Com. v. Hamlette, J. ( 2016 )

J-S15008-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JONATHON HAMLETTE,
Appellant No. 1790 EDA 2014
Appeal from the Judgment of Sentence Entered May 20, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006120-2013
BEFORE: BENDER, P.J.E., OLSON, J., and PLATT, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 13, 2016
Appellant, Jonathon Hamlette, appeals from the judgment of sentence
of an aggregate term of life imprisonment without the possibility of parole,
imposed after a jury convicted him of second-degree murder and related
offenses. Appellant contends that the trial court abused its discretion when
it denied his Pa.R.Crim.P. 600 motion to dismiss, and when it granted the
Commonwealth’s motion to permit evidence of Appellant’s prior bad acts
under Pa.R.E. 404(b). After careful review, we vacate Appellant’s judgment
of sentence and remand for a new trial.
The trial court summarized the evidence presented at Appellant’s trial,
as follows:
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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The evidence adduced at trial established that on January
24, 2010, the decedent, William Worthy, was stabbed twice,
once in the heart, at the entrance to his residence, 2813 North
Bambrey Street, at roughly 8:30[]am.
In the early hours of January 24, 2010, Sharma Sanford
was near the corner of 25th Street and Lehigh Avenue in search
of drugs, namely crack-cocaine. There, [Appellant] approached
Ms. Sanford asked her if she “was looking to get high.” The two
proceeded to 2813 North Bambrey Street to purchase crack-
cocaine. [Appellant] asked Ms. Sanford to purchase the drugs
from William Worthy because, as told to Ms. Sanford, there had
previously been an incident between [Appellant] and the
decedent. Ms. Sanford was the only one to enter the residence,
and she purchased the drugs from the decedent; [Appellant] and
Ms. Sanford proceeded to a residence on Oakdale Street.
[Appellant] told Ms. Sanford that the Oakdale Street residence
was his home and, once they entered, they proceeded to walk
through the living room toward the basement. In the basement,
Ms. Sanford saw a single bed. Both proceeded to smoke the
drugs which they had recently purchased. Ms. Sanford testified
that she became uncomfortable and wanted to leave after
smoking the drugs. Along with being in an unfamiliar place with
a person whom she had just met, Ms. Sanford testified that her
uneasiness was also rooted in the weapon, a knife, which
[Appellant] had on a shelf near him. Upon leaving, Ms. Sanford
saw [Appellant] take the knife from the shelf and place it in his
back pocket. [Appellant] and Ms. Sanford left the Oakdale
Street residence, headed to another residence on Bonsall Street,
and then back to the decedent's residence at 2813 North
Bambrey Street to smoke more drugs.
When the two arrived, Ms. Sanford was once again the
only one to enter the residence to purchase additional drugs.
Mr. Worthy let Ms. Sanford in, took her to the second floor, and
sold her the drugs. After Ms. Sanford purchased the singular
bag which she and [Appellant] were going to share, Ms. Sanford
removed a portion of the drugs from the baggie for herself.
Within the residence were three people, William Worthy and two
ladies, one of whom was asleep in another room. Shortly
thereafter, there was a knock at the door and Ms. Sanford told
Mr. Worthy that the person at the door was probably Johnny2
and that he should let him in. Mr. Worthy went to the door and
let [Appellant] in, and both men went to the second floor. When
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[Appellant] was upstairs, Ms. Sanford gave [Appellant] the
drugs.
______________________
2
When they first met, [Appellant] told Ms. Sanford that his
name was Johnny.
______________________
Ms. Sanford testified that [Appellant] remarked to Mr.
Worthy that the amount of drugs in the bag was light and then
asked Mr. Worthy if he would give [Appellant] more drugs. Mr.
Worthy declined and, after the group smoked what they had in
the second-floor room, [Appellant] asked to speak to Mr. Worthy
privately downstairs. After a few minutes, Ms. Sanford heard
tussling and went to the top of the stairs. Ms. Sanford testified
that she saw Mr. Worthy struggling with someone, but she could
not tell who the other person was. Ms. Sanford ran back into the
second-floor room to grab the other two ladies. While she was
in the second-floor room, Ms. Sanford heard Mr. Worthy yell out,
“He stabbed me. He got me for three bags.”3 Ms. Sanford left
the second-floor room and went downstairs to aid Mr. Worthy up
the stairs. As Mr. Worthy was walking upstairs, he started
removing his shirt. Once upstairs, Ms. Sanford saw a wound in
Mr. Worthy’s chest which was “gushing out” blood. Ms. Sanford
was questioned about both the statement she later gave to
homicide detectives and her testimony at the preliminary
hearing. On both occasions, Ms. Sanford said that the person
tussling with Mr. Worthy was [Appellant]. According to Ms.
Sanford, those two statements were wrong because she just
assumed that it was [Appellant] tussling with Mr. Worthy
because he was the last person speaking to Mr. Worthy at the
door before Mr. Worthy was stabbed.4
______________________
3
Jay Cunningham also testified. She was the [] third
female at the residence. She testified that she heard Mr.
Worthy scream out twice, “He stabbed me.” However, Ms.
Cunningham failed to identify [Appellant] at a lineup and in
court as the male who was at 2813 North Bambrey Street.
