Com. v. Lemo, E. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
:
v. :
:
:
ESAD LEMO :
:
Appellant : No. 922 WDA 2018
Appeal from the Judgment of Sentence Entered March 20, 2009
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0013042-2006
BEFORE: SHOGAN, J., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED JUNE 11, 2020
Appellant, Esad Lemo, appeals from the March 20, 2009 judgment of
sentence of life imprisonment without the possibility of parole after Appellant
was convicted, in a non-jury trial, of first-degree murder.1 We affirm.2
A prior panel of this Court summarized the factual and procedural history
as follows:
____________________________________________
1 18 Pa.C.S.A. § 2502(a).
2 On March 30, 2020, Appellant filed a letter drawing this Court’s attention to
our Supreme Court’s recent decision in Commonwealth v. Diaz, 2020 WL
1479846 (Pa. March 26, 2020) (slip opinion). The Commonwealth filed a
response to Appellant’s letter that same day. The Prothonotary for this Court
identified Appellant’s letter as a motion pursuant to Pa.R.A.P. 2501(b).
Although we understand this letter to be required notification, pursuant to
Rule 2501(b), of a change in authoritative law relied upon in a party’s brief,
to the extent this letter was deemed to be a motion, it should be granted as
we have considered the material identified therein.
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[Appellant] engaged in a pattern of physical and sexual
abuse of his wife during their marriage. After she left him
and filed for divorce, [Appellant] drove to her residence,
observed her on the street, made a U-turn, and then
deliberately drove his car into his wife and propelled her
against a wall, instantly killing her.
Commonwealth v. Lemo, [2011 WL 7118829 (Pa. Super.
October 6, 2011) (unpublished memorandum).]
After taking him to a local hospital for medical evaluation, police
questioned [Appellant]. [Appellant] is a Bosnian immigrant who
apparently neither reads nor writes the English language and
whose spoken English is less than rudimentary; accordingly, police
arranged for a local Serbo-Croatian[3] immigrant to translate the
reading of [Appellant’s] Miranda[4] rights and the subsequent
interrogation. After waiving his rights, [Appellant] told police that
he had blacked out at the time of the incident. When confronted
with another prior statement that the car's brakes had failed,
[Appellant] admitted to striking his wife with the car.
Before his preliminary hearing, [Appellant] filed a motion seeking
involuntary commitment to a mental health facility. On August
31, 2006, [the trial court] denied the petition. The next day, the
magisterial district court held [Appellant’s] preliminary hearing
and bound [Appellant’s] case over on the single charge of criminal
homicide.
On December 7, 2006, [Appellant] filed a second petition for
involuntary commitment to a mental health facility. On December
14, 2006, the trial court granted this petition, committing
[Appellant] to the care of Mayview State Hospital for 90 days.
Throughout pre-trial discovery and motions practice, a number of
physicians and psychologists evaluated [Appellant], using
interpreters to ensure that [Appellant] could effectively participate
in these evaluations. Both the Commonwealth and [Appellant’s
counsel] amassed a large amount of information on his mental
state in anticipation of a diminished-capacity defense, which
indicated that, at a minimum, [Appellant] had borderline mental
retardation.
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3 Serbo-Croatian is a common language used by Bosnians.
4 Miranda v. Arizona, 384 U.S. 436 (1966).
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On January 8, 2009, [Appellant] filed an omnibus pre-trial motion,
which included a notice of mental infirmity defense and a motion
to suppress statements police elicited from [Appellant] through
the interpreted interrogation. With respect to the motion to
suppress, [Appellant] asserted that he did not knowingly,
intelligently, and voluntarily waive his Miranda rights. On
January 21 and January 22, 2009, the trial court held a
suppression hearing, after which it denied the motion. While it
recognized that [Appellant] fell “within the purview of mental
retardation,” the trial court concluded that this condition “does not
mean that he cannot understand what his rights are or that he is
prohibited from waiving those particular rights.”
