Com. v. Kearns, J. ( 2018 )

J-S12027-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JAMES KEARNS,
Appellant No. 1227 MDA 2017
Appeal from the Judgment of Sentence, July 6, 2017,
in the Court of Common Pleas of Luzerne County,
Criminal Division at No(s): CP-40-CR-0002837-2016.
BEFORE: LAZARUS, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY KUNSELMAN, J.: FILED MAY 09, 2018
James Kearns appeals from the judgment of sentence imposed after a
jury convicted him of defiant trespass, theft and two counts of simple
assault.1 Finding no merit to Kearns’ claim that the trial court erred in
admitting evidence of his other bad acts, we affirm.
The trial court summarized the pertinent facts presented at Kearns’s
jury trial as follows:
After a June 4, 2016 domestic violence incident between
[Kearns] and his girlfriend, Kayla Hamilton (Hamilton),
[Kearns] was charged with Defiant Trespass, Theft, and
two counts of Simple Assault. The day after the incident,
Hamilton gave a written statement to police in which she
told police that [Kearns] came to her home at 5:00 a.m.
on June 4, 2016, to spend time with the couple’s son,
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1 18 Pa.C.S.A. §§ 3503, 3921, and 2701, respectively.
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[K.C.]. In the statement, Hamilton reported that [Kearns],
using profanity, asked her to leave him alone because he
was tired so she asked him several times to leave if he
wasn’t there to see the baby. Hamilton stated that he
then began to hit her, smack her in the head and kick her.
She stated that she took her phone and started to call his
father to come and get him. [Kearns] snatched the phone
and said, “If someone comes to the door, watch what
happens.” She further stated that he “grabbed a knife and
threatened to cut [her] mattress. He then took her phone
and keys and tried to leave. After trying to get her things
back, Hamilton said that [Kearns] again hit her on the
back and face and left the apartment with her belongings.
According to Hamilton’s statement, [Kearns] called her
mother later that day to tell her he was going to return the
items. Hamilton said her mother later met [Kearns], who
returned the phone and car key but not the house key. On
June 10, 2016, Hamilton’s mother received a text message
from [Kearns] reading, “I swear on everything I love, if
Kayla keeps playing with me, I’m going to kill her. I don’t
care about cops or jail. If she continues playing games
[K.C.] will be without both parents.” Hamilton’s mother
reported the threatening text message to the police.
Although Hamilton was originally cooperating with the
prosecution, prior to trial she expressed her intention to
refuse to testify and to assert the Fifth Amendment. At
the Commonwealth’s request, she was granted immunity.
At trial, when asked about the incident, Hamilton claimed
that she did not remember what happened. Hamilton
further testified that she may have lied about and
dramatized some of the things she said in the statement.
A jury trial was held on April 25, 2017. Prior to trial,
the Commonwealth sought the admissibility of the June
10, 2016 text message by filing a Motion in Limine:
Commonwealth’s Intention to Introduce Other Bad Acts
Under Pa.R.E. 404(B). The court heard a proffer and oral
argument from both parties before jury selection.
Thereafter, the Commonwealth’s Motion was granted
subject to proper authentication.
Trial Court Opinion, 10/23/17, at 1-2 (citations omitted).
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The jury convicted Kearns on all charges. On July 6, 2017, the trial
court sentenced him to an aggregate term of 6 to 24 months less one day,
and a consecutive one-year probationary term. See Sentencing Order.
7/6/17. This timely appeal follows. Both Kearns and the trial court have
complied with Pa.R.A.P. 1925.
Kearns raises the following issue on appeal:
Whether the trial court erred in granting the
Commonwealth’s Motion in Limine to introduce into
evidence a text message allegedly sent from [Kearns] to
[Hamilton’s] mother when the message was not relevant
for any other purpose other than to prove [his] criminal
character or propensity, where the probative value of such
evidence did not outweigh the unfair prejudice against
[him].
Kearns’ Brief at 1.
“Admission of evidence is within the sound discretion of the trial court
and will be reversed only upon a showing that the trial court clearly abused
its discretion.” Commonwealth v. Drumheller, 808 A.2d 893, 904 (Pa.
2002). “An abuse of discretion is not merely an error of judgment, but is
rather the overriding or misapplication of the law, or the exercise of
judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-
will or partiality, as shown by the evidence of record.” Commonwealth v.
Harris, 884 A.2d 920, 924 (Pa. Super. 2005).
The admissibility of other bad acts of a defendant is governed by
Pennsylvania Rule of Evidence 404(b), which reads as follows:
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Rule 404. Character Evidence; Crimes or Other Acts
***
(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).
