Com. v. Wigfall, E. ( 2017 )


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  • J-A04042-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellant
    v.
    EDROY WIGFALL,
    Appellee                 No. 3557 EDA 2015
    Appeal from the Order October 29, 2015
    in the Court of Common Pleas of Philadelphia County
    Criminal Division at No.: CP-51-CR-0012295-2011
    BEFORE: SHOGAN, J., SOLANO, J., and PLATT, J.*
    MEMORANDUM BY PLATT, J.:                             FILED MARCH 27, 2017
    The Commonwealth appeals from the trial court’s order denying its
    motion in limine seeking the admission of prior bad acts evidence in its case
    against Appellee, Edroy Wigfall.1 We affirm.
    We take the relevant facts and procedural history of this matter from
    our independent review of the certified record.        This case arises from
    Appellee’s alleged straw purchases, in coordination with co-defendant Louis
    Dawkins (Dawkins), of three firearms through Tracey Barats (Barats) in
    January of 2011. At that time, Barats was residing with a friend, Jill Johnson
    ____________________________________________
    *
    Retired Senior Judge assigned to the Superior Court.
    1
    The Commonwealth has certified that the court’s order terminates or
    substantially handicaps the prosecution. See Pa.R.A.P. 311(d).
    J-A04042-17
    (Johnson), an associate of Appellee and Dawkins.           On January 11, 2011,
    while speaking with Johnson over the telephone, Appellee asked her to
    purchase a gun, and she declined.         Johnson then asked Barats, who was
    present in the room with her, to purchase the gun, and Barats assented.
    Appellee picked Barats up at Johnson’s residence and began to drive her to a
    gun shop to purchase a firearm. Appellee then called Dawkins and arranged
    for him to bring Barats to the gun shop instead.           Dawkins gave Barats
    money to purchase the gun, and she filled out the requisite paperwork at the
    shop. Barats picked up the gun the following day, and gave it to Dawkins.
    Barats was not compensated for the transaction.
    A few days later, on January 14, 2011, Appellee and Dawkins
    contacted Barats and Johnson and informed them that a gun shop was
    having a sale. Dawkins gave Barats money to purchase two firearms, and
    she completed the purchase after filling out the associated paperwork.
    Dawkins provided Barats with two grams of cocaine after the transaction.
    Police obtained an arrest warrant for Appellee and a search warrant for
    his home, and they recovered a gun box from the home. Police traced the
    serial number on the gun box to a firearm Johnson had purchased on June 2,
    2005.     Police did not recover from the home any of the guns Barats
    purchased in 2011.
    During   the   police   investigation,   Johnson   provided   inconsistent
    information regarding four gun purchases she made in 2005. In an October
    4, 2011 statement, Johnson indicated that she purchased the guns in 2005
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    for her own personal use, and not for someone else.         (See N.T. Hearing,
    8/25/15, at 6-8).       Years later, on September 10, 2015, Johnson gave a
    statement indicating that she purchased four firearms for Appellee and
    Dawkins in 2005.        (See Johnson Interview, 9/10/15, at 1-3).    However,
    Johnson did not remember actually purchasing two of the firearms, and she
