Com. v. Franks, H. ( 2019 )

J-A18025-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
HAROLD MICHAEL FRANKS : No. 179 WDA 2019
Appeal from the Order Entered January 17, 2019
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0005049-2017
BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS, J.: FILED OCTOBER 16, 2019
The Commonwealth appeals from the order denying its motion in limine
regarding the admissibility of hearsay and other bad acts evidence in its
prosecution of Appellee Harold Michael Franks.1 The Commonwealth argues
that the evidence at issue is admissible under the applicable Pennsylvania
Rules of Evidence and relevant caselaw. The Commonwealth also argues that
the trial court erred in taking judicial notice of certain facts about Appellee’s
relationship with the complainant. We reverse in part and remand.
The relevant facts and procedural history of this appeal are as follows.
On October 29, 2017, Greensburg City Police Officer Jason Fidazzo was on
duty, working an overnight shift. At approximately 3:00 a.m., Officer Fidazzo
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1 The Commonwealth certified that the order terminated or substantially
handicapped the prosecution of this matter at the time it filed its notice of
appeal from this interlocutory order. See Notice of Appeal, 1/28/19; Pa.R.A.P.
311(d).
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exited the police station to go to his patrol car in the parking lot. At the same
time, a Honda CRV drove into the parking lot and pulled up to the steps where
the officer was standing.
Officer Fidazzo approached the vehicle, shined a light into the passenger
compartment, and observed Melissa Franks (Complainant), who was the
driver and sole occupant. Complainant was “[v]isibly upset, shaking, [and]
had . . . fresh blood on her face.” N.T. Pretrial Hr’g, 8/27/18, at 9. Officer
Fidazzo asked Complainant what had happened, but “[s]he was breathing
heavily and was unable to tell [him] exactly what was going on at that time.”
Id.
Officer Fidazzo noticed that Complainant was covering herself with a
jacket, and it appeared that she was not wearing clothing underneath the
jacket. Officer Fidazzo helped Complainant out of her car, and he escorted
her into an interview room inside the police station “so she could be away
from everybody else.” Id. at 10. Inside the police station, Officer Fidazzo
observed “fresh injuries on her face,” and he called paramedics for assistance.
Id.
Approximately ten minutes after Complainant entered the police station,
Officer Fidazzo again asked her about what had happened. Complainant said
that she got into an argument with Appellee, her husband, and she provided
her Hempfield Township address to Officer Fidazzo. Officer Fidazzo recognized
that the address was not located within his jurisdiction, and he called the
Pennsylvania State Police (PSP) to commence an investigation.
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Regarding Complainant’s statements, Officer Fidazzo testified:
She indicated that she was assaulted by her husband and that
assault turned into some type of sexual assault in nature. She
indicated that he forced her to perform oral sex on him.
At that time, I kind of stopped her. Being that she was so upset,
she was hard to understand. I didn’t want to push the issue
further being that I didn’t personally need that information and
that she would have to repeat it all again in a little bit anyway.
Id. at 11.
Within minutes, PSP Troopers Kalen Gerhard and Brandon Boyd arrived
and saw that Complainant was “visibly shaking, distraught, crying.” Id. at
20. The troopers also observed that Complainant’s eye was “swollen and red,”
her lip was “cut and bloody,” her face was “bruised and red,” and she had
“visible scratches and marks on both sides of her neck.” Aff. of Probable
Cause, 10/30/17.2
Complainant informed the troopers that she and Appellee had been at a
bar, and they were “fighting a lot because [Appellee] physically abuses
[Complainant].” Id. After returning home, Appellee began to strike
Complainant in the head and face. Complainant alleged that Appellee threw
her onto the bed and forcibly penetrated her vagina with his penis. Despite
Complainant’s protests, Appellee continued the assault. Appellee pulled
Complainant’s hair and forced her to perform oral sex on him. Complainant
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2Although Troopers Gerhard and Boyd responded to the dispatch, another
PSP trooper, Joseph Lauricia, completed the affidavit of probable cause.