4
Dr. Edwin Lieberman testified as an expert in forensic
pathology. Dr. Lieberman testified that the decedent,
William Worthy, died of a stab wound to the chest.
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______________________
Davina Phillips, the lady who had previously been asleep in
another room in the house, placed a call to 911. Officer Joseph
Stallbaum was the first officer to respond to the scene. Officer
Stallbaum approached the residence and saw Ms. Sanford and
Ms. Phillips standing near the entrance to the residence. Mr.
Stallbaum went to the second-floor room to survey Mr. Worthy's
condition. Once medical support arrived, Mr. Stallbaum went
downstairs to speak to both ladies. Ms. Sanford detailed to
Officer Stallbaum [Appellant’s] clothing, name, and physical
features. She also told him the address to which [Appellant] had
probably fled; Officer Stallbaum then relayed this flash
information to police dispatch and to the next officer arriving on
the scene, Officer Eric Cohn. Officer Cohn went to the 2500
block of West Oakdale Street to find [Appellant]. In the
meantime, Officer Stallbaum secured the scene and waited for
Officer Cohn to relay any results regarding his search for
[Appellant]. After Officer Cohn surveyed the 2500 block of West
Oakdale Street and did not find a person matching the
description of [Appellant], Officer Cohn came back to 2813 North
Bambrey Street to escort Ms. Sanford and Ms. Phillips to the
Homicide Division.
On the way to Homicide, Ms. Sanford told Officer Cohn that
the suspect, whom she called Johnny, also was known to hang
out at a property located at 2744 North Bonsall Street and that
[Appellant] worked at a barbershop, called Ernie's Upper Cuts,
which is located at 25th Street and Lehigh Avenue. The property
on Bonsall Street is located just a few blocks from the crime
scene. Officer Cohn drove past the suspect's place of
employment, a barbershop at 25th Street and Lehigh Avenue,
and the 2744 North Bonsall Street property. Ms. Sanford did not
see [Appellant] during this canvass. As a result, Officer Cohn
took both ladies to Homicide.
Officer Ryan Clement testified that he was patrolling on the
morning in question in an adjoining district. With the flash
information previously provided at the outset of his shift, Officer
Clement noticed [Appellant] at a gas station located at the
corner of Broad and Thompson Streets. Officer Clement rolled
down his vehicle window and asked [Appellant] where he was
coming from; [Appellant] responded that he was previously at
his brother's house, located at 24th and Oakdale Streets. Based
on this response, Officer Clement exited his vehicle and asked
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[Appellant] if he had any identification; [Appellant] responded
that he did not but stated to Officer Clement that his name was
John, Johnny or Jonathon. Officer Clement called into his district
dispatch to have someone contact the homicide detectives from
the 39th district to determine whether the witness was available
for a show-up.
Officer Cohn and Detective Nordo transported Ms. Sanford to
the 1700 block of 17th Street to see if she could identify
[Appellant] as the perpetrator. Ms. Sanford identified
[Appellant] as the actor in the robbery-stabbing.
…
Officer Edward Fidler of the Crime Scene Unit testified
regarding the evidence recovered at the crime scene. … Officer
Fidler found blood both inside and outside 2813 North Bambrey
street. Inside the property were droplets of blood spanning the
distance from the area near the first floor door up to the second
floor room. The blood found outside was located on the sidewalk
up the block near the corner. Officer Fidler testified that the
blood outside the residence appeared to be aspirated blood,
meaning blood which had been spit up by someone on the
sidewalk. According to Officer Fidler, the blood outside the
residence contained saliva and air bubbles and was shaped in a
manner to suggest that the blood had been projected, rather
than dripped, to the ground. All the blood samples were
collected, placed on a property receipt and sent to the Forensic
Laboratory for testing.
Lynn Haimowitz testified as an expert in DNA analysis and
forensic science. Ms. Haimowitz detailed the results of the
report which analyzed three blood samples from within 2813
North Bambrey Street and two samples outside - the first on the
porch and the second on the sidewalk in front of 2805 North
Bambrey Street. Comparing the DNA profiles developed from
the blood against two buccal swabs from the decedent and
[Appellant], two of the three samples within the residence were
determined, to a reasonable degree of scientific certainty, to be
that of the decedent. The third sample found inside 2813 North
Bambrey Street resulted in no DNA. As for the two samples
found outside the residence, both samples produced a partial
DNA profile from the same unknown male, the person being
neither the decedent nor [Appellant].
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Trial Court Opinion (TCO), 12/30/14, at 3-8 (citations to the record
omitted).
Based on this evidence, the jury convicted Appellant of second-degree
murder and possessing an instrument of crime (PIC). Appellant was
acquitted of first-degree murder. On May 20, 2014, the court sentenced
Appellant to an aggregate term of life imprisonment, without the possibility
of parole. Appellant filed a timely notice of appeal, and also complied with
the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The trial court subsequently filed a detailed Rule
1925(a) opinion. Herein, Appellant presents two issues for our review:
[(1)] Did the [trial] court commit[] an abuse of discretion by
denying Appellant’s Rule 600 motion to dismiss?
[(2)] Did the [trial] court commit an abuse of discretion by
granting the Commonwealth’s [Rule] 404(b) motion?
