Com. v. Maven, R. ( 2019 )

J-A27018-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
RAHSEUL MAVEN
Appellant No. 2931 EDA 2016
Appeal from the Judgment of Sentence entered April 22, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0009780-2013
BEFORE: BOWES, STABILE, and McLAUGHLIN, JJ.
DISSENTING MEMORANDUM BY STABILE, J.: FILED JUNE 25, 2019
The learned Majority concludes that the trial court did not abuse its
discretion in permitting the Commonwealth to introduce, for purposes of
proving Appellant’s identity and his intent and knowledge to commit
possession with intent to deliver (“PWID”) crack cocaine, evidence of prison
calls Appellant made more than two years after he was arrested and charged
with PWID. I respectfully disagree with the Majority’s conclusion. My review
of the record, as set forth below, reveals that the Commonwealth never sought
to introduce the prison recordings under Pa.R.E. 404(b) for purposes of
establishing Appellant’s identity. Rather, the Commonwealth rested its
introduction of the prison recordings solely on the intent and knowledge
exception to Rule 404(b)(1). However, unlike the Majority and consistent with
Commonwealth v. Ross, 57 A.3d 85 (Pa. Super. 2012) (en banc), appeal
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denied, 72 A.3d 603 (Pa. 2013) and Commonwealth v. Boczkowski, 846
A.2d 75 (Pa. 2004), I cannot conclude that the Commonwealth satisfied its
burden under Rule 404(b) as Appellant never contested or challenged any
elements of the underlying crime, i.e., PWID. Accordingly, I would vacate and
remand this matter to the trial court for a new trial.
I confine my analysis to the issue of the admissibility of the 2015 prison
recordings under Rule 404(b) as I find it to be dispositive. Given this discrete
issue, I also find it unnecessary to recount the full background of this case.
Briefly, Appellant was charged with, inter alia, PWID following controlled
purchases of crack cocaine by a confidential informant (“CI”). On April 13,
2016, prior to the start of Appellant’s jury trial, Appellant’s trial counsel orally
raised a motion in limine to preclude the Commonwealth from introducing and
admitting into evidence recordings of two phone calls Appellant made in 2015
after his arrest while incarcerated. Trial counsel explained that Appellant
made the prison calls on November 25 and 26, 2015
when he was taken back into custody in th[is] case. The
allegations in the case arise from July ninth, and tenth, eleventh
and twelfth of 2013. The statements in the prison phone calls . . .
are get all the drugs out of the house on one day and on the
second day it is there’s cocaine under the bed, get that out of the
house[.]
....
[T]hat information coming two years and several months,
those statements coming two years and several months later are
basically another bad act. They are not discussing the case at
hand and whether [Appellant] . . . was guilty or not guilty, did or
did not do acts that constitute the crimes charged. It’s propensity
evidence. It is only relevant to show or would only show that
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[Appellant] is the kind of person that has drugs around and
therefore two years plus prior you can convict [Appellant] for
selling drugs because two years later [Appellant] says make sure
that there’s no drugs in the house, make sure there’s no cocaine
under the bed. So it’s not relevant. It is in fact prejudicial.
N.T. Hearing, 4/13/16, at 7-8. In response, the Commonwealth argued:
[O]ne of the elements that [the trial court] will be instructing the
jury on is knowledge and intent to possess the item and, in
fact, knowledge that it is a controlled substance. This evidence
would be used to show that he does have knowledge and he does
exercise control over what he in the prison tapes describes as not
only drugs but also specifically is cocaine, the narcotic in this case.
So it is relevant to that case to show that his knowledge and his
intent to possess controlled substances is in his own words, that
he has that knowledge, that he has that intent. So therefore, it is
relevant to the case. It is relevant to this crime. It is relevant to
the specific charge.
Id. at 9 (emphasis added). Following a hearing, the trial court denied the
motion without specifying the reason for the denial.1
At trial, the Commonwealth presented the testimony of three
Philadelphia Police Officers. The officers were Officer Jason Yerges, who, as a
member of the narcotics field unit, worked with the CI and observed the
controlled purchases of crack cocaine on July 9 and 10, 2013 and identified
Appellant as the seller of the crack cocaine at the Property; Officer Carlos
Buitrago, who, as a member of the narcotics field unit, executed a search
warrant at the Property on July 11, 2013 and recovered a handwritten letter
addressed to Appellant albeit bearing a different street address from that of
____________________________________________
1 I observe that Commonwealth failed to file a Pa.R.E. 404(b)(3) notice
informing Appellant of its intention to introduce evidence of subsequent bad
acts at trial regarding the 2015 prison recordings.