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also claimed that Appellee held her by the neck, choking her when she
attempted to get away.
Complainant eventually escaped and ran to a neighbor’s house for aid.
When the neighbor did not answer the door, Complainant drove to the
Greensburg City police station.
On January 2, 2018, the Commonwealth filed a criminal information
charging Appellee with rape, sexual assault, simple assault, and related
offenses.3 On February 27, 2018, the Commonwealth filed notice of its intent
to introduce evidence of prior bad acts, pursuant to Pa.R.E. 404(b).
Specifically, the Commonwealth emphasized other episodes of domestic
violence that occurred prior to the incident at issue:
On 7/[2]8/17, [Complainant] requested a [protection from abuse
(PFA) order] alleging that [Appellee] threatened to end her, that
he choked her, pushed her, and constantly screams at her and
that she believes he will kill her. That was dismissed on 8/22/17.
On 8/14/17, [Appellee] was charged with simple assault,
strangulation, and terroristic threats after [Complainant] reported
that [Appellee] grabbed her neck, put his hand over her mouth
and threatened to break her neck. [Complainant] refused to
cooperate with prosecution and the case was dismissed at the
preliminary hearing on 8/24/17.
Notice of Intent to Introduce Rule 404(b) Evid., 2/27/18, at 2 (unpaginated).
On March 5, 2018, the Commonwealth filed a motion in limine seeking
to admit, among other things, Complainant’s out-of-court statements to
Officer Fidazzo. The Commonwealth argued that Complainant’s statements
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3 18 Pa.C.S. §§ 3121(a)(1), 3124.1, and 2701(a)(1), respectively.
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were admissible under the “prompt complaint” and “excited utterance”
exceptions to the hearsay rule.
Appellee filed his own motion in limine on April 5, 2018. Appellee noted
that Complainant had appeared at a prior hearing for this matter, testifying
that she was under the influence of alcohol when she made her statements to
Officer Fidazzo and the PSP troopers. See Mot., 4/5/18, at ¶ 20. Appellee
also noted that if the Commonwealth called Complainant as a witness at trial,
“she will state that the events did NOT occur as she stated, particularly the
rape.”4 Id. at ¶ 27.
Appellee acknowledged that the Commonwealth intended to introduce
Complainant’s statements through testimony from other witnesses, but he
labeled the proposed testimony as “classic hearsay.” Id. at ¶ 31. Appellee
argued that Complainant’s statements “should not be admitted as they were
not given with any indicia of reliability as they were given at a time when
[Complainant] was under the influence of drugs and alcohol.” Id. at ¶ 33.
The trial court conducted two hearings on the parties’ various
evidentiary claims. At the second hearing, conducted on August 27, 2018,
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4 By way of background, the trial court conducted a hearing on Appellee’s
unrelated petition to reinstate bond on March 9, 2018. At that time,
Complainant testified that the alleged crimes did not occur, and she was under
the influence of alcohol and prescription medication on the night in question.
See N.T. Bond Hr’g, 3/9/18, at 25. Further, Complainant testified that she
and Appellee engage in consensual sexual activity that involves physical
striking. Id. at 33.
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the Commonwealth noted that it had filed another criminal complaint against
Appellee for a subsequent incident of domestic violence against Complainant
on June 22, 2018.5 Consequently, the Commonwealth amended its motion in
limine to request admission of this subsequent bad act. See N.T. Pretrial Hr’g
at 67.
By opinion and order entered January 17, 2019, the trial court denied
the Commonwealth’s request to admit Complainant’s statements to Officer
Fidazzo pursuant to the excited utterance exception. The trial court also ruled
that the Rule 404(b) evidence was inadmissible. Regarding the
Commonwealth’s arguments about the prompt complaint exception, the trial
court concluded that its applicability is “contingent upon the declarant-witness
testifying at trial and, as such, [is] not ripe for review.” Trial Ct. Op., 1/17/19,
at 1 n.2.