Appellant’s Brief at 3 (unnecessary capitalization omitted).
Appellant first challenges the court’s denial of his pretrial, Rule 600
motion to dismiss the charges against him. Our scope and standard of
review for such claims is well-settled:
In evaluating Rule 600 issues, our standard of review of a trial
court's decision is whether the trial court abused its discretion.
Judicial discretion requires action in conformity with law, upon
facts and circumstances judicially before the court, after hearing
and due consideration. An abuse of discretion is not merely an
error of judgment, but if in reaching a conclusion the law is
overridden or misapplied or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill
will, as shown by the evidence or the record, discretion is
abused.
The proper scope of review ... is limited to the evidence on the
record of the Rule 600 evidentiary hearing, and the findings of
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the trial court. An appellate court must view the facts in the light
most favorable to the prevailing party.
Additionally, when considering the trial court's ruling, this Court
is not permitted to ignore the dual purpose behind Rule 600.
Rule 600 serves two equally important functions: (1) the
protection of the accused's speedy trial rights, and (2) the
protection of society.
…
So long as there has been no misconduct on the part of the
Commonwealth in an effort to evade the fundamental speedy
trial rights of an accused, Rule 600 must be construed in a
manner consistent with society's right to punish and deter crime.
In considering these matters ..., courts must carefully factor into
the ultimate equation not only the prerogatives of the individual
accused, but the collective right of the community to vigorous
law enforcement as well.
Commonwealth v. Ramos, 936 A.2d 1097, 1100 (Pa. Super. 2007) (en
banc) (quoting Commonwealth v. Hunt, 858 A.2d 1234, 1238 (Pa. Super.
2004) (en banc)).
Rule 600(A)(2)(a) requires that trial commence within 365 days of the
filing of the written complaint.1
The mechanical run date is the date by which the trial
must commence under [Rule 600]. It is calculated by
adding 365 days (the time for commencing trial under
[Rule 600]) to the date on which the criminal complaint is
filed. As discussed herein, the mechanical run date can be
modified or extended by adding to the date any periods of
time in which delay is caused by the defendant. Once the
mechanical run date is modified accordingly, it then
becomes an adjusted run date.
____________________________________________
1
Rule 600 was revised in 2012, and the current version of the rule became
effective on July 1, 2013, prior to Appellant’s filing of his pretrial motion to
dismiss.
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If the defendant's trial commences prior to the adjusted run
date, we need go no further.
Ramos, 936 A.2d at 1102 (internal citation and footnote omitted).
Here, the Commonwealth filed two written criminal complaints against
Appellant; the first was filed on January 24, 2010, and withdrawn on
November 10, 2010. A second criminal complaint was filed on May 17,
2013. Appellant contends that the trial court abused its discretion by
calculating the mechanical run date from the date on which the
Commonwealth filed the second criminal complaint, rather than from the
date on which the first complaint was filed.
[W]hen a trial court is faced with multiple identical criminal
complaints, it must first determine whether the Commonwealth
intended to evade Rule 600's timeliness requirements by
withdrawing or having nolle prossed the charges. If the
prosecution attempted to circumvent Rule 600, then the
mechanical run date starts from the filing of the initial complaint,
and the time between the dismissal of one complaint and the re-
filing of the second complaint is counted against the
Commonwealth. However, where the prosecution has not
attempted to end run around the rule, and a competent
authority properly dismissed the case, the court must next
decide if the Commonwealth was duly diligent in its prosecution
of the matter. Where the prosecution was diligent, the inquiry
ends and the appropriate run date for purposes of Rule 600
begins when the Commonwealth files the subsequent complaint.
Commonwealth v. Peterson, 19 A.3d 1131, 1141 (Pa. Super. 2011) (en
banc).
Appellant does not argue that the Commonwealth withdrew the initial
complaint in an attempt to evade Rule 600. Instead, he contends that the
Commonwealth did not act with due diligence in prosecuting that complaint
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and, thus, the mechanical run date must commence from the filing of the
first complaint. After careful review, we disagree.
The trial court set forth the pertinent procedural history underlying
Appellant’s Rule 600 claim, as follows:
[T]he criminal complaint was filed the day of the murder,
January 24th, 2010; after several continuances, the listing for
November 10, 2010 was listed as “must be tried, no further
continuances”; the Commonwealth withdrew the complaint on
November 10, 2010; the Defendant was arrested again on April
18, 2013; and the criminal complaint in this case was refiled on
May 17, 2013.
Detective Donald Marano (Homicide Unit) testified at the pretrial
motion hearing. Detective Marano was the lead detective
handling the case…. On three separate dates - March 23, May
19 and September 15 of 2010 - the Commonwealth requested
continuances in the case because the only person capable of
identifying [Appellant], Ms. Sanford, failed to appear.
Detective Marano testified that Ms. Sanford failed to
appear for the three listed court dates. According to Detective
Marano, efforts to locate Ms. Sanford were sparse between
March 23, 2010 and November 5, 2010, five days before the
final listing. One of the few steps attempted by the police
occurred on May 19, 2010, the second listed hearing date. On
May 19, 2010, two detectives, Detectives Byard and Kane,
traveled to a Sellersville, Bucks County address on record for Ms.