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the Property; and Officer Michael Guinter, who arrested Appellant on July 12,
2013 one and one-half blocks away from the Property. In addition, the
Commonwealth introduced via stipulation the recordings of the November 25
and 26, 2015 phone calls that Appellant made while in prison. N.T. Trial,
4/14/16, at 144-45. The Commonwealth thereafter played the complete
recordings of the prison calls for the jury; however, it failed to ensure their
transcription for the record. Upon conclusion, the trial court allowed their
admission into evidence.2 Id. at 146.
Appellant’s principal defense at trial was that he was not the individual
who sold crack cocaine to the CI on July 9 and 10, 2013.3 N.T. Trial, 4/14/16,
at 148; N.T. Trial, 4/15/16, at 8-9, 12-13, 22-25. During closing, Appellant’s
trial counsel argued in part:
And the District Attorney is gonna play a snippet from a phone call
from the jail – there were two that we heard yesterday – where
my client hoped to get out on house arrest at Thanksgiving last
year. Thanksgiving is that holiday where you spend time with
your family and you know your family. They’re all types, right?
When you’re surrounded by drugs, it really comes as no surprise
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2 The trial transcripts reveal that Appellant’s counsel failed to request a limiting
instruction, and the trial court failed to issue one on its own initiative, with
respect to the introduction and admission of subsequent bad acts evidence.
See Pa.R.E. 105 (“If the court admits evidence that is admissible against a
party or for a purpose--but not against another party or for another purpose-
-the court, on timely request, must restrict the evidence to its proper scope
and instruct the jury accordingly. The court may also do so on its own
initiative.”).
3My record review indicates that Appellant did not raise a misidentification
defense at the hearing on the in limine motion at issue.
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that you talk about getting rid of drugs so you don’t get into any
more trouble.
So two years after the arrest in this case from jail he talks
about drugs, two times for a few seconds, pointedly in the second
conversation. There’s coke under the bed, there’s bags in the
back yard. Don’t let my chance of house arrest get screwed up
by those drugs.
Does the mention of that prove that on July ninth and tenth
[Appellant] sold drugs to a [CI] two years earlier? Because those
are the allegations in this case and that’s what you’re here to
decide. Or did those snippets of conversation create prejudice,
suspicion, inflame passion? Because those are the things you do
not rely on when you are rendering a verdict in a criminal case.
It’s just casting dirt on [Appellant] to make him look bad so that
perhaps you won’t be convinced by the evidence or the lack of
evidence in this case and you’ll convict him because he seems like
a bad guy.
The judge will define the crime of [PWID] and she’ll define
the concept of circumstantial evidence for you. She’ll define what
makes for possession under the law. Nowhere in any of those
definitions will you hear any idea that covers a statement made
two years later under different circumstances that makes for
proof. It would be proof if he had said they’re looking for crack,
not cocaine, crack. There’s crack in blue packets, get rid of that.
No. That’s not what’s said. In three years’ time they’ve got two
little snippets that talk about drugs, and they’re going to ask you
to disregard every other failure of the evidence in this case
because of those two little snippets. Never mind the rest of the
almost three years’ time in which there is no other mention of
drugs or bags or beds or anything.
N.T. Trial, 4/15/16, at 29-31. The Commonwealth wrapped up its closing
argument by playing a snippet of the prison phone call for the jury.
[Commonwealth:] . . . . Just in case you forgot what it said, let
me play it again so you can hear him say what he was worried
about them finding.
[Audio recoding played.]
[Commonwealth:] “I put the coke under the bed. Make sure it’s
not there.” That’s not being in and around people that have it.
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“The yellow bags, those might be Shaku’s. I put the coke under
the bed. Make sure it’s not there.” [Appellant] sold crack cocaine
July ninth [and] July tenth, and possessed crack cocaine on July
ninth, tenth and eleventh with the intent to sell. I’m going to ask
you to find [Appellant] guilty of those acts. Thank you.
Id. at 47-48. During deliberation, the jury asked to listen to the two recorded
phone calls again or review the transcript of those calls. Id. at 78. The trial
court noted that “transcripts were not introduced,” and as a result, allowed
the jury to hear the recordings again. Id. at 78-79. Thirteen minutes after
hearing the recordings, the jury reached a verdict, finding Appellant guilty of
PWID. Id. at 79-80.