Regarding the Rule 404(b) evidence, the trial court found it inadmissible
because Complainant’s “recanted prior testimonial hearsay statements are not
substantial evidence that the [other] bad acts . . . occurred.” Id. at 3. To
support its ruling, the trial court cited Complainant’s prior testimony that she
and Appellee “engage in consensual sex that involves physical striking.” Id.
at 1 n.1. In light of this testimony, the trial court took “judicial notice of this
____________________________________________
5 The criminal complaint and affidavit of probable cause for the June 22, 2018
offenses appear in the certified record as an attachment to the
Commonwealth’s July 2, 2018 motion to revoke bond. Those documents
indicate that Appellee was intoxicated and started screaming at Complainant
about their marital problems. Appellee’s behavior escalated to the point where
he grabbed Complainant by the throat and threatened to kill her.
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discrete and undisputed fact for consideration of the parties’ motions in
limine.” Id.
The Commonwealth timely filed a notice of appeal on January 28, 2019.
The trial court ordered the Commonwealth to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal, which the Commonwealth timely
filed on February 15, 2019. The trial court subsequently filed a responsive
opinion.
The Commonwealth now raises five issues for our review:
[1]. Whether the trial court erred by excluding evidence consisting
of excited utterances where the court classified them as
testimonial in response to official police questioning, yet
[Complainant’s] statements were made while she was crying,
upset, bleeding, unclothed and asking for help, and were not
offered in formal structured police interrogation.
[2]. Whether the trial court erred in not considering admissibility
of [Complainant’s] initial report of sexual assault as prompt
complaint by indicating that admissibility is contingent upon
[Complainant] testifying at trial, where evidence of prompt
complaint of sexual assault is competent evidence that is properly
admitted when stated for the included purpose of establishing that
a complaint was made, and to identify the occurrence complained
of with the offense charged, and where there is no indication that
[Complainant] will not testify at trial.
[3]. Whether the trial court erred in excluding evidence of other
bad acts that are relevant to show res gestae and are necessary
to the Commonwealth’s case, without properly balancing the
probative value against the potential for prejudice including the
ability to exclude improper prejudice through cautionary
instructions.
[4]. Whether the [trial] court improperly denied the
Commonwealth’s admission of [Pa.R.E.] 404(b) evidence and
improperly considered credibility of [Complainant’s] recantation
statements made in this case in determining other bad acts
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evidence inadmissible when credibility is an issue for the jury, and
the prior PFA order is admissible by certified copy and evidence of
abuse between defendant and victim is generally admissible in a
domestic violence case, (See Commonwealth v. Drumheller,
808 A.2d 893 (Pa. 2002)), and can be shown despite victim
recantation.
[5]. Whether the trial court erred in taking judicial notice that
[Complainant] and [Appellee] regularly engage in consensual sex
involving physical striking, when the fact is neither generally
known in the community nor readily and accurately determinable
from accurate sources in the context of this domestic violence case
and because judicial notice of a fact constitutes evidence, the
Commonwealth then becomes obligated to rebut the inference
and credibility is an issue for the jury, and the question for the
jury is whether assault crimes occurred.
Commonwealth’s Brief at 4-5.
In its first issue, the Commonwealth emphasizes that Complainant “was
unclothed, visibly upset, shaking and bloody” when she “drove to a police
station and told [Officer Fidazzo] that she needed help.” Id. at 16. The
Commonwealth asserts that Officer Fidazzo “did not sit in the room with
[Complainant] or interrogate” her, but he did ask what happened. Id. The
Commonwealth contends Complainant’s response was not “in narrative form,”
and she “had difficulty talking about the event.” Id. at 17. Under these
circumstances, the Commonwealth maintains that Complainant’s statements
qualify as excited utterances, even if Complainant made the statements in
response to the officer’s question. Id. (citations omitted).