Sanford to transport her to the proceeding and to serve a
subpoena. When the detectives told Ms. Sanford that they
would be transporting her to the preliminary hearing, Ms.
Sanford refused allegedly because of the lack of a child seat in
the police car for her infant child. Detective Marano testified at
this hearing regarding the statements Ms. Sanford made to both
detectives during this incident. The only other activity prior to
November 5, 2010 was one other trip, made by Detective
Marano at some point prior to the September 15th hearing,
wherein he traveled to Sellersville to locate Ms. Sanford at a
rehab in the area. Detective Marano did not know if Ms. Sanford
ever received a subpoena for the September 15, 2010 hearing.
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Roughly a month before the November 10, 2010 hearing,
Detective Marano was informed by the prior Assistant District
Attorney handling this case that Ms. Sanford had left her two
messages on her voicemail. Both voicemail messages were
played for the court. In essence, the voicemail messages
evidenced Ms. Sanford's intent to avoid testifying. The first
voicemail message left by Ms. Sanford was not time-stamped,
but it was referenced in Ms. Sanford's second voicemail. The
second voicemail was time-stamped; the message was left on
September 15, 2010.
Five days before the last scheduled hearing, the Honorable
Benjamin Lerner signed an order declaring Mr. [sic] Sanford a
material witness. On November 8, 2010, Detective Marano
placed phone calls with four separate numbers that were listed
for Ms. Sanford. Detective Marano left messages at two of the
numbers, but the calls were never returned. On November 9,
2010, Detective Marano, along with Detective Kane, traveled to
the Sellersville residence where the detectives had previously
found Ms. Sanford. Interviews with residents and workers of the
complex determined that Ms. Sanford had vacated her
apartment five weeks prior. The detectives spoke with the
apartment manager who informed them that Ms. Sanford was
working at Doylestown Hospital, to the best of his knowledge.
The detectives traveled to Doylestown Hospital; at the hospital[,]
the detectives learned that Ms. Sanford had been offered
employment, but failed to show up for one day of work. From
there, the detectives traveled to the home belonging to Ms.
Sanford's mother. The detectives also traveled to areas where
Ms. Sanford was known to be when in the midst of her drug
affliction.
Detective Marano prepared wanted posters and had them
sent to three separate districts. Detective Marano also flagged
Ms. Sanford's criminal record, attached a[] [National Crime
Information Center (NCIC)] person of interest flag to the missing
person report for her in another database, and placed the
wanted posters on two fugitive walls in the precinct waiting area.
On November 10, 2010, the detectives again went to the
residence of Ms. Sanford's mother to see if Ms. Sanford had
shown up. All results were negative and the case was withdrawn
on November 10, 2010.
[On] or about April 9, 2013, Officer Alex Montanez noticed
the wanted poster and spoke with one of the detectives from the
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homicide unit; on April 12, 2013, Officer Montanez found Ms.
Sanford and brought her in on the material witness warrant.
TCO at 8-11 (footnotes and citations to the record omitted).
Appellant avers that the above-stated facts show that the
Commonwealth failed to take “even the most basic of steps” to locate Ms.
Sanford. Appellant’s Brief at 22. He discusses several “reasonable and
conventional means” that the Commonwealth could have undertaken to
secure Ms. Sanford’s presence at the preliminary hearing, such as those
done in Commonwealth v. Ingram, 591 A.2d 734 (Pa. Super. 1991), and
Commonwealth v. Laurie, 483 A.2d 890 (Pa. Super. 1984). In Ingram,
we held that the Commonwealth acted with due diligence where police
officers attempted to serve an arrest warrant at Ingram’s last known
address; talked with his mother about the possibility that Ingram had left
town; entered Ingram’s name into criminal databases; and had officers look
for Ingram while on daily patrol in his neighborhood. Id. at 737. In Laurie,
we concluded that police acted diligently in attempting to locate and arrest
Laurie where they immediately obtained an arrest warrant; contacted
numerous members of Laurie’s family; contacted utility companies when
discovering Laurie may have relocated to a different state; placed an
advertisement with a photograph and physical description of Laurie in local
newspapers where police officers thought he may be; and placed Laurie’s
name in the NCIC and the Philadelphia Crime Information Center (PCIC) to
“circulate throughout the country and state that [Laurie was] wanted in
Pennsylvania.” Id. at 891.
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Appellant claims that the present case is distinguishable from Ingram
and Laurie. He stresses that here, the Commonwealth did not immediately
file a “material witness petition” for Ms. Sanford’s arrest; it did not contact
utility companies or the probation office to find Ms. Sanford; and it did not
have police visit “locations where [Ms. Sanford] might be found….”
Appellant’s Brief at 25, 26. Appellant asserts that instead of undertaking a
diligent search for Ms. Sanford, the Commonwealth relied “solely on the
serendipitous chance that [Ms. Sanford] would be apprehended as a result of
the addition of her name to computer [databases] and the hanging of a
wanted poster.” Id. at 26. Appellant also attacks the efforts made to locate
Ms. Sanford in the years between the withdrawal of the initial complaint and
the refiling of the second complaint. He argues that, “[o]ther than
testimony that police visited specific addresses prior to the dismissal of the
first complaint, [the] Commonwealth presented no evidence that it did so
thereafter.” Id. Appellant maintains that “at its core, the evidence
presented at the Rule 600 hearing demonstrated that the Commonwealth did
not exercise due diligence.” Id.