On April 22, 2016, prior to the start of sentencing, Appellant’s trial
counsel orally moved for extraordinary relief under Pa.R.Crim.P. 704(B),
asserting that Appellant was entitled to a new trial because the
Commonwealth’s playing of the November 2015 taped prison conversations
unfairly prejudiced Appellant. Specifically, trial counsel argued that the jury
rendered its verdict within minutes “of the jury asking the sole question in the
case, which was to listen to those two phone calls. So I think that it’s been
demonstrated that they clearly could not separate out whether anything that
happened in 2015 was actually probative of anything that was happening in
2013.” N.T. Hearing, 4/22/15, at 5-8. In response, the trial court remarked:
If memory serves me correctly, the proffer of that
information was to identify and supplement the information as to
intent and identification[4] of [Appellant] as the proper person
____________________________________________
4 Although not asserted by the Commonwealth, this was the first instance the
identification exception to Rule 404(b)(1) was mentioned. The trial court, sua
sponte, and without offering any analysis references the identity exception.
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conducting the sales and knowledge that the sales were of narcotic
substances. So it goes to intent, knowledge, as well as lack of
mistake and ignorance, which are all components of the rules of
evidence. And I believe, if I didn’t say so on the record, I believe
I deemed that the probative value of that information, given the
context from which it was stated, outweighed any prejudicial value
that was posed because it clearly demonstrated [Appellant’s]
knowledge, intent and lack of mistake, which the defense was, to
a degree, it wasn’t me and somebody else was dealing. So in that
context, that’s why I ruled in the fashion that I did.
Id. at 8-9. The trial court denied the oral motion for extraordinary relief. Id.
at 10. Subsequently, the trial court sentenced Appellant to three to six years’
imprisonment, followed by ten years’ probation.
On appeal, Appellant argues, among other things, that the trial court
abused its discretion in permitting the Commonwealth to introduce evidence
of subsequent bad acts to prove Appellant’s intent or knowledge to commit
PWID. Appellant’s Brief at 24. In support, Appellant points out that he did
not dispute any elements of PWID and that his sole defense theory at trial was
that he was not the individual who committed PWID in this case.
Consequently, he claims that the admission of the 2015 recordings was
improper. Further, Appellant asserts that the recordings of the 2015 prison
calls discussing cocaine made over two years after his arrest for PWID, bore
little to no similarity to the underlying crime of PWID. Finally, Appellant
asserts that the trial court’s decision to permit the Commonwealth to introduce
subsequent bad acts evidence unfairly prejudiced him. Id. at 29.
In the context of Rule 404(b) evidence, “[t]he burden is on the party
seeking admission to demonstrate the applicability of the exception to the
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general rule; in this case, that burden fell on the Commonwealth. There is no
presumption of admissibility of other-acts evidence merely because it is
somewhat relevant for a non-propensity purpose.” Commonwealth v. Lynn,
192 A.3d 165, 171 (Pa. Super. 2018) (citations omitted).
Evidence is relevant if it logically tends to establish a material fact in the
case, tends to make a fact at issue more or less probable, or supports a
reasonable inference or presumption regarding a material fact.
Commonwealth v. Spiewak, 617 A.2d 696, 699 (Pa. 1992). Once evidence
is found to be relevant and probative, it is inadmissible only if its probative
value is substantially outweighed by the danger of unfair prejudice to the
defendant. Commonwealth v. Lilliock, 740 A.2d 237, 244 (Pa. Super.
1999) (citing Commonwealth v. Foy, 612 A.2d 1349 (Pa. 1992), appeal
denied, 795 A.2d 972 (Pa. 2000)).
Rule 404(b), relating to character evidence, crimes and other acts,
provides in relevant part:
(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.
(3) Notice in a Criminal Case. In a criminal case the prosecutor
must provide reasonable notice in advance of trial, or during trial
if the court excuses pretrial notice on good cause shown, of the
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general nature of any such evidence the prosecutor intends to
introduce at trial.
Pa.R.E. 404(b)(1), (2), and (3) (emphasis added). As our Supreme Court has
explained in Commonwealth v. Hicks, 156 A.3d 1114 (Pa. 2017):
[E]vidence of [] bad acts, while generally not admissible to prove
bad character or criminal propensity, is admissible when proffered
for some other relevant purpose so long as the probative value
outweighs the prejudicial effect. Such evidence may be admitted
to show motive, [intent,] identity, lack of accident or common plan
or scheme.[5] In order for other crimes evidence to be admissible,
its probative value must outweigh its potential for unfair prejudice
against the defendant, [Rule 404(b)(2))], and a comparison of the
crimes proffered must show a logical connection between them
and the [the bad acts or the] crime currently charged.