    attributed her faulty memory to oxycodone use. (See 
    id. at 2).
    The Commonwealth filed an information charging Appellee with
    numerous offenses in connection with the 2011 firearms purchases,
    including person not to possess a firearm, criminal conspiracy, and unsworn
    falsification to authorities. On August 24, 2015, the Commonwealth filed a
    motion in limine seeking to admit prior bad acts evidence at trial indicating
    that Johnson purchased four firearms for Appellee and Dawkins in June of
    2005.     See Pa.R.E. 404(b).        The trial court denied the Commonwealth’s
    motion on October 29, 2015, following a hearing.            This timely appeal
    followed.2
    The Commonwealth raises the following question for our review:
    Did the [trial] court err in excluding evidence of
    [Appellee’s] prior illegal purchases of handguns—committed with
    two of the same co-conspirators—which was relevant to
    establish the existence of a conspiracy, to place the cooperating
    ____________________________________________
    2
    The Commonwealth filed a concise statement of errors complained of on
    appeal contemporaneously with its notice of appeal. See Pa.R.A.P. 1925(b).
    The court entered a Rule 1925(a) opinion on May 5, 2016. See Pa.R.A.P.
    1925(a).
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    J-A04042-17
    witnesses’ testimony in context, and to show a common plan,
    scheme or design?
    (Commonwealth’s Brief, at 4).3
    In its issue on appeal, the Commonwealth challenges the trial court’s
    ruling that evidence relating to Appellee’s involvement in the 2005 firearms
    purchases by Johnson was inadmissible at his trial on the 2011 offenses.
    (See 
    id. at 13).
    The Commonwealth argues that the evidence is admissible
    as a prior bad act pursuant to Pa.R.E. 404(b)(2), and is relevant to inform
    the jury of the complete story of this case, to place Johnson’s and Barats’
    accounts in context, and to reveal a common scheme, plan, or design
    between the 2005 and 2011 purchases.             (See 
    id. at 13-29).
      This issue
    merits no relief.
    Our standard of review is as follows:
    Questions concerning the admission of evidence are left to
    the sound discretion of the trial court, and we, as an appellate
    court, will not disturb the trial court’s rulings regarding the
    admissibility of evidence absent an abuse of that 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. [I]f in reaching a conclusion the trial court overrides or
    misapplies the law, discretion is then abused and it is the duty of
    the appellate court to correct the error.
    Commonwealth v. Sitler, 
    144 A.3d 156
    , 163 (Pa. Super. 2016) (en banc)
    (citations and quotation marks omitted).
    ____________________________________________
    3
    Appellee did not file a brief.
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    “Relevance    is    the   threshold   for   admissibility   of     evidence.”
    Commonwealth v. Tyson, 
    119 A.3d 353
    , 358 (Pa. Super. 2015) (en banc),
    appeal denied, 
    128 A.3d 220
    (Pa. 2015) (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 supports a reasonable
    inference or presumption regarding a material fact.” 
    Id. (citation omitted).
    “All relevant evidence is admissible, except as otherwise provided by law.”
    