In response, the Commonwealth first emphasizes that in Ingram and
Laurie, the Commonwealth was searching for a criminal defendant, against
whom charges had been filed. To the contrary, here, the Commonwealth
was attempting to find a witness. As the Commonwealth explains, this
distinction undercuts Appellant’s argument that the Commonwealth should
have immediately obtained an arrest warrant for Ms. Sanford:
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Ms. Sanford was a witness, not a criminal. She was the sole
identifying witness; she did not stab the victim in the heart.
That the police did not immediately obtain a material witness
warrant and take her into custody at the first sign that she was
reluctant to testify was eminently reasonable, and properly
informed the trial court’s ruling. See [] Peterson, 19 A.3d [at]
1137 … (due diligence requires the Commonwealth to “put forth
reasonable effort,” not “perfect vigilance and punctilious care”).
Commonwealth’s Brief at 18. The Commonwealth also notes that placing an
advertisement in the newspaper with Ms. Sanford’s photograph and/or
identifying information may “have endangered Ms. Sanford, who was a
witness, not an accused….” Id. at 24 n.4.
Additionally, the Commonwealth avers that the majority of Appellant’s
argument incorrectly focuses on what the Commonwealth should have done,
rather than what it did do. As this Court stated in Laurie, “the focus of our
inquiry is on what was done, not with what should have been done.”
Laurie, 483 A.2d at 892. Upon examining the efforts undertaken by the
Commonwealth to locate Ms. Sanford and prosecute the initial criminal
complaint against Appellant, we ascertain no abuse of discretion in the trial
court’s conclusion that the Commonwealth acted with due diligence. In
particular, police officers went to Ms. Sanford’s home before the hearing on
May 19, 2010, yet Ms. Sanford refused to accompany them to court. Before
the next scheduled hearing date on September 15, 2010, a detective went to
a rehabilitation facility to find Ms. Sanford, but was unable to locate her. Ms.
Sanford called the district attorney and left two messages on or before the
September 15th hearing stating that she intended to avoid testifying.
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Before the next scheduled hearing on November 10, 2010, the
Commonwealth increased its efforts to locate Ms. Sanford. Namely, it
obtained a material witness warrant to take Ms. Sanders into custody; called
various phone numbers listed for her; visited Ms. Sanford’s residence and
her place of employment; interviewed residents and workers of her
apartment complex, as well as the apartment manager; spoke with Ms.
Sanford’s mother; and traveled to areas where Ms. Sanford was known to
frequent when she was using narcotics. Additionally, police flagged Ms.
Sanford’s criminal record, put notices in criminal databases indicating that
she was a person of interest, and placed wanted posters in several precincts.
Based on these facts, the trial court did not abuse its discretion in
concluding that the Commonwealth acted with due diligence in prosecuting
the initial criminal complaint against Appellant. It was beyond the
Commonwealth’s control that Ms. Sanford was reluctant to testify and
evaded the Commonwealth’s attempts to locate her and secure her presence
at the preliminary hearing. Because the Commonwealth exercised due
diligence before withdrawing the initial complaint, it is irrelevant whether it
acted diligently between that withdrawal and the refiling of the second
complaint. See Peterson, 19 A.3d at 1141 (“Where the Commonwealth
exercises due diligence in prosecuting the original complaint, the time period
between the dismissal of the first complaint and the re-filing of the second
complaint is irrelevant for purposes of Rule 600 and the Commonwealth is
only required to re-file within the applicable statute of limitations.”).
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Accordingly, the trial court did not abuse its discretion by denying
Appellant’s Rule 600 motion to dismiss.
Appellant next argues that the trial court erred by granting the
Commonwealth’s pretrial motion to admit evidence of his prior bad acts
under Pa.R.E. 404(b). That rule states, in pertinent part:
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other
act is not admissible to prove a person's character in order
to show that on a particular occasion the person acted in
accordance with the character.
(2) Permitted Uses. This evidence may be admissible for
another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident. In a criminal case this
evidence is admissible only if the probative value of the
evidence outweighs its potential for unfair prejudice.
Pa.R.E. 404(b)(1)-(2).
It is well-settled that,
[o]n appeals challenging an evidentiary ruling of the trial court,
our standard of review is limited. A trial court's decision will not
be reversed absent a clear abuse of discretion. Commonwealth
v. Bishop, 936 A.2d 1136, 1143 (Pa. Super. 2007) (citing
Commonwealth v. Hunzer, 868 A.2d 498 (Pa. Super. 2005)).
“Abuse of discretion is not merely an error of judgment, but
rather 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.” Id.Commonwealth v. Aikens, 990 A.2d 1181, 1184-85 (Pa. Super. 2010)
(quoting Commonwealth v. King, 959 A.2d 405, 411 (Pa. Super. 2008)).
Additionally, in regard to the admissibility of prior bad acts evidence,
our Supreme Court has explained:
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Generally, 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.