This Court has long recognized an exception to the general
inadmissibility of other crimes evidence where there is a striking
similarity—or logical connection—between the proffered [] bad
acts and the underlying offense. . . . As early as 1872, . . . [this
Court has] described the importance of such a connection as
follows:
It is a general rule that a distinct crime,
unconnected with that laid in the indictment, cannot
be given in evidence against a prisoner. It is not
proper to raise a presumption of guilt, on the ground,
that having committed one crime, the depravity it
exhibits makes it likely he would commit another. . . .
To make one criminal act evidence of another, a
connection between them must have existed in the
mind of the actor, linking them together for some
purpose he intended to accomplish; or it must be
____________________________________________
5 The official Comment to Rule 404 explains that this list of exceptions is non-
exhaustive. Pa.R.E. 404, cmt. As a result, courts are not limited to the nine
exceptions enumerated in Rule 404(b)(2) when exercising their discretion to
allow the admission of other bad acts evidence, as long as the evidence is
introduced for a purpose other than to prove character or a propensity to act
in accordance with traits of character. Commonwealth v. Johnson, 160
A.3d 127, 144 (Pa. 2017); Commonwealth v. Dillon, 925 A.2d 131, 137
(Pa. 2007).
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necessary to identify the person of the actor, by a
connection which shows that he who committed the
one must have done the other.
. . . . Sufficient commonality of factors between the other
incidents and the underlying crime dispels the notion that they are
merely coincidental and permits the contrary conclusion that they
are so logically connected they share a perpetrator.
In further explaining the logical connection standard, this
Court has noted 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 or
distinctive as to be like a signature.
Hicks, 156 A.3d at 463-65 (citations and quotation marks omitted).
Moreover, it is well-settled that “Rule 404(b) does not distinguish between
prior and subsequent acts.” Commonwealth v. Wattley, 880 A.2d 682(Pa. Super. 2005) (citation omitted). “Although evidence of a subsequent
offense is usually less probative of intent than evidence of a prior offense,
evidence of a subsequent offense can still show the defendant’s intent at the
time of the prior offense.” Id. (citation omitted); accord Commonwealth
v. Martinez, 447 A.2d 272, 274 (Pa. Super. 1982) (explaining that evidence
of subsequent offenses is less strongly probative of intent than prior offenses
because it does not establish that a defendant possessed the requisite intent
prior to the commission of the crime being tried). “Evidence of a later crime
is so tenuously related to intent at the time of an earlier crime that it is
admissible only if proof of both crimes is necessary to prove the
Commonwealth’s case.” Martinez, 447 A.2d at 274-75 (evidence
inadmissible to prove the appellant’s intent where the Commonwealth had
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sufficient evidence to establish the first sale of heroin without introducing
evidence of the subsequent sale).
This Court warned in Ross:
The purpose of Rule 404(b)(1) is to prohibit the admission of
evidence of prior bad acts to prove the character of a person in
order to show action in conformity therewith. While Rule
404(b)(1) gives way to recognized exceptions, the exceptions
cannot be stretched in ways that effectively eradicate the rule.
With a modicum of effort, in most cases it is possible to note some
similarities between the accused’s prior bad conduct and that
alleged in a current case. To preserve the purpose of Rule
404(b)(1), more must be required to establish an exception
to the rule—namely a close factual nexus sufficient to
demonstrate the connective relevance of the prior bad acts
to the crime in question. . . . This Court has warned that prior
bad acts may not be admitted for the purpose of inviting the jury
to conclude that the defendant is a person “of unsavory character”
and thus inclined to have committed the crimes with which he/she
is charged.
Ross, 57 A.3d at 105-06 (citations and quotation marks omitted) (emphasis
added). Mindful of this warning, and upon careful review of the record, I
conclude that the trial court here abused its discretion in allowing the
Commonwealth to introduce the 2015 prison calls to establish the appellant’s
identity in connection with the 2013 crimes and/or to establish knowledge or
intent to possess in connection with those crimes.
To make use of the identity exception under Rule 404(b)(1), the
Commonwealth would have had to establish that the 2015 phone calls
demonstrate that Appellant, to the exclusion of others, was the individual who
committed the underlying crime of PWID. In explaining the identity exception
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to Rule 404(b)(1), the Ross Court pointed out that evidence of crimes may
be admissible:
[t]o 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. . . . 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.