At the end of the suppression hearing, [Appellant’s] counsel told
the trial court that [Appellant] was willing to waive his right to a
jury trial and proceed [with a] non-jury [trial]. [Appellant’s]
counsel explained that he went “through the entire waiver with
[Appellant] in which he explained everything in great detail with
his translator.” Counsel further explained that he “spent at least
an hour just on the waiver for the non-jury trial and he was
prepared to do the waiver again.”
[Appellant’s] trial commenced on March 12, 2009. At trial,
[Appellant] presented a diminished-capacity defense, arguing that
he was incapable of forming the intent required for murder, let
alone premeditation. On March 16, 2009, the trial court found
[Appellant] guilty of first-degree murder. On March 20, 2009, the
trial court sentenced [Appellant] to life in prison without the
possibility of parole.
On March 27, 2009, [Appellant] filed a post-sentence motion,
challenging the weight of the evidence with respect to his intent
to kill. Following a hearing, on May 27, 2009, the trial court denied
the motion. [Appellant] was appointed new appellate counsel and
timely appealed to this Court. On October 6, 2011, [this Court]
affirmed [Appellant’s] judgment of sentence. On November 9,
2011, [Appellant] filed a petition for allowance of appeal, which
the Pennsylvania Supreme Court denied on June 1, 2012.[]
On August 1, 2014, [Appellant] filed a pro se []petition [pursuant
to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.
§§ 9541-9546]. On January 27, 2015, [Appellant] sought leave
to supplement his PCRA petition. On March 4, 2015, the PCRA
court issued an order appointing [counsel] to represent
[Appellant] for the PCRA proceedings and granting [Appellant]
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until May 4, 2015 to amend his PCRA petition. On April 9, 2015,
PCRA counsel filed a motion for leave to withdraw and enclosed a
Turner/Finley[5] [no-merit] letter. [PCRA counsel] served these
documents on both [Appellant] and the Commonwealth, providing
[Appellant] with transcripts of his pre-trial, trial, sentencing, and
post-sentencing proceedings. On April 13, 2015, the PCRA court
issued a notice of intent to dismiss the PCRA petition without a
hearing [pursuant to Pa.R.Crim.P. 907]. On August 17, 2015, the
PCRA court dismissed the PCRA petition. On August 27, 2015,
[Appellant] filed a timely notice of appeal.
On July 14, 2015, before the PCRA court dismissed the petition,
[Appellant] filed a petition for writ of habeas corpus pursuant to
28 U.S.C.[A.] § 2254 in the United States District Court for the
Western District of Pennsylvania. On August 10, 2015, the district
court appointed the Federal Public Defender's Office to represent
[Appellant] in his habeas corpus action.[6] On February 18, 2016,
[Appellant] filed a motion to expand the appointment of [the]
Federal Public Defender[.] On February 22, 2016, the district
court granted [Appellant’s] motion[.]
Commonwealth v. Lemo, 2017 WL 3443802, at *1-3 (Pa. Super. August
11, 2017) (unpublished memorandum) (record citations, original brackets,
original footnotes, and ellipses omitted).
This Court vacated the order dismissing Appellant’s PCRA petition and
remanded the case for an evidentiary hearing to determine if Appellant
satisfied a jurisdictional time-bar exception in his untimely PCRA petition.7 Id.____________________________________________
5Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
6On November 16, 2015, the United States District Court stayed the habeas
corpus action.
7 The three narrow statutory exceptions to the PCRA jurisdictional time-bar
are as follows: “(1) interference by government officials in the presentation of
the claim; (2) newly discovered facts; and (3) after-recognized constitutional
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at *1. On December 18, 2017, the PCRA court found that Appellant satisfied
the governmental interference exception to the jurisdiction time-bar pursuant
to 42 Pa.C.S.A. § 9545(b)(1)(i) and permitted Appellant to file an amended
PCRA petition. On May 25, 2018, Appellant filed a motion to reinstate his
direct appeal rights nunc pro tunc, which the Commonwealth did not oppose.
The PCRA court reinstated Appellant’s direct appeal rights nunc pro tunc on
June 19, 2018. This appeal followed.8
Appellant raises the following issues for our review:
I. Did the [trial] court err when it failed to comply with the
applicable rules governing the mental health treatment and
court-ordered examinations of [Appellant]?