The Commonwealth acknowledges the trial court’s determination that
Complainant’s statements appeared less spontaneous because they occurred
some time after the assault. Id. at 18. The Commonwealth insists, however,
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that Complainant “left her home as fast as she could,” and the she was still
“distraught” at the time of her interaction with the officer. Id. The
Commonwealth concludes that the trial court erred in excluding Complainant’s
out-of-court statements to Officer Fidazzo. Id. at 24.
This Court’s standard of review for issues regarding the admissibility of
evidence is well settled:
Questions concerning the admissibility of evidence are within the
sound discretion of the trial court . . . [and] we will not reverse a
trial court’s decision concerning admissibility of evidence absent
an abuse of the trial court’s discretion. 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. If in reaching a
conclusion the trial court over-rides [sic] or misapplies the law,
discretion is then abused and it is the duty of the appellate court
to correct the error.
Commonwealth v. Belknap, 105 A.3d 7, 9-10 (Pa. Super. 2014) (citations
omitted and some formatting altered).
“Relevance is the threshold for admissibility of evidence.”
Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super. 2015) (en banc)
(citation 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 tends to support a reasonable inference or proposition
regarding a material fact. Relevant evidence may nevertheless be
excluded if its probative value is outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.
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Commonwealth v. Danzey, 210 A.3d 333, 342 (Pa. Super. 2019) (citation
omitted and some formatting altered).
Hearsay is an out-of-court statement made by a declarant, which a party
seeks to offer into evidence to prove the truth of the matter asserted in the
statement. Pa.R.E. 801(c). Generally, hearsay is not admissible except as
provided by the Pennsylvania Rules of Evidence, by other rules prescribed by
the Pennsylvania Supreme Court, or by statute. Pa.R.E. 802. “The rationale
for the hearsay rule is that hearsay is too untrustworthy to be considered by
the trier of fact.” Commonwealth v. Charlton, 902 A.2d 554, 559 (Pa.
Super. 2006) (citation omitted).
“Exceptions have been fashioned to accommodate certain classes of
hearsay that are substantially more trustworthy than hearsay in general, and
thus merit exception to the hearsay rule.” Id. (citation omitted).
Pennsylvania Rule of Evidence 803(2) provides one such exception, for excited
utterances, as follows:
A statement relating to a startling event or condition, made while
the declarant was under the stress of excitement that it caused.
When the declarant is unidentified, the proponent shall show by
independent corroborating evidence that the declarant actually
perceived the startling event or condition.
Pa.R.E. 803(2); see also Commonwealth v. Murray, 83 A.3d 137, 157-58
(Pa. 2013) (reiterating that “it must be shown first, that [the declarant] had
witnessed an event sufficiently startling and so close in point of time as to
render her reflective thought processes inoperable” (citation omitted)).
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The following factors guide this Court in evaluating whether an out-of-
court statement is admissible pursuant to the excited utterance exception:
1) whether the declarant, in fact, witnessed the startling event;
2) the time that elapsed between the startling event and the
declaration; 3) whether the statement was in narrative form
(inadmissible); and, 4) whether the declarant spoke to others
before making the statement, or had the opportunity to do so.
These considerations provide the guarantees of trustworthiness
which permit the admission of a hearsay statement under the
excited utterance exception. It is important to note that none of
these factors, except the requirement that the declarant have
witnessed the startling event, is in itself dispositive. Rather, the
factors are to be considered in all the surrounding
circumstances to determine whether a statement is an
excited utterance.
Commonwealth v. Keys, 814 A.2d 1256, 1258 (Pa. Super. 2003) (citations
omitted, some formatting altered, and emphasis in original); see also
Commonwealth v. Crosby, 791 A.2d 366, 370 (Pa. Super. 2002) (stating
that “[t]he excited utterance exception includes statements made in response
to questioning as well as those made shortly after the event. . . .” (citation
omitted)).