Pa.R.E. 404(b)(1). 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. Pa.R.E. 404(b)(2).
In determining whether evidence of other prior bad acts is
admissible, the trial court is obliged to balance the probative
value of such evidence against its prejudicial impact.
Commonwealth v. Powell, 598 Pa. 224, 956 A.2d 406, 419
(2008).
Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009).
At the hearing on the Commonwealth’s motion in limine to introduce
prior bad acts evidence, the Commonwealth explained the two prior bad acts
it sought to introduce. First, it described a knife attack by Appellant on
Jacob Bowling, which occurred approximately one month before the stabbing
of Mr. Worthy. The Commonwealth explained that attack, and the
similarities between it and the present case, as follows:
[The Commonwealth]: Mr. Bowling was staying at an apartment
with a friend and [Appellant] and Mr. Bowling’s friend had a
verbal argument and Mr. Bowling intervened and basically
quashed the argument.
At that point, [Appellant] left. Mr. Bowling woke up and he
was being stabbed about his torso with a knife by [Appellant].
He jumps up to try to get away from [Appellant] and [Appellant]
stabs him in the heart. So Mr. Bowling is also stabbed in the
heart. [Appellant] flees. Mr. Bowling convinces someone in the
apartment to take him for help. … [H]e wakes up several days
later in the hospital.
So that’s the 2009 stabbing, exactly one month prior to
the murder in this case. Mr. Bowling’s injuries are also
consistent with a small knife having been used.
So for [the stabbing of Mr. Bowling in] 2009 and [the
stabbing of Mr. Worthy in] 2010, we have an argument. The
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victim intervenes on behalf of the person [Appellant] is arguing
with. [Appellant] stabs the victim in the chest with a small knife.
And in both cases it’s not just stabbing him in the chest, it’s
stabbing the victim in the heart, thereby causing either death or
serious bodily injury in both of those circumstances.
N.T. Hearing, 5/6/14, at 35-37.
The second prior bad act the Commonwealth sought to introduce was
a knife attack on Sonya Cabiness that occurred approximately two years
after the stabbing of Mr. Worthy. The Commonwealth described that prior
bad act, and its similarities to the present case, as follows:
[The Commonwealth:] With respect to the 2012 incident, the
victim in that case is the then[-]girlfriend of [Appellant]. Her
name is Sonya Cabiness…. [Appellant] and she have a verbal
dispute. She attempts to walk away from him. He grabs her by
the jacket and stabs her in the chest and then says, “That’s
right, bitch, I will kill you.” He fled the scene and the victim
called 911 and reported the crime.
In that case also, a small knife was used to stab Ms.
Cabiness in the chest. She did not sustain serious bodily injury
as a result of that stabbing.
Id. at 37.2
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2
We note that the testimony that Mr. Bowling and Ms. Cabiness gave at trial
differed from the Commonwealth’s description of their attacks in several key
regards. For instance, Ms. Cabiness did not testify that she was stabbed in
the chest or heart during Appellant’s assault; instead, she stated that when
Appellant attacked her, he swung his arm “towards the middle of her chest
slightly on the right side of her body” causing “a little slash” on her chest.
N.T. Trial, 5/16/14, at 102-103. Additionally, while Mr. Bowling testified that
the knife Appellant used was “[a] steak knife[,]” it was not a small knife as
the Commonwealth asserted. Id. at 123. Mr. Bowling stated that it was
“[o]ne of the long ones[,]” and with his hands approximated the knife to be
about 18 inches long. Id. While we point out the differences between the
Commonwealth’s offer of proof at the pretrial hearing, and the testimony
(Footnote Continued Next Page)
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The Commonwealth argued before the trial court, and reiterates on
appeal, that the prior bad acts evidence involving Mr. Bowling and Ms.
Cabiness was admissible to prove Appellant’s identity as the individual who
stabbed Mr. Worthy, and also to show Appellant’s intent to kill Mr. Worthy.
The trial court agreed with the Commonwealth and granted its motion to
admit the testimony of Mr. Bowling and Ms. Cabiness for these purposes.
See N.T. Trial, 5/16/14, at 97 (trial court’s instructing jury that Mr.
Bowling’s and Ms. Cabiness’ testimony was being offered for the limited
purposes of showing that Appellant was “the person who stabbed William
Worthy and to prove … his intent in stabbing Mr. Worthy”).
Appellant first argues that the trial court abused its discretion by
deciding to admit this prior bad acts evidence for the purpose of proving his
identity as the person who stabbed Mr. Worthy. In Commonwealth v.
Shively, 424 A.2d 1257 (Pa. 1981), our Supreme Court held that evidence
of prior crimes may be admissible,
_______________________
(Footnote Continued)
actually presented at trial, Appellant did not object at trial or seek the
court’s reconsideration of the admissibility of the prior bad acts evidence in
light of Mr. Bowling’s and Ms. Cabiness’ trial testimony. He also does not
argue on appeal that the court should have precluded the prior bad acts
evidence upon hearing the testimony of these two witnesses at trial.
Instead, he frames his issue as a challenge to the court’s pretrial ruling on
the Commonwealth’s motion in limine, and only discusses the prior bad acts
evidence as summarized by the Commonwealth during the pretrial
proceeding. Thus, we will limit our review to the record of the pretrial
hearing.