II. Did the [trial] court err when it proceeded with the
suppression hearing even after being informed by the
prosecutor that the interpreter had not been interpreting the
proceedings for the non-English speaking [Appellant]?
III. Did the trial court err in admitting evidence of
uncorroborated, withdrawn, remote, and largely
unadjudicated allegations of abuse relating to [Appellant’s]
family division litigation?
Appellant’s Brief at 2 (extraneous capitalization omitted).
In his first issue, Appellant claims the trial court failed to comply with
Pa.R.Crim.P. 569 when it ordered Appellant to submit to a mental health
____________________________________________
right.” Commonwealth v. Brandon, 51 A.3d 231, 233-234 (Pa. Super.
2012), citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii).
8 Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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evaluation by the Commonwealth’s expert witness without first apprising
Appellant, in person and in the presence of his counsel, of his rights.9
Appellant’s Brief at 20-34.
____________________________________________
9 Pennsylvania Rule of Criminal Procedure 569 states, in pertinent part,
Rule 569. Examination of Defendant by Mental Health
Expert
(A) Examination of Defendant.
....
(2) By Court Order.
(a) Upon motion of the attorney for the Commonwealth, if
the court determines the defendant has provided notice of
an intent to assert a defense of insanity or mental infirmity
or notice of the intention to introduce expert evidence
relating to a mental disease or defect or any other mental
condition of the defendant pursuant to Rule 568, the court
shall order that the defendant submit to an examination by
one or more mental health experts specified in the motion
by the Commonwealth for the purpose of determining the
mental condition put in issue by the defendant.
(b) When the court orders an examination pursuant to this
paragraph, the court on the record shall advise the
defendant in person and in the presence of defendant's
counsel:
(i) of the purpose of the examination and the contents
of the court's order;
(ii) that the information obtained from the
examination may be used at trial; and
(iii) the potential consequences of the defendant's
refusal to cooperate with the Commonwealth's mental
health expert(s).
Pa.R.Crim.P. 569(A)(2)(a) and (b).
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Before addressing the merits of Appellant’s issue, however, we must
first examine whether Appellant waived this issue. Appellant must concisely
identify in his Rule 1925(b) statement the error that he intends to assert with
sufficient detail to identify the issue for the trial court or the issue is waived.
Pa.R.A.P. 1925(b)(4)(ii) (stating, “[t]he [s]tatement shall concisely identify
each error that the appellant intends to assert with sufficient detail to identify
the issue to be raised for the judge”); see also Pa.R.A.P. 1925(b)(4)(vii)
(stating, “[i]ssues not included in the [s]tatement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived”).
Appellant may choose to cite to appropriate authority or the record in order
to provide sufficient detail, although it is not necessary. Pa.R.A.P.
1925(b)(4)(ii).
The trial court, in addressing Appellant’s issue, stated, “[t]his claim of
error fails to identify what [c]ourt rules were violated and what [c]ourt
[o]rders were not followed in examining [Appellant]. Without identifying the
failure that this [trial c]ourt allowed to occur, no meaningful discussion of
these alleged claims can be made.” Trial Court Opinion, 6/6/19, at 7 (footnote
omitted).
The record demonstrates that the Commonwealth asked the trial court
to order Appellant to submit to an examination by the Commonwealth’s
mental health expert, pursuant to Rule 569, in response to Appellant’s plans
to raise a diminished capacity defense at trial. Commonwealth’s Motion for
Court Order, 9/12/07, at 1 ¶1 and 2 ¶8. On September 18, 2007, the trial
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court ordered the evaluation without advising Appellant, in person and in the
presence of counsel, of the purpose of the examination, the contents of the
trial court's order, the potential use at trial of the information obtained from
the examination, and the potential consequences of a refusal to cooperate
with the Commonwealth's mental health expert as specified in Pa.R.Crim.P.