“There is no set time interval following a startling event or condition
after which an utterance relating to it will be ineligible for exception to the
hearsay rule as an excited utterance.” Pa.R.E. 803(2) cmt.
The declaration need not be strictly contemporaneous with the
existing cause, nor is there a definite and fixed time limit. . . .
Rather, each case must be judged on its own facts, and a lapse of
time of several hours has not negated the characterization of a
statement as an “excited utterance.” . . . The crucial question,
regardless of the time lapse, is whether, at the time the statement
is made, the nervous excitement continues to dominate while the
reflective processes remain in abeyance.
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Id. (citation omitted).
Instantly, Complainant informed Officer Fidazzo that Appellee physically
and sexually assaulted her. The assault amounts to a “startling event” for
purposes of the excited utterance exception. See Commonwealth v. Gray,
867 A.2d 560, 571 (Pa. Super. 2005) (holding that a witness who watched the
assault of her mother viewed a startling event for purposes of the excited
utterance exception).
Regarding the lapse in time between the assault and Complainant’s
statements, Officer Fidazzo observed that Complainant’s injuries were still
fresh when she arrived at the police station. See N.T. Pretrial Hr’g at 9-10.
Further, Complainant stated that she went to a neighbor’s house seeking aid
and that no one answered the door, then she immediately proceeded to the
police station. See Aff. of Probable Cause, 10/30/17.
Significantly, any lapse in time between the startling event and the
statements did not dissipate the “nervous excitement” Complainant felt after
the assault. See Pa.R.E. 803(2) cmt. Throughout his interaction with
Complainant, Officer Fidazzo described her as upset, shaking, crying,
breathing heavily, and difficult to understand. See N.T. Pretrial Hr’g at 9-15.
This evidence of Complainant’s demeanor established that she continued to
experience overpowering emotion caused by the startling event at the time
she made the statements. See Commonwealth v. Barnyak, 639 A.2d 40,
43-44 (Pa. Super. 1994) (explaining that statements made by a shooting
victim at the hospital shortly after the incident qualified as excited utterances;
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medical personnel who treated the victim testified that she was upset when
she came to the emergency room, and she was still upset when she left
approximately two hours later).
We also note that the trial court found Complainant’s statements to be
“testimonial” due to “calculated and paused questioning” by the police. See
Trial Ct. Op., 3/29/19, at 4. Officer Fidazzo testified, however, that he made
Complainant stop talking and he left the interview room after learning about
the assault. See N.T. Pretrial Hr’g at 10, 11. Officer Fidazzo testified: “I didn’t
interview her for her sake because she was so upset at that time, and I knew
it would be hard get anything valuable out of her. I got only what I needed
for that exact time.” Id. at 16.
This testimony reveals that Complainant’s statements were not the
result of calculated police interviewing techniques. Rather, Officer Fidazzo
asked Complainant about what happened to her. He immediately stopped all
questioning after receiving her answer alleging that Appellee assaulted her.
Under these circumstances, the record demonstrates that Complainant’s
out-of-court statements to Officer Fidazzo qualified as excited utterances.
See Pa.R.E. 803(2); Keys, 814 A.2d at 1258. Accordingly, the trial court
abused its discretion in denying the Commonwealth’s motion in limine on this
basis, and we reverse the trial court’s order to the extent it found that
Complainant’s statements to Officer Fidazzo were inadmissible. See
Belknap, 105 A.3d at 9-10.
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In its second issue, the Commonwealth contends that “[e]vidence of a
prompt complaint of sexual assault is competent evidence properly admitted
when limited to establish that a complaint was made and also to identify the
occurrence complained of with the offense charged.” Commonwealth’s Brief
at 25. The Commonwealth asserts that “[t]imeliness of complaint has been
deemed relevant and admissible generally to: explain inconsistency or silence;
to corroborate similar statements; or as a res gestae declaration.” Id. The
Commonwealth argues that Complainant’s initial contact with Officer Fidazzo
is admissible as a prompt complaint, regardless of whether Complainant
“testifies about the details of the event as she originally reported them.” Id.
at 27. The Commonwealth concludes that the trial court erred by not
determining whether it should admit Complainant’s statements to Officer
Fidazzo as a prompt complaint of the sexual assault. Id.