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to prove other like crimes by the accused so nearly identical in
method as to earmark them as the handiwork of the accused.
Here, much more is demanded than the mere repeated
commission of crimes of the same class, such as repeated
burglaries or thefts. The device used must be so unusual and
distinctive as to be like a signature.
Id. at 1259 (citation omitted). “Required, therefore, is such a high
correlation in the details of the crimes that proof that a person committed
one of them makes it very unlikely that anyone else committed the others.”
Commonwealth v. Weakley, 972 A.2d 1182, 1189 (Pa. Super. 2009)
(internal quotation marks and citation omitted).
In comparing the methods and circumstances of separate
crimes, a court must necessarily look for similarities in a number
of factors, including: (1) the manner in which the crimes were
committed; (2) weapons used; (3) ostensible purpose of the
crime; (4) location; and (5) type of victims. Remoteness in time
between the crimes is also factored, although its probative value
has been held inversely proportional to the degree of similarity
between crimes.
Id. (internal citations omitted).
In this case, the Commonwealth argued at the pretrial hearing that the
manner in which the crimes were committed was similar because all were “a
close personal encounter between [Appellant] and somebody following a
verbal altercation.” N.T. Hearing, 5/6/14, at 38-39. The Commonwealth
stressed that in all three cases, the weapon used was a knife. Id. at 39. In
regard to location, the Commonwealth argued that
[i]n all of these cases, the incident happen[ed] either … inside …
where the victim was staying or residing, or very close to the
victim’s residence. [Ms.] Cabiness was stabbed just outside of
her home. She was attempting to get away from [Appellant].
She was stabbed on the street. Mr. Bowling and Mr. Worthy
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were both stabbed … in the place where they were residing at
the time.
Id. The Commonwealth also discussed the similarities between the victims
in each incident, stating that they all “share something in common, which is
they are people that challenged [Appellant] in some way during a verbal
altercation and [Appellant] responds by use of deadly force.” Id.
While we agree with the Commonwealth that Appellant’s three
offenses do have some similarities, we cannot overlook the significant
differences in the stabbing attacks. First, the manner in which each attack
occurred varied. For instance, in Mr. Bowling’s stabbing, Appellant left after
the argument, and later returned to stab Mr. Bowling. This is markedly
different from Appellant’s stabbing of Mr. Worthy and Ms. Cabiness in the
midst of altercations with them. Additionally, Mr. Bowling was stabbed while
he was sleeping, while Mr. Worthy and Ms. Cabiness were stabbed during
physical scuffles with Appellant.
Further, as Appellant points out, the altercation between Appellant and
Mr. Worthy began over drugs, yet there was no indication that drugs were
involved in either of the other disputes. Instead, Appellant’s argument with
Ms. Cabiness involved a domestic issue, and Mr. Bowling was not even
arguing with Appellant at all – instead, he broke up a fight between
Appellant and a third-party.
We also point out that the injuries sustained by Mr. Bowling and Mr.
Worthy were significantly different than the single, non-serious injury
inflicted upon Ms. Cabiness. While the trial court emphasized that all three
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victims were “stabbed in the chest by [a] knife[,]” Ms. Cabiness only
suffered one single superficial wound, while Mr. Worthy and Mr. Bowling
were stabbed at least twice and were both seriously wounded.
In regard to the location of the three attacks, the Commonwealth’s
argument that the stabbings are similar because they occurred in, or near, a
residence of some sort is weak, at best. Ms. Cabiness was attacked on the
street, Mr. Bowling was stabbed in his friend’s apartment, and Mr. Worthy
was stabbed in his own home. Moreover, as Appellant points out, the
incidents “took place in different areas across Philadelphia.” Appellant’s
Brief at 37. Thus, the locations of Appellant’s attacks varied.
There are also notable differences in the purposes of the three attacks.
The Commonwealth alleged that Appellant stabbed Mr. Worthy during the
course of a drug-related robbery. See N.T. Trial, 5/13/14, at 139-140
(Commonwealth’s stating in opening remarks that Appellant killed Mr.
Worthy during a robbery). Ms. Cabiness, however, was stabbed during a
domestic dispute and, apparently, Mr. Bowling was stabbed simply in
retaliation for his breaking up an altercation between Appellant and another
individual. Thus, Appellant’s purposes for the stabbings were distinct –
robbery, domestic dispute, and retaliation. Relatedly, his victims were
dissimilar; Ms. Cabiness was his girlfriend, Mr. Bowling was essentially an
acquaintance of Appellant, and Mr. Worthy was a drug dealer who sold
Appellant crack cocaine.
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Finally, the remoteness in time between Appellant’s attack on Mr.
Bowling and Mr. Worthy, and his assault of Ms. Cabiness, was approximately
two years, which weighs in favor of excluding that prior bad act.
In sum, the three attacks have significant differences. Namely, there
was a delay between Appellant’s argument in the presence of Mr. Bowling
and his attack on Mr. Bowling later that night. In that case, Appellant
entered the apartment in which Mr. Bowling was staying, and stabbed Mr.