“[E]vidence of [other] crimes is not admissible for the sole purpose of
demonstrating a criminal defendant’s propensity to commit crimes.”
Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, 1283 (Pa.
Super. 2004) (en banc). Nevertheless, “[e]vidence may be admissible in
certain circumstances where it is relevant for some other legitimate purpose
and not utilized solely to blacken the defendant’s character.” Id.
Specifically, evidence of other crimes or bad acts is admissible if offered for
a non-propensity purpose, such as proof of an actor’s knowledge, plan,
motive, identity, or absence of mistake or accident. Commonwealth v.
Chmiel, 889 A.2d 501 (Pa. 2005). When offered for a legitimate purpose,
evidence of prior crimes or bad acts is admissible if its probative value
outweighs its potential for unfair prejudice. Commonwealth v. Hairston,
84 A.3d 657, 665 (Pa. 2014).
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The list of non-propensity uses enumerated in the rule is non-
exhaustive. See Pa.R.E. 404(b) Comment. One use of such evidence not
listed within the rule, but recognized by case law, is the res gestae
exception. The res gestae exception to Rule 404(b) permits the admission
of evidence when it becomes part of the history of the case and formed part
of the natural development of the facts. Commonwealth v. Solano, 129
A.3d 1156, 1178 (Pa. 2015). This exception allows the admission of
evidence of other crimes or bad acts to tell the fact-finder “the complete
story.” Hairston, 84 A.3d at 665. “Evidence of other criminal acts is
admissible “to complete the story of the crime on trial by proving its
immediate context of happenings near in time and place.” Commonwealth
v. Brown, 52 A.3d 320, 326 (Pa. Super. 2012) (citation omitted). Evidence
of prior or other bad acts “may also be introduced to prove consciousness of
guilt, i.e., that the defendant was aware of his wrongdoing.”
Commonwealth v. Ivy, 146 A.3d 241, 251 (Pa. Super. 2016).
The trial court found no merit to Kearns’ appellate claim, as it
determined that the text message the Commonwealth wished to introduce
into evidence had more than one non-propensity use and was not unduly
prejudicial. As to the former, the court explained:
We agree with the Commonwealth’s position and
therefore found that the text was not offered to prove the
criminal propensity of [Kearns], but was offered as part of
the res gestae of the crime with which [he] was charged
and convicted. The threat to Hamilton’s life, made by text
six days after she reported [Kearns’s] anger-filled incident
to the police, was part of the natural development of the
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facts. The admission of the text message “completes the
story” of the case and explains to the jury why Hamilton,
the victim in this matter, was no longer willing to
voluntarily testify at the trial.
***
We find that [Kearns’] threatening to kill Hamilton in
the text message was also evidence tending to prove his
consciousness of guilt. The instant case has a similarity to
Ivy in that both cases involved defendants attempting to
coerce their victims into refusing to cooperate with
investigations into the criminal charges against them. In
this case, the text message threatening to kill Hamilton is
especially important because it provides the jury, who was
without the full benefit of her testimony, the context in
which she refused to voluntarily testify.
Trial Court Opinion, 10/23/17, at 5-7. The trial court also agreed with the
Commonwealth “that the probative value of the text message outweighs its
prejudicial effect,” in that “it was not so prejudicial as to divert the jury’s
attention away from its duty of weighing the evidence impartially.” Id. at 9.
In support of his issue on appeal, Kearns argues that evidence of the
text message at issue “does not fall under an exception” to Rule 404(b) and
“is unfairly prejudicial.” Kearns’ Brief at 5. He first argues that the res
gestae exception “is only properly applied when ‘the other bad acts are part
of the same transaction involving the charged crime.’” Id. at 6 (citing
Brown, supra). According to Kearns, the text message received by
Hamilton’s mother “was a separate incident, unrelated to the events of June
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4, 2016.” Id.2 He further argues that, because Hamilton immediately
reported to police the incident giving rise to his charges, this case is unlike
Commonwealth v. Dillon, 863 A.2d 597 (Pa. Super. 2004), upon which
the trial court allegedly relied.
Kearns also argues that there was no evidence introduced at trial to
establish that Hamilton was even aware of the contents of the text message
her mother received. Indeed, he asserts that, at trial, “Hamilton
acknowledged that she and [Kearns] are currently a couple, living and
raising their son together. Given the situation, [Hamilton] has a vested
interest in [Kearns] not going to prison. Kearns’ Brief at 7.
With regard to the trial court’s determination that evidence of the text
message was admissible as consciousness of his guilt, Kearns argues that
the court’s likening the facts presented to those involved in Ivy, supra, was
inapposite, because Ivy involved the use of a third party to threaten the
victim so that she would withdraw the charges against the defendant.