    Id. (citation omitted).
    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.
    The Commonwealth must prove beyond a reasonable
    doubt that a defendant has committed the particular crime of
    which he is accused, and it may not strip him of the presumption
    of innocence by proving that he has committed other criminal
    acts.
    *    *    *
    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.”         Pa.R.E.
    404(b)(1).    While Rule 404(b)(1) gives way to recognized
    exceptions, the exceptions cannot be stretched in ways that
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    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. . . .
    Commonwealth v. Ross, 
    57 A.3d 85
    , 98–99, 104 (Pa. Super. 2012) (en
    banc), appeal denied, 
    72 A.3d 603
    (Pa. 2013) (case citations and footnote
    omitted).
    When ruling upon the admissibility of evidence under the
    common plan exception, the trial court must first examine the
    details and surrounding circumstances of each criminal incident
    to assure that the evidence reveals criminal conduct which is
    distinctive and so nearly identical as to become the signature of
    the same perpetrator. Relevant to such a finding will be the
    habits or patterns of action or conduct undertaken by the
    perpetrator to commit crime, as well as the time, place, and
    types of victims typically chosen by the perpetrator. Given this
    initial determination, the court is bound to engage in a careful
    balancing test to assure that the common plan evidence is not
    too remote in time to be probative. If the evidence reveals that
    the details of each criminal incident are nearly identical, the fact
    that the incidents are separated by a lapse of time will not likely
    prevent the offer of the evidence unless the time lapse is
    excessive. Finally, the trial court must assure that the probative
    value of the evidence is not outweighed by its potential
    prejudicial impact upon the trier of fact. To do so, the court
    must balance the potential prejudicial impact of the evidence
    with such factors as the degree of similarity established between
    the incidents of criminal conduct, the Commonwealth’s need to
    present evidence under the common plan exception, and the
    ability of the trial court to caution the jury concerning the proper
    use of such evidence by them in their deliberations.
    Tyson, supra at 358–59 (citation omitted).       “[M]uch more is demanded
    than the mere repeated commission of crimes of the same class, such as
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    repeated burglaries or theft.” Commonwealth v. Semenza, 
    127 A.3d 1
    , 8
    (Pa. Super. 2015) (citation omitted).
    “[Our Supreme] Court has also recognized the res gestae exception,
    permitting the admission of evidence of other crimes or bad acts to tell ‘the
    complete story.’”      Commonwealth v. Hairston, 
    84 A.3d 657
    , 665 (Pa.
    2014), cert. denied, 
    135 S. Ct. 164
    (2014) (citation omitted).              “Such
    evidence may be admitted, however, only if the probative value of the
    evidence outweighs its potential for unfair prejudice.”        
    Id. (citation and
    internal quotation marks omitted). “A final requirement is that if evidence of
    a prior criminal incident is to be admitted under [an] exception, it must be
    determined by the court to be established by substantial evidence[.]”
    Commonwealth v. Donahue, 
    549 A.2d 121
    , 127 (Pa. 1988) (citation and
    emphasis omitted). “[B]efore the evidence is admitted at all, this factor of
    the substantial or unconvincing quality of the proof should be weighed in the
    balance.” 
    Id. (citation omitted).
    Instantly, the trial court determined that the evidence at issue was not
    admissible under the common plan or res gestae exception.             (See Trial
    Court Opinion, 5/05/16, at 3-5).           The court further found that the
    Commonwealth appeared to be advancing a criminal propensity argument
    regarding Appellee, and that the proffered evidence regarding the 2005
    Johnson purchases was unreliable. (See 
    id. at 5-6).
    We agree with the trial
    court.
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    Specifically, a review of the record demonstrates that any connection
    between the 2005 and the 2011 firearms purchases is tenuous, and the
    evidence does not establish any type of signature behavior on the part of
    Appellee, or a common plan or scheme.               Although the Commonwealth
    repeatedly claims that the “same individuals” and “same purchaser”
    participated in each incident, (Commonwealth’s Brief, at 24-25 (emphasis
    omitted); see 
    id. at 22),
    this assertion is belied by the record, which reflects
    that Barats, the purchaser of the firearms in 2011, is not implicated at all in
    the Johnson purchases, which occurred six years earlier.
    Furthermore, the record supports the trial court’s conclusion that the
    Commonwealth failed to present adequate evidence that the 2005 straw
    purchases actually occurred. Johnson’s 2015 statement implicating Appellee
    and Dawkins in those purchases directly conflicts with her earlier statement
    that she purchased the firearms for her own use. Moreover, Johnson’s 2015
    statement appears unreliable on its face, in that she readily admits that she
    does not remember purchasing two of the firearms because she “was on
    Oxys a lot at the time.” (Johnson Interview, 9/10/15, at 2). Although police
    found a gun box linked to a 2005 Johnson purchase in Appellee’s home, they
    did not recover firearms, and neither Appellee nor Dawkins were prosecuted
    in connection with the 2005 purchases.
    In sum, we conclude that the trial court did not abuse its discretion in
    declining   to   admit   the   prior   bad   acts   evidence   proffered   by   the
    Commonwealth. See Sitler, supra at 163. At best, the Commonwealth has
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    shown evidence of only “the mere repeated commission of crimes of the
    same class,” which is insufficient to establish an exception to the general
    rule barring prior bad acts evidence.        Semenza, supra at 8 (citation
    omitted). The Commonwealth failed to demonstrate any type of signature
    or distinctive criminal conduct on the part of Appellee, or establish “a close
    factual nexus [between the two incidents] sufficient to demonstrate the
    connective relevance of” the 2005 Johnson purchases to the instant case.
    Ross, supra at 104; see also Tyson, supra at 358–59.           Therefore, the
    Commonwealth’s issue on appeal does not merit relief.        Accordingly, we
    affirm the order of the trial court.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 3/27/2017
    -9-
    

Document Info

Docket Number: Com. v. Wigfall, E. No. 3557 EDA 2015

Filed Date: 3/27/2017

Precedential Status: Precedential

Modified Date: 4/17/2021