Bowling while he was sleeping. Appellant’s motive in that attack appeared
to be retaliation for Mr. Bowling’s involvement in Appellant’s altercation with
a third-party. In Mr. Worthy’s attack a month later, Appellant was
attempting to rob Mr. Worthy, in Mr. Worthy’s own home, after a drug-sale
gone wrong. Appellant argued with Mr. Worthy, the two men physically
scuffled, and Appellant stabbed Mr. Worthy in the midst of the altercation.
Two years later, Appellant had a domestic dispute with Ms. Cabiness on the
street and inflicted a single, non-serious knife wound to her chest.
These substantial differences compel us to conclude that Appellant’s
attacks do not demonstrate “any particular distinctive pattern of behavior
by” Appellant. Commonwealth v. Ross, 57 A.3d 85, 102 (Pa. Super.
2012). While to be sure, Appellant committed “crimes of the same class” by
stabbing each victim in the chest, our Supreme Court made clear in Shively
that “much more is demanded” for prior bad acts evidence to meet the
identity exception of Rule 404(b). Shively, 424 A.2d at 1259; see also
Ross, 57 A.3d at 102 (concluding that the commission of several physical
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and/or sexual assaults, accompanied by the use of foreign objects, merely
demonstrated, at most, “the commission of crimes or conduct ‘of the same
general class[,]’” and were “far from satisfying the Shively standard of
being so “unusual and distinctive as to be like a signature”). Thus, the court
erred by admitting evidence of these prior bad acts for the purpose of
proving Appellant’s identity as the person who stabbed Mr. Worthy.
Next, we must assess whether the prior bad acts evidence was
admissible to prove Appellant’s intent. The Commonwealth argues that
because Appellant was charged with first-degree murder, which requires
proof of intent to kill, the court properly admitted the prior bad acts evidence
because “[t]he Bowling and Cabiness stabbings prove that [Appellant] did
not accidentally stab the victim in the heart, but that he could, where he
desired, intentionally plunge a short knife into the victim’s heart or refrain
from doing so. The evidence therefore made it far more likely that he
intended to kill the victim when he stabbed him in the heart, and far less
likely that it was an unintended result.” Commonwealth’s Brief at 37.
Appellant, however, contends that the prior bad acts evidence was
irrelevant to prove intent because: (1) he did not assert a defense of
accident, mistake, or lack of intent; and (2) the requisite intent to kill was
demonstrated by the fact that a deadly weapon was used on a vital part of
the victim’s body. In support of his argument, Appellant relies on Ross,
where we rejected a similar argument as that made by the Commonwealth
herein. Specifically, the Commonwealth in Ross contended “that because
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Ross was charged with first-degree murder, which requires intentional
conduct, that his state of mind was at issue.” Id. at 101. This Court
disagreed “that intent was at issue” in Ross, explaining:
Intent is a mental state that can be inferred from conduct.
Commonwealth v. Martinez, 301 Pa. Super. 121, 447 A.2d
272, 274 (1982). Given the circumstances surrounding Miller’s
murder, including the mutilation of the body, the use of duct
tape, and the bite mark on her breast, there can be no question
that this was an intentional killing. Ross’ only defense was that
he was not the perpetrator, and he did not raise any defense of
accident, mistake, or lack of required intent. Accordingly, prior
bad acts testimony should not have been permitted with regard
to intent.
Id. at 101 (footnote omitted).
Here, as in Ross, Appellant claimed that he was not the person who
stabbed Mr. Worthy; he did not aver that he stabbed Mr. Worthy accidentally
or without the intent to kill. Indeed, such an argument would have been
futile considering that Mr. Worthy was clearly stabbed with a deadly weapon
(a knife) in a vital part of his body (the heart), thereby allowing the jury to
infer that his attacker had the intent to kill. See Commonwealth v.
Packard, 767 A.2d 1068, 1071 (Pa. Super. 2001) (stating “specific intent
[to kill] may reasonably be inferred from an accused’s use of a deadly
weapon on a vital part of the victim’s body”) (citation omitted). 3 Therefore,
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3
In any event, even if the prior bad acts evidence was admissible to prove
intent, we would conclude that the prejudicial impact of that evidence
outweighed the minimal probative value it held, considering that it was
cumulative evidence of Appellant’s intent to kill.
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as we concluded in Ross, Appellant’s intent was not at issue in the present
case. Consequently, the court erred by admitting evidence of Appellant’s
prior bad acts to demonstrate his intent to kill.
In sum, we conclude that the trial court abused its discretion when it
determined that the prior bad acts evidence was admissible to prove
Appellant’s identity and/or intent. While we typically would go on to assess
whether the admission of this evidence was harmless error, the
Commonwealth does not meaningfully develop any argument in that regard,
presumably because the circumstantial evidence against Appellant was not
exceptionally strong. Accordingly, the Commonwealth has failed to
demonstrate that a new trial is not warranted. See Commonwealth v.
Brooker, 103 A.3d 325, 332 (Pa. Super. 2014) (stating it is the
Commonwealth’s burden to establish that the error was harmless beyond a
reasonable doubt). Therefore, we reverse Appellant’s judgment of sentence
and remand for a new trial, where the prior bad acts evidence shall not be
admitted against Appellant.
Judgment of sentence reversed. Case remanded for further
proceedings. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2016
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