Ross, 57 A.3d at 102 (citations, brackets and original emphasis omitted);
accord Commonwealth v. Nypaver, 69 A.3d 708, 717 (Pa. Super. 2013)
(“The similarities must describe a crime so distinctive in method and so similar
to the charged crime that proof that a person committed one tends to prove
he committed the other.”). In Ross, we agreed with the appellant that the
trial court abused its discretion in allowing the Commonwealth to introduce
other bad acts evidence, inter alia, for purposes of proving identity. We noted
that the testimony of three proposed witnesses established only a common
thread of physical and/or sexual assault with a foreign object, and this was
insufficient for a crime sufficiently unique to signify an identifying signature.
Ross, 57 A.3d at 102.
Here, the Majority concludes in a single paragraph that the introduction
of the 2015 phone calls is necessary and relevant to establish Appellant’s
identity as the perpetrator of PWID. I do not agree. There is no indication in
the record that the drugs (crack cocaine) at issue in the underlying 2013 case
were the same as the drugs (cocaine) discussed in the phone calls two years
later. Additionally, it is unclear whether the property or location discussed in
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the 2015 phone calls was the same property from which drugs were recovered
in 2013. The only similarity between the 2013 crime and the 2015 phone call
is narcotics. That, however, is insufficient to satisfy the identity exception. In
other words, the mere involvement of drugs here is not so unusual or
distinctive as to be Appellant’s signature, especially when the record is devoid
of any high correlation in details between the 2013 crime and 2015 prison
recordings. Stripped to its essence, and given the circumstances of this case,
the Majority’s decision sanctions the introduction of propensity evidence under
the guise of the identity exception. I do not dispute that in many cases identity
frequently is at issue in criminal proceedings. Following the Majority’s
approach however, would eviscerate the rules against propensity evidence by
introducing under the identity exception other bad acts and crimes without
any connection to the crimes being charged.
I now turn to the intent and knowledge exceptions to Rule 404(b)(1).
Instantly, the introduction of the subsequent bad act evidence to prove intent
or knowledge was improper because Appellant never contested or challenged
any elements of PWID, i.e., the underlying crime. Generally, when elements
of a crime, such as intent, are undisputed, the Commonwealth’s need for other
bad acts evidence to establish such elements is nonexistent. See
Commonwealth v. Aguado, 760 A.2d 1181, 1187 (Pa. Super. 2000) (en
banc) (noting that parties disputed the element of possession rather than
intent and thus the Commonwealth’s evidence of the appellant’s prior drug
transaction, which occurred nine months earlier, was not necessary to rebut
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his defense). Thus, unless introduced to counter a defense or a likely
inference of a defense, the Commonwealth is not permitted to use exceptions
to Rule 404(b)(1). Ross, 57 A.3d at 101; Boczkowski, 846 A.2d at 89; see
Hicks, 156 A.3d at 470 (noting that Rule 404(b) evidence tended to establish
the elements of first-degree murder instead of accidental death); see also
Commonwealth v. Tyson, 119 A.3d 353, 362-63 (Pa. Super. 2015) (en
banc) (noting, among other things, that the Rule 404(b) evidence was
admissible to belie the defendant’s claim that he mistakenly believed the
victim was awake or gave her consent to the sexual intercourse), appeal
denied, 128 A.3d 220 (Pa. 2015); Commonwealth v. Kinard, 95 A.3d 279,
285 (Pa. Super. 2014) (noting, inter alia, that the other acts evidence was
admissible to dispel the defense of mistake); Nypaver, 69 A.3d at 717 (noting
that Rule 404(b) evidence was inadmissible because the perpetrator’s identity
was not at issue at trial); Commonwealth v. Hude, 390 A.2d 183, 185 (Pa.
Super. 1983) (noting that the Commonwealth’s need to offer witness
testimony regarding other crimes to negate a defense of mistake, accident or
lack of intent was nonexistent, because “the appellant freely admitted
smoking marijuana on occasion and did not base his defense in any way on
mistake or entrapment”).
In Ross, the police charged the appellant with first-degree murder and
related crimes in connection with the sexual assault and murder of Tina Miller.
Ross, 57 A.3d at 87. Miller’s body was discovered in a prone position, partially
immersed in a lake, and covered only in a shirt, a dark sweater, and knee-
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high boots. Id. Miller’s hands were duct-taped behind her back, and
additional duct tape was around her head, mouth and arms. Id. Dr. Saralee
Funke, the forensic pathologist who performed Miller’s post-mortem, opined
that Miller died of a combination of drowning and strangulation. Id. at 88.
