Com. v. Sucola, J. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JOHN SUCOLA : No. 428 WDA 2019
Appeal from the Order Entered March 18, 2019
In the Court of Common Pleas of Butler County Criminal Division at
No(s): CP-10-CR-0001153-2017
BEFORE: BOWES, J., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY LAZARUS, J.: FILED APRIL 15, 2020
The Commonwealth of Pennsylvania appeals from the order, entered in
the Court of Common Pleas, denying its pre-trial motion to introduce evidence
pursuant to Pa.R.E. 404(b). Upon careful review, we affirm.
The Commonwealth alleges, in the late evening on May 20, 2017, or the
early morning of May 21, 2017, John Sucola went to the home of his estranged
wife, Rachel Sucola, and, after being refused permission to enter, shattered
the home’s rear door and threw Rachel to the floor. Officer Randall Bauer
arrested Sucola shortly thereafter. Sucola was subsequently charged with
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* Retired Senior Judge assigned to the Superior Court.
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simple assault,1 harassment,2 possession of drug paraphernalia,3 and
possession of marijuana.4
On May 28, 2017, Rachel obtained an emergency ex parte protection
from abuse (PFA) order requiring Sucola to refrain from contacting Rachel or
their child. In support of the emergency PFA petition, Rachel provided the
court with a hand-written statement describing Sucola’s behavior subsequent
to his arrest. Specifically, Rachel alleged Sucola lingered outside her home
and at her place of business for three consecutive days. Subsequently, Rachel
petitioned for a temporary PFA order, which the court granted on June 6,
2017. The court issued a final PFA order on July 18, 2017, effective for three
years. During indirect criminal contempt (ICC) proceedings on September 27,
2018, the court found Sucola in violation of the final PFA order for screaming
at Rachel while exchanging custody of their fourteen-year-old son on August
23, 2018.5
Before Sucola’s trial was scheduled to begin, the Commonwealth filed a
motion in limine to introduce into evidence the PFA orders, Rachel’s hand-
written statement, and evidence from the ICC proceedings. See Motion,
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1 18 Pa.C.S.A. § 2701(a)(1).
2 18 Pa.C.S.A. § 2709(a)(1).
3 35 P.S. § 780-113(a)(32).
4 35 P.S. § 780-113(a)(31).
5 The court sentenced Sucola to ten days to six months’ incarceration.
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3/11/19, at 2 (“[T]he Commonwealth seeks to introduce evidence of
[Sucola’s] prior bad acts including PFA’s [sic] and criminal contempt to show
intent and course of conduct.”). On March 18, 2019, the court heard argument
on the motion, during which the Commonwealth argued the evidence was
admissible under Rule 404(b) for the non-propensity purpose of showing
Sucola’s “motive, malice or intent and . . . the continual nature of abuse.”
N.T. Hearing, 3/18/19, at 2. After determining the Commonwealth failed to
establish a connection between the proffered evidence to the crimes being
prosecuted, the court denied the Commonwealth’s motion. See id. (“We are
going to decide this case based on what [Sucola] is accused of doing in May.”).
On March 22, 2019, the Commonwealth timely filed a notice of appeal
and certified the court’s order substantially handicapped the prosecution
pursuant to Pa.R.A.P. 311(d). Both the Commonwealth and the court
complied with Pa.R.A.P. 1925. The Commonwealth raises the following
question for our review:
Whether a certified PFA [order] as against the defendant in
protection of the victim in the underlying offense; [sic] and, the
circumstances under which it was issued, are admissible evidence
of the history and natural development of the facts of the case,
pursuant to Pennsylvania case law and [Rule 404(b)], where the
incident giving rise to the PFA [order] occurred after the offense
charged?
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Brief of Appellant, at 5. Specifically, the Commonwealth “seeks to admit
evidence in this matter pursuant to the res gestae exception[6]” under Rule
404. Id. at 10.
Our standard of review regarding the denial of a motion in limine is well-
settled:
When ruling on a trial court’s decision to grant or deny a motion
in limine, we apply an evidentiary abuse of discretion standard of
review. The admission of evidence is committed to the sound
discretion of the trial court, and a trial court’s ruling regarding the
admission of evidence will not be disturbed on appeal unless that
ruling reflects manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support to be clearly erroneous.
