa. 2013).
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The standard we apply in reviewing the sufficiency
of the evidence is whether viewing all the evidence
admitted at trial in the light most favorable to the
verdict winner, there is sufficient evidence to enable the
fact-finder to find every element of the crime beyond a
reasonable doubt. In applying [the above] test, we
may not weigh the evidence and substitute our
judgment for the fact-finder. In addition, we note that
the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt
may be resolved by the fact-finder unless the evidence
is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its
burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the
entire record must be evaluated and all evidence
actually received must be considered. Finally, the
[finder] of fact while passing upon the credibility of
witnesses and the weight of the evidence produced, is
free to believe all, part or none of the evidence.
Further, in viewing the evidence in the light most favorable
to the Commonwealth as the verdict winner, the court must give
the prosecution the benefit of all reasonable inferences to be
drawn from the evidence.
Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014)
(citations omitted).
Here, the jury found Appellant guilty of murder of the first degree
under an accomplice liability theory, in violation of 18 Pa.C.S.A. §§ 2501(a),
2502(a) and criminal conspiracy to commit murder of the first degree in
violation of 18 Pa.C.S.A. § 903(c).
To obtain a first-degree murder conviction, the
Commonwealth must demonstrate that a human being was
unlawfully killed, the defendant did the killing, and the defendant
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acted with a specific intent to kill. Moreover, the jury may
convict the defendant as an accomplice so long as the facts
adequately support the conclusion that he or she aided, agreed
to aid, or attempted to aid the principal in planning or
committing the offense, and acted with the intention to promote
or facilitate the offense. The amount of aid need not be
substantial so long as it was offered to the principal to assist him
in committing or attempting to commit the crime. However,
simply knowing about the crime or being present at the scene is
not enough. In evaluating whether the evidence was sufficient
to support the conviction, we bear in mind that: the
Commonwealth’s burden may be sustained by means of wholly
circumstantial evidence; the entire trial record is evaluated and
all evidence received against the defendant considered; and the
trier of fact is free to believe all, part, or none of the evidence
when evaluating witness credibility.
Commonwealth v. Markman, 916 A.2d 586, 597-98 (Pa. 2007)
(citations and quotation marks omitted).
To prove conspiracy, the trier of fact must find that: 1) the
defendant intended to commit or aid in the commission of the
criminal act; 2) the defendant entered into an agreement with
another to engage in the crime; and 3) the defendant or one or
more of the other co-conspirators committed an overt act in
furtherance of the agreed upon crime. In most cases of
conspiracy, it is difficult to prove an explicit or formal
agreement; hence, the agreement is generally established via
circumstantial evidence, such as by the relations, conduct, or
circumstances of the parties or overt acts on the part of co-
conspirators. In the case of a conspiracy to commit homicide,
each member of the conspiracy can be convicted of first-degree
murder regardless of who inflicted the fatal wound.
Commonwealth v. Johnson, 985 A.2d 915, 920 (Pa. 2009), cert. denied,
562 U.S. 906 (2010) (citations and quotation marks omitted).
Here, Appellant argues that “evidence of an accused’s mere presence
at the scene of the crime, standing alone, cannot establish guilt beyond a
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reasonable doubt, and [the fact] that Appellant did not disclose the murder
to the police is hardly evidence of guilt (as opposed to a mistake in
judgment or moral/ethical lapse).” (Appellant’s Brief, at 41). Further,
Appellant argues that the evidence shows that he and Bonacci were friends
and that he would have no motive to kill Bonacci. (See id. at 40). We
disagree.
The evidence presented by the Commonwealth at trial, viewed in the
light most favorable to the Commonwealth as the verdict winner, revealed
that Appellant and Dominick intended to and entered into an agreement to
unlawfully kill Bonacci, Dominick killed Bonacci in furtherance of this
agreement, and Appellant’s actions aided Dominick in killing Bonacci.
Appellant’s participation included providing Dominick with a gun and bullets;
driving Bonacci and Dominick down a dirt road to the murder site; helping
Dominick roll a rock onto the accelerator of the vehicle to cause it to drive
down an embankment after the shooting; and making false statements to
others, including police, in an attempt to deflect attention and conceal the
commission of the murder. (See N.T. Trial, 6/03/14, at 115, 136, 187-88,
247-49; N.T. Trial, 6/05/14, at 7-13, 29-30, 47-48; N.T. Trial, 6/09/14, at
28-196; N.T. Trial, 6/10/14, at 123-29, 193, 203-24, 260-84; N.T. Trial,
6/11/14, at 4-24).