Pennsylvania Rule of Evidence 613 provides, in pertinent, as follows:
Evidence of a witness’s prior consistent statement is admissible to
rehabilitate the witness’s credibility if the opposing party is given
an opportunity to cross-examine the witness about the statement
and the statement is offered to rebut an express or implied charge
of . . . fabrication, bias, improper influence or motive, or faulty
memory and the statement was made before that which has been
charged existed or arose. . . .
Pa.R.E. 613(c)(1).
In cases involving sexual assault, Rule 613 authorizes the
Commonwealth to present evidence in its case-in-chief of a
prompt complaint by the victim because [the] alleged victim’s
testimony is automatically vulnerable to attack by the defendant
as recent fabrication in the absence of evidence of hue and cry on
her part. Evidence of a complaint of a sexual assault is competent
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evidence, properly admitted when limited to establish that a
complaint was made and also to identify the occurrence
complained of with the offense charged.
Commonwealth v. Bryson, 860 A.2d 1101, 1104 (Pa. Super. 2004) (en
banc) (citations omitted and some formatting altered).
Instantly, the trial court declined to rule on whether Complainant’s out-
of-court statements are admissible under the prompt complaint exception,
noting that the exception is contingent upon the declarant testifying at trial.
In light of the relevant caselaw, the trial court did not err in deferring its ruling,
and the Commonwealth is not entitled to relief on its second claim. See
Commonwealth v. Freeman, 441 A.2d 1327, 1332 n.4 (Pa. Super. 1982)
(stating that “[i]f the alleged victim does not testify that she was raped, then
evidence of her fresh complaints cannot corroborate such testimony and thus
is not admissible under this special evidential rule”).6
In its third and fourth issues, the Commonwealth contends that it sought
admission of Appellee’s other bad acts to demonstrate a “res gestae pattern
of domestic violence, absence of accident, common plan, intent, and to rebut
consent, not to show criminal character.” Commonwealth’s Brief at 29. The
Commonwealth maintains that the probative value of the other bad acts
evidence outweighs its prejudicial effect, and the trial court should not prohibit
the evidence merely because it is harmful to Appellee. Id. at 30.
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6We may rely on caselaw that predates the adoption of the Pennsylvania Rules
of Evidence so long as it is consistent with the current rules. See
Commonwealth v. Aikens, 990 A.2d 1181, 1185 n.2 (Pa. Super. 2010).
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The Commonwealth acknowledges the trial court’s finding that
Appellee’s other bad acts were unsupported by “substantial evidence” in light
of Complainant’s recantation. Id. at 33. The Commonwealth insists,
however, that substantial evidence supported the conclusion that Appellee
committed the other bad acts where (1) Complainant provided oral and
written statements about the acts; (2) officers observed Complainant’s
injuries and had personal knowledge of the charges against Appellee; and (3)
the PFA against Appellee is a self-authenticating document. Id. at 34. The
Commonwealth concludes that the trial court erred in excluding evidence of
Appellee’s other bad acts, which should be admitted pursuant to Rule 404(b).
Id. at 40.
“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.” Pa.R.E. 404(b)(1). However,
evidence of a crime, wrong, or another act “may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.” Pa.R.E.
404(b)(2). “In a criminal case this evidence is admissible only if the probative
value of the evidence outweighs its potential for unfair prejudice.” Id.
“An exception to Rule 404(b) exists that permits the admission of
evidence where it became part of the history of the case and formed part of
the natural development of facts. This exception is commonly referred to as
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the res gestae exception.” Commonwealth v. Ivy, 146 A.3d 241, 251 (Pa.