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6 We note with disapproval the sloppiness with which the Commonwealth has
litigated Sucola’s case to this point. As discussed further infra, while arguing
before the trial court, the assistant district attorney seemed unfamiliar with
even the most basic facts underpinning her motion. See N.T. Hearing,
3/18/19, at 3 (seeking admission of material from ICC hearing and underlying
PFA orders for non-propensity purpose of showing course of conduct, but
admitting she lacked knowledge of facts underpinning both PFA and ICC
proceedings). Moreover, though we do not find the Commonwealth’s
argument waived in its entirety, we find it concerning that the Commonwealth
failed to articulate clearly an argument advocating for the admission of
evidence at issue under the res gestae exception at any point before filing its
appellate brief. See id. at 2 (omitting mention of res gestae; arguing for
admission on grounds that evidence would show “continual nature of abuse”);
see also Motion, 3/11/19, at 2 (seeking to introduce “prior bad acts including
PFA’s [sic] and criminal contempt to show intent and course of conduct”). We,
however, find the Commonwealth waived its initial arguments regarding
motive, malice or intent and evaluate the proffered evidence solely to
determine whether it furthers the non-propensity purpose of establishing the
history of the case under the res gestae exception. See Commonwealth v.
Sanchez, 36 A.3d 24, 72 (Pa. 2011) (precluding review of arguments
abandoned on appeal).
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Commonwealth v. Ivy, 146 A.3d 241, 251 (Pa. Super. 2016) (citation
omitted).
The trial court denied the Commonwealth’s motion in limine under Rule
404, which provides, in relevant part, as follows:
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).
Our Supreme Court has consistently recognized the propriety of
admitting evidence of bad acts, distinct from the charged crimes, “where it is
part of the history or natural development of the case, i.e., the res gestae
exception.” Commonwealth v. Brown, 52 A.3d 320, 326 (Pa. Super. 2012).
In other words, the exception applies to bad acts “which are so clearly and
inextricably mixed up with the history of the guilty act itself as to form part of
one chain of relevant circumstances, and so could not be excluded on the
presentation of the case before the jury without the evidence being rendered
thereby unintelligible.” Commonwealth v. Knoble, 188 A.3d 1199, 1205
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(Pa. Super. 2018) (citation omitted). “Where the res gestae exception is
applicable, the trial court must balance the probative value of such evidence
against its prejudicial impact.” Brown, supra at 326; see also
Commonwealth v. Weakley, 972 A.2d 1182, 1191 (Pa. Super. 2009)
(balancing occurs after non-propensity purpose established under Rule
404(b)).
The trial court denied the Commonwealth’s motion on the grounds that
it failed to establish a permissible purpose for the proffered evidence.7 See
Pa.R.A.P. 1925(a) Opinion, 5/21/19, at 4–5. We agree.
When the trial court asked the Commonwealth whether it sought to
introduce “a PFA [order] . . . based on the same facts as [the] trial,” the
assistant district attorney responded, “I don’t know if it’s based on the same
facts.” N.T. Hearing, 3/18/19, at 4. When the court asked what Sucola did
to violate the PFA order, the assistant district attorney responded “obviously
it would have been some violation of the PFA[ order,]” before saying “the
indirect criminal contempt . . . has nothing to do with the charges that are
here.” Id. at 4–5. When asked why the proffered evidence was relevant to
“the underlying allegations of the crime[,]” the Commonwealth replied with a
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7 The court also found the prejudicial impact of the proffered evidence
outweighed its probative value, and noted that the evidence could
alternatively be excluded under Pa.R.E. 403. See Pa.R.A.P. 1925(a) Opinion,
5/21/19, at 4–5.
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bald assertion that the conduct constituted “continual harassment[,]”
rendering the evidence admissible. Id. at 6.
We find the Commonwealth’s half-hearted argument failed to establish
the relevance of these events to the history of the case, thereby precluding
their admission under the res gestae exception. See Knoble, supra at 1205.
The fact that the evidence concerns events which took place after the crimes
for which Sucola stands accused, without an explanation of how Sucola’s
subsequent behavior is relevant to either the charged crimes or the
prosecution of this case, fatally undermines any argument that this evidence
is necessary to explain “the complete story or natural developments forming
the history of the case.” Crispell, supra at 937. Therefore, the res gestae
exception to the general prohibition against evidence of other bad acts is
inapplicable.8 See Knoble, supra at 1205 (admitting evidence under res
gestae exception requires “the case before the jury without the evidence [to
have been] rendered thereby unintelligible.”).
The Commonwealth, at length, argues the trial court committed an
abuse of discretion by failing to find the proffered evidence admissible under
the holding of either Commonwealth v. Drumheller, 808 A.2d 893 (Pa.
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8 We, therefore, do not engage in the balancing test under Rule 404. See
Weakley, supra at 1191 (requiring balancing test after permissible non-
propensity purpose is identified.).