Injuries to Miller’s body included various abrasions to the legs, buttocks, arms
and face, an abrasion on the right cheek consistent with a blow to the face,
and pattern marks on the left breast consistent with a bite. Critically, Miller’s
anus and vagina were “massively traumatized.” Id. Specifically, Dr. Funke
described numerous lacerations to this area of the body, including one “so
deep that it went through the sphincter muscle[, t]ore the sphincter apart and
ended up in the vagina.” Id. “Dr. Funke opined that these particular injuries
likely were inflicted through the use of ‘a significant amount of force’ with a
foreign object.” Id.The trial court allowed the Commonwealth to introduce the testimony of
three of the appellant’s former girlfriends to prove, inter alia, the appellant’s
intent to kill Miller. Id. at 99. Each woman testified to various acts of violence
that the appellant had committed against her, including sexual violence. Id.
at 99-100. Two of the women testified that the appellant had used foreign
objects on her during sex. Id.On appeal, the appellant argued, among other things, that the trial court
abused its discretion in allowing the Commonwealth to introduce other bad
acts evidence to prove his intent to kill Miller. This Court, sitting en banc,
agreed, concluding, inter alia, that intent was not an issue in the case because
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intent to kill Miller could be inferred under the circumstances. Id. at 101. We
reasoned that “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.” Id. at
101. We further noted that the appellant’s “only defense was that he was not
the perpetrator, and he did not raise any defense of accident, mistake or lack
of required intent.” Id. As a result, we concluded that “prior bad acts
testimony should not have been permitted with regard to intent.” Id.(emphasis added).
By contrast, in Boczkowski, our Supreme Court noted that the
evidence adduced at trial raised an inference of mistake or accident that
entitled the Commonwealth to introduce prior bad acts evidence to dispel that
inference. Boczkowski, 846 A.2d at 89. The appellant was charged with,
and subsequently convicted of, murdering his wife, Mary Ann. On the night
of the murder, the appellant called paramedics, who found Mary Ann
intoxicated and unresponsive in a hot tub at the couple’s home. The
paramedics determined that Mary Ann was incapable of resuscitation. The
Commonwealth sought to introduce evidence of the appellant’s conviction in
North Carolina for the murder of his former wife, Elaine. Similar to the
circumstances surrounding Mary Ann’s death, Elaine died in a bathtub at the
couple’s home while intoxicated. As noted, our Supreme Court held that the
prior bad acts evidence of the circumstances surrounding Elaine’s murder and
the appellant’s subsequent conviction of that murder were admitted properly
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to dispel the inference that Mary Ann died as a result of an accident. Id. at
88-89.
Instantly, Appellant did not hold himself out as an upstanding, law-
abiding citizen. Rather, as in Ross, Appellant raised a mistaken identity
defense at trial, claiming that he was not the person who sold crack cocaine
to the CI on July 9 and 10, 2013. Indeed, Appellant did not dispute any
elements of the charged crime, i.e., PWID. Appellant did not aver that he sold
crack cocaine to the CI unintentionally, or without knowledge of the content
of what he sold. Appellant also did not dispute the element of possession
necessary for a PWID conviction. Appellant likely recognized that challenging
the elements of PWID would have been futile considering that an undercover
police officer observed the controlled purchases of crack cocaine by the CI.
Thus, given the circumstances surrounding the controlled purchases and the
first-hand observations of the same by Officer Yerges, intent to commit PWID
can be inferred. Additionally, unlike Boczkowski, the evidence, or lack
thereof, presented by the Commonwealth either at the hearing on Appellant’s
motion in limine or at trial did not raise an inference that the sale of crack
cocaine to the CI on July 9 and 10, 2013 was a mistake, accident or otherwise
unintentional. As a result, I conclude that the introduction and admission into
evidence of the 2015 recordings to prove Appellant’s intent or knowledge to
possess crack cocaine was an abuse of discretion. The trial court abused its
discretion in allowing the Commonwealth to introduce evidence of Appellant’s
subsequent prison calls discussing coke for purposes of proving Appellant’s
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intent and knowledge to commit PWID, for which he was arrested and charged
more than two years earlier. This is particularly so where the Commonwealth
fails to establish any nexus between the drugs discussed in the 2015 phone
calls and the drugs underlying the 2013 PWID charges.
I, therefore, respectfully dissent and would vacate and remand this case
to the trial court for a new trial.
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