Super. 2016) (citations omitted).
The res gestae exception to the general proscription against
evidence of other crimes, is also known as the complete story
rationale, i.e., 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.
Where the res gestae exception is applicable, the trial court must
balance the probative value of such evidence against its prejudicial
impact. In conducting this balancing test, courts must consider
factors such as the strength of the other crimes evidence, the
similarities between the crimes, the time lapse between crimes,
the need for the other crimes evidence, the efficacy of alternative
proof of the charged crime, and the degree to which the evidence
probably will rouse the jury to overmastering hostility.
Our Supreme Court has stated that PFA petitions are admissible
and relevant to demonstrate the continual nature of abuse and to
show the defendant’s motive, malice, intent, and ill-will toward
the victim.
Commonwealth v. Yocolano, 169 A.3d 47, 55 (Pa. Super. 2017) (citations
omitted and some formatting altered).
“Evidence of prior bad acts may [also] be admitted to establish the
‘existence of a common scheme, [establish] an individual’s motive, intent, or
plan, or [identify] a criminal defendant as the perpetrator of the offense
charged.’” Ivy, 146 A.3d at 253 (citation omitted). “Two conditions must be
satisfied to admit prior-crimes evidence to establish a common scheme: (1)
the probative value of the evidence must outweigh its potential for prejudice
against the defendant and (2) a comparison of the crimes must establish a
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logical connection between them.” Id. (citation and quotation marks
omitted).
Instantly, the Commonwealth sought to introduce evidence of (1)
Complainant’s July 28, 2017 PFA petition against Appellee; (2) the charges
stemming from Appellee’s August 14, 2017 domestic violence incident; and
(3) the charges stemming from Appellee’s June 27, 2018 domestic violence
incident. Each piece of evidence included allegations of verbal abuse and
strangulation. Here, the probative value of the evidence outweighs its
potential for unfair prejudice, because the Commonwealth’s evidence fulfills
the res gestae exception by seeking to “complete the story of the crime by
proving its immediate context of happenings near in time and place.” See
Yocolano, 169 A.3d at 55; see also Ivy, 146 A.3d at 252 (noting that
“[e]vidence of prior abuse between a defendant and an abused victim is
generally admissible to establish motive, intent, malice, or ill-will”).
Moreover, each piece of evidence shares certain similarities, including
allegations of verbal abuse and strangulation perpetrated by Appellee against
Complainant during a period in which they experienced severe marital
distress. Pursuant to the relevant caselaw, the trial court should have
admitted the Commonwealth’s evidence under the common plan, scheme, or
design exception to Rule 404(b). See Ivy, 146 A.3d at 253; see also Aikens,
990 A.2d at 1185-86 (holding that the facts of a prior assault were “markedly
similar” to the present case such that evidence of the prior assault was
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admissible under the common scheme, design, or plan exception, and the
probative value of the evidence outweighed its prejudicial impact).
We acknowledge the trial court’s conclusion that “[t]he weakness of the
[other] bad acts evidence . . . weighed heavily in [its] analysis when balanced
against the potential for it to unfairly prejudice [Appellee].” Trial Ct. Op.,
3/29/19, at 9. Nevertheless, the trial court’s concern goes to the weight of
the evidence and not its admissibility. See Commonwealth v. Sherwood,
982 A.2d 483, 498 (Pa. 2009) (rejecting the appellant’s argument that the
trial court should not have admitted prior bad acts evidence through the
testimony of “an unreliable witness who had a motive to accuse” the appellant
of abusing the victim, because such a complaint goes to the weight of the
evidence and not its admissibility).7 Accordingly, the trial court abused its
discretion by prohibiting the Commonwealth from presenting evidence of
Appellee’s prior bad acts. See Belknap, 105 A.3d at 9-10.