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2002), or Commonwealth v. Ivy, 146 A.3d 241, 251 (Pa. Super. 2016).
Brief of Appellant, at 12–20. Both cases are distinguishable.
In Drumheller, the Commonwealth sought to admit as evidence four
PFA petitions, all of which had been granted on behalf of a wife against her
husband, while prosecuting the husband for his wife’s murder. Drumheller,
supra at 897–98. These petitions contained descriptions of physical abuse
and verbal threats, including threats against the victim’s life, all of which
formed a pattern of abuse leading up to the defendant killing his wife. Id.
Our Supreme Court deemed these PFA orders admissible as part of “the chain
or sequence of events that formed the history of the case” because they were
relevant to the continual and escalating nature of [husband’s] abuse of
[wife.]” Id. at 905.
We find the Drumheller Court’s ruling distinguishable because the PFA
orders involved in that case, by virtue of having been granted before the
crimes being tried, logically provided context critical to understanding the
defendant’s course of conduct leading up to the crime.9 See id.; see Knoble,
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9 The Commonwealth also cites Drumheller for the proposition that the
timing of abuse is immaterial, stating “evidence of abuse is relevant, and the
timeliness of its occurrence more properly affects the weight of the evidence
rather than its admissibility.” Brief of Appellant, at 16 (citing Drumheller,
supra at 905). This is a mischaracterization of the law; the Drumheller
Court referenced timing insofar as it evaluated whether the remoteness in
time between two events impacted weight or admissibility. Drumheller,
supra at 905. The instant situation, however, does not concern the distance
in time between two events, but rather, hinges on how a preceding event
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supra at 1205 (requiring evidence admitted under res gestae exception be
“inextricably mixed up with the history of the guilty act itself as to form part
of one chain of relevant circumstances [.]”); see also Robinson, supra at
497 (admitting evidence under res gestae exception on grounds that it was
“intricately interwoven” and “provided the jury with a complete story[.]”).
Ivy, supra, features a superficially similar scenario, albeit with
important factual and legal differences. In Ivy, supra, the Commonwealth
sought to admit evidence of a victim’s PFA order against the defendant and
his violation thereof—events which occurred after the conduct for which the
defendant was being tried. Id. at 252. Critically, however, the
Commonwealth established that the defendant violated the PFA order by
engaging a third party to instruct the victim to either withdraw the charges
for which he was being tried, refuse to appear at the preliminary hearing, or
both. See id. at 252.
We found the evidence admissible both as res gestae and to prove
consciousness of guilt, in spite of the fact that the charged conduct preceded
the PFA order, because the Commonwealth established the evidence’s role in
providing context to subsequent events that were critical to contextualizing
the case. See id. Namely, the defendant’s PFA violation constituted an
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impacts a subsequent event, i.e. the crimes for which Sucola stands accused
occurred before Rachel sought the initial ex parte PFA order, and the
Commonwealth failed to establish the relevance of those subsequent events
to the broader history of the case.
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attempt to interfere with the case at trial, thereby properly rendering it part
of “the history of the case.” Id.; see also id. (“[I]t is necessary for the jury
to know exactly what the PFA order stated and the nature of the [defendant’s]
violation” because violation evinced both defendant’s “state of mind” and his
“consciousness of . . . guilt.”). Moreover, we found the trial court “wholly
failed to substantiate” its finding that the prejudicial impact of the proffered
evidence outweighed its probative value, and it was this failure that
“compel[ed] our conclusion that the order should be reversed.” Id. at 252.
Instantly, however, it was the Commonwealth who wholly failed to
substantiate the importance of the proffered evidence. See N.T. Hearing,
3/18/19, at 4–7. Generally, we have admitted evidence of PFA orders that
precede a crime of domestic violence as res gestae because preceding events
naturally explain how “the incident at issue logically grew out of the prior set
of circumstances[.]” Commonwealth v. Yocolano, 169 A.3d 47, 55 (Pa.
Super. 2017). Such evidence, however, is not admitted because the res
gestae exception only applies to prior bad acts, but rather, because earlier
events generally constitute the history and development of a case and not
vice versa. See id.; see Ivy, supra at 252. Ivy, supra simply illustrates
that bad acts occurring after a charged crime can play a critical role in
understanding the history of a case, albeit under circumstances where the
Commonwealth explains how those subsequent acts played a role in how the
case unfolded. See Ivy, supra at 252.
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We, therefore, conclude the trial court did not misapply the law or abuse
its discretion in denying the Commonwealth’s motion for the introduction of
evidence under Rule 404(b). See id. at 241; see also Knoble, supra at
1205.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/15/2020
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