Because the text message in this case did not even reference the charges
Hamilton filed, or demanded their withdrawal, Kearns asserts that the text
message did not indicate his consciousness of guilt.
____________________________________________
2Kearns further emphasizes that the victim’s mother characterized the text
message as a separate incident. The weight to be given her testimony was
exclusively for the jury as fact finder to determine.
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Finally, by permitting the admission of the text message, Kearns
asserts that “the Commonwealth and trial court improperly presented the
jury with unduly prejudicial evidence.” Kearns’s Brief at 8. According to
Kearns, “[t]he text message only served to show the jury [his] propensity to
make threats against [Hamilton], preventing the jury from weighing the
evidence in dispute fairly and impartially.” Id.
We find no merit to Kearns’s arguments. We first disagree with his
characterization of the text message as a separate incident, rather than part
of the “same transaction” required for admission under the res gestae
exception. On the same day as the domestic incident, Kearns returned a
majority of Hamilton’s property to her mother. Hamilton’s mother
acknowledged at trial that she then sent Kearns a text message inquiring as
to the location of the house key because it was not returned. See N.T.,
4/25/17, at 59. Thereafter, Kearns sent the mother the text message at
issue. Although Kerns made no direct demand that Hamilton to withdraw
the charges within the text message, his threat that “if Kayla keeps playing
me, I’m going to kill her” was a reference to the domestic incident that led
to his charges. Not only does this threat “complete the story,” and was
therefore admissible under the res gestae exception, but also, as in Ivy,
indicates Kearns’ consciousness of guilt.
While the record supports Kearns’ assertion that no evidence
established that Hamilton knew about the text message, this omission in
evidence can be explained by the fact that the jury “was deprived of the full
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benefit” of Hamilton’s testimony. See Trial Court Opinion, supra. One can
infer Hamilton knew of the text message, which is why she refused to
voluntarily testify. While Kearns opines that Hamilton’s refusal to testify was
because they now are living as a family, the credibility and weight given
either scenario was exclusively for the jury to determine.
In addition, the fact that the text message was received six days after
the initial incident that gave rise to the charges does not alter our
conclusion. “Although evidence of prior occurrences which is too remote is
not properly admissible[,] it is generally true that remoteness of the prior
instances of hostility and strained relations affects the weight of the
evidence and not its admissibility.” Commonwealth v. Ulatoski, 371 A.2d
186, 191 (Pa. 1977) (citation and footnote omitted). However, “no rigid rule
can be formulated for determining when such evidence is no longer
relevant.” Id. “What that limit of time should be must depend largely on
the circumstances of each case, and ought always to be left to the discretion
of the trial court.” Id. at 191-92. Here, although the text message at issue
was received six days after the original domestic incident which gave rise to
the charges, it is not too remote, especially considering the mother’s
involvement with retrieving the victim’s property taken during the incident,
and her texting him after the return of the property to ask about the house
key that was not returned.
Finally, we find no merit to Kearns’ claim that admission of the text
message was unduly prejudicial. As our Supreme Court has recently
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explained, “[T]he trial court is not required to sanitize the 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.”
Hairston, 84 A.3d at 666 (citation omitted). Although, by their very nature,
evidence of prior or other bad acts is prejudicial to a criminal defendant, the
acts at issue in this case were not unduly prejudicial. This is especially true,
when, as in this case, the trial court, as part of its final instructions to the
jury, gave a cautionary instruction as to how the jury was to limit its
consideration of this evidence. See, e.g., Commonwealth v. Claypool,
495 A.2d 176, 179-80 (Pa. 1985) (concluding that the trial court’s giving of
a detailed cautionary instruction was sufficient to overcome prejudicial effect
of the introduction of prior bad acts evidence). Included within its closing
instructions to the jury, the trial court stated:
In this trial you also heard evidence tending to prove
that [Kearns] engaged in improper conduct for which he is
not on trial. I am speaking of the testimony to the effect
that [Kearns] may have sent a threatening text message.
This evidence is before you for a limited purpose; that is,
for the purpose of tending to show the history of this case
and/or [Kearns’] intent, state of mind, motive, or absence
of a mistake.
This evidence must not be considered by you in any
way other than for the purposes I just stated. You must
not regard this evidence as showing that [Kearns] is a
person of bad character or criminal tendencies, from which
you might infer his guilt in this case.
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N.T., 4/26/17, at 111. A jury is presumed to follow the trial court’s
instructions. Commonwealth v. Faurelus, 147 A.3d 905, 915 (Pa. Super.
2016).
In sum, because the trial court did not abuse its discretion in admitting
the evidence of the text message, we affirm Kearns’ judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/9/2018
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