In its fifth issue, the Commonwealth asserts that the trial court took
judicial notice of the fact that Complainant and Appellee regularly engage in
consensual sex that involves physical striking. Commonwealth’s Brief at 41.
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7 The trial court cited Commonwealth v. Donohue, 549 A.2d 121, 127 (Pa.
1988) (quoting McCormick, On Evidence, § 190, 451-52 (2d Ed. 1972)), for
the proposition that “for the jury to be entitled to consider [other bad acts]
there must . . . be substantial evidence of these facts. . . . And it is believed
that before the evidence is admitted at all, this factor of the substantial or
unconvincing quality of the proof should be weighed in the balance.” We note
that our Supreme Court decided Donohue before the adoption of, and
revisions to, Rule 404. Further, Donohue is distinguishable, because the
Court specifically addressed evidence of a prior criminal incident admitted
under the “absence of accident” exception. See Donohue, 549 A.2d at 127.
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The Commonwealth contends that the trial court based its judicial notice on
Complainant’s testimony at the pretrial hearing, despite the fact that other
evidence contradicts Complainant’s testimony. Id. The Commonwealth
argues that “[a] judicially noticed fact must not be subject to dispute in that
it is generally known or capable of accurate determination by sources whose
accuracy cannot be questioned.” Id. The Commonwealth concludes that the
trial court erred by taking judicial notice here, because “[t]he sexual practices
of [Appellee] and [Complainant] are not generally known . . . or capable of
accurate determination by resort[ing] to sources whose accuracy cannot
reasonably be called into question.” Id. at 42.
“The court may judicially notice a fact that is not subject to reasonable
dispute because it . . . is generally known within the trial court’s territorial
jurisdiction; or can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.” Pa.R.E. 201(b)(1)-(2).
A court may take judicial notice of an indisputable adjudicative
fact. A fact is indisputable if it is so well established as to be a
matter of common knowledge. Judicial notice is intended to avoid
the formal introduction of evidence in limited circumstances where
the fact sought to be proved is so well known that evidence in
support thereof is unnecessary.
Judicial notice allows the trial court to accept into evidence
indisputable facts to avoid the formality of introducing evidence to
prove an incontestable issue. However, the facts must be of a
matter of common knowledge and derived from reliable sources
whose accuracy cannot reasonably be questioned.
Commonwealth v. Brown, 839 A.2d 433, 435 (Pa. Super. 2003) (citations
and quotation marks omitted); see also In Interest of D.S., 622 A.2d 954,
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957 (Pa. Super. 1993) (stating that “a court cannot take judicial notice of a
disputed question of fact”).
Instantly, the trial court considered Complainant’s testimony from the
pretrial hearing and took judicial notice of her statement that she and Appellee
engage in consensual sex that involves physical striking. Regardless of what
information Complainant offered about her relationship with Appellee, her
testimony was not so reliable that its “accuracy cannot reasonably be
questioned.” See Brown, 839 A.2d at 435. We emphasize that
Complainant’s statements to the police detailing physical and sexual abuse,
followed by her recantation of those statements, establish that the nature of
her sexual relationship with Appellee is a disputed question of fact to be
resolved at trial. See D.S., 622 A.2d at 957. Therefore, the trial court abused
its discretion by taking judicial notice of the nature of Complainant’s sexual
relationship with Appellee. See Belknap, 105 A.3d at 9-10.
Based upon the foregoing, we reverse that portion of the January 17,
2019 order excluding Complainant’s hearsay statements pursuant to the
excited utterance exception of Rule 803(2). We also reverse that portion of
the order excluding evidence of Appellee’s other bad acts. We remand the
matter to Court of Common Pleas so that the case may proceed.8
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8On July 22, 2019, the Commonwealth filed an application to amend its brief,
seeking to correct to typographical errors in the “statement of the case”
section. We grant the Commonwealth’s application.
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Order reversed in part; case remanded. Commonwealth’s application
to amend its brief granted. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/16/2019
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