These facts are sufficient to sustain a finding that Appellant acted in
aid of his co-conspirator Dominick in unlawfully killing Bonacci, and did so
with the intent to promote or facilitate his murder. See Johnson, supra at
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920; Markman, supra at 597-98. Accordingly, Appellant’s conviction for
murder of the first degree and conspiracy to commit murder of the first
degree are supported by sufficient evidence. See Harden, supra at 111.
Appellant’s third issue does not merit relief.
Finally, Appellant contends that the trial court abused its discretion in
admitting “bad acts” evidence. (See Appellant’s Brief, at 62-70). We
disagree.
“The admission of evidence is within the sound discretion of the trial
court and will not be reversed absent an abuse of that discretion.”
Commonwealth v. Begley, 780 A.2d 605, 620 (Pa. 2001) (citations
omitted). “Discretion is abused when the course pursued represents not
merely an error of judgment, but where the judgment is manifestly
unreasonable or where the law is not applied or where the record shows that
the action is a result of partiality, prejudice, bias or ill will.”
Commonwealth v. Martinez, 917 A.2d 856, 859 (Pa. Super. 2007)
(citations omitted).
Under Pennsylvania Rule of Evidence 404(b),
evidence of prior bad acts or unrelated criminal activity is
inadmissible to show that a defendant acted in conformity with
those past acts or to show criminal propensity. However,
evidence of prior bad acts may be admissible when offered to
prove some other relevant fact, such as motive, opportunity,
intent, preparation, plan, knowledge, identity, and absence of
mistake or accident.
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Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009), cert.
denied, 559 U.S. 1111 (2010) (citing Pa.R.E. 404(b)(1) and (2)).
Here, the trial court admitted evidence of Appellant’s acquisition of a
.38 caliber handgun, a photograph of Appellant displaying a handgun in the
waistband of his pants, and Appellant’s ownership and discharge of
wadcutter bullets pursuant to the “opportunity” provision in Pa.R.E.
404(b)(2). (See Trial Ct. Op., 1/09/15, at 62). The trial court reasoned
that such evidence was admissible under the “opportunity” exception to
establish that Appellant had the means to provide Dominick with the gun
and bullets used to kill Bonacci. (See id. at 63).
The trial court’s admission of the evidence of Appellant’s acquisition of
a .38 caliber handgun, possession of guns and bullets similar to the ones
used to kill Bonacci, and a photograph of Appellant displaying a handgun in
the waistband of his pants was well within its discretion. See
Commonwealth v. Williams, 640 A.2d 1251, 1260-61 (Pa. 1994)
(affirming admission of evidence showing a weapon in defendant’s
possession where it tended to prove that defendant had a weapon similar to
the one used in perpetration of the crime).
Appellant next contends that the admission of the “b’hai” tattoos of
Appellant and Dominick were irrelevant and highly prejudicial because the
Commonwealth allegedly introduced this to show that he and Dominick were
gang members. However, Appellant did not object to admission of the
“b’hai” tattoos either before or during trial, and accordingly has not
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preserved the claim of error. See Pa.R.E. 103(a); Pa.R.A.P. 302(a) (issues
cannot be raised for first time on appeal). As such, this claim is waived on
appeal. See Commonwealth v. Parker, 847 A.2d 745, 749-50 (Pa. Super.
2004).
Finally, Appellant contends that evidence of his demeanor during
breakfast at Chick’s Diner within hours of the murder should have been
precluded because it had no relevance other than prejudicing Appellant
before the jury. (See Appellant’s Brief, at 66). The trial court permitted
such evidence, holding that it was admissible to demonstrate Appellant’s
conscious effort to divert focus of the investigation from himself and to
conceal his involvement in Bonacci’s murder. (See Trial Ct. Op., 1/09/15, at
66).
The law does not require a court “to sanitize [a] trial to eliminate all
unpleasant facts from the jury’s consideration where those facts are relevant
to the issues at hand and form part of the history and natural development
of the events and offenses for which the defendant is charged.”
Commonwealth v. Page, 965 A.2d 1212, 1220 (Pa. Super. 2009) appeal
denied, 74 A.3d 125 (Pa. 2013) (citation omitted). Based on the foregoing,
we conclude that the trial court properly exercised its discretion when it
allowed testimony regarding Appellant’s actions in the diner within a few
hours of the murder. See Begley, supra at 620; Martinez, supra at 859.
Accordingly, Appellant’s fourth issue lacks merit.
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J-A26021-15
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2015
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