569(A)(2)(b).10 Trial Court Order, 9/18/07. Appellant, however, did not
challenge the trial court’s failure to adhere to the requirements of Rule 569,
which, inter alia, insure a defendant was apprised of his constitutional rights
prior to evaluation, in his omnibus pre-trial motion, at the suppression
hearing, during trial, or in his post-trial motion. See Appellant’s Omnibus
Pre-Trial Motions, 1/9/08; see also N.T., 1/21-22/09; N.T., 3/12-13; 16/09;
Appellant’s Motion for New Trial, 3/27/09. Appellant, however, raised the
issue concerning the trial court’s failure to advise him of his rights prior to
compelling his mental health exams by the Commonwealth’s mental health
expert in his Rule 1925(b) statement.
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10 On December 4, 2008, the Commonwealth asked the trial court to order
Appellant to submit to a second examination by the Commonwealth’s mental
health expert in response to Appellant’s assertion that he did not have the
requisite capacity necessary to waive his Miranda rights. Commonwealth’s
Motion for Psychiatric Visit, 12/4/08. The trial court, on December 5, 2008,
ordered the evaluation without advising Appellant, in person and in the
presence of counsel, of the purpose of the examination, the contents of the
trial court's order, the potential use at trial of the information obtained from
the examination, and the potential consequences of a refusal to cooperate
with the Commonwealth's mental health expert as specified in Pa.R.Crim.P.
569(A)(2)(b).
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Based upon our review of the record, we conclude that Appellant’s Rule
1925(b) statement adequately identified the error for the trial court because
the Commonwealth cited Rule 569 as authority to compel the mental health
evaluation in its motion, which the trial court subsequently granted. Citation
to procedural rules, decisional precedents, and statutory authority are not
mandated by our appellate rules in the Rule 1925(b) concise statement. See
Pa.R.A.P. 1925(b)(4)(ii). Appellant, however, waived his claim by failing to
raise the issue before the trial court at the time the alleged error occurred.
Pa.R.A.P. 302(a) (stating, “[i]ssues not raised in the [trial] court are waived
and cannot be raised for the first time on appeal”); see also Commonwealth
v. Strunk, 953 A.2d 577, 579 (Pa. Super. 2008) (stating, “trial judges must
be given an opportunity to correct errors at the time they are made. A party
may not remain silent and afterwards complain of matters which, if erroneous,
the [trial] court would have corrected.”) (citations, original brackets, and
original quotation marks omitted). Consequently, we cannot review the merits
of Appellant’s claim.
Appellant’s second issue raises a claim that the trial court violated his
Sixth Amendment right to representation of counsel when it failed to provide
an interpreter during a portion of his suppression hearing. Appellant’s Brief
at 35-52. Appellant’s claim raises a question of law for which our standard of
review is de novo and our scope of review is plenary. Commonwealth v.
Yohe, 39 A.3d 381, 384 (Pa. Super. 2012), aff’d, 79 A.3d 520 (Pa. 2013),
cert. denied, 572 U.S. 1135 (2014).
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Our Supreme Court recently reiterated that the “Sixth Amendment to
the United States Constitution and Article I, Section 9 of the Pennsylvania
Constitution entitle a criminal defendant to the representation of counsel.”
Commonwealth v. Diaz, 2020 WL 1479846, at *9 (Pa. March 26, 2020) (slip
opinion). “A criminal defendant’s right to counsel guaranteed by the Sixth
Amendment includes his right to consult with his attorney about the substance
of trial during his trial (other than in the midst of his testimony).” Id. at *12.
The failure of courts to provide an interpreter when the defendant is unable
to understand what is being said due to language barriers and, therefore,
cannot communicate with counsel about the proceedings violates the
defendant’s constitutional right to counsel. Id. The interpreter guarantees
the defendant understands the proceedings in his native language and is able
“to confer with counsel in the courtroom about the broad array of unfolding
matters, often requiring immediate responses,” including, inter alia,
“discussions about ‘tactical decisions,’ trial strategy, witness testimony and
lines of inquiry not yet pursued.” Id. at *10-11.
Section 4412 of the Judicial Code states, in pertinent part,
§ 4412. Appointment of interpreter
(a) Appointment of certified interpreter.--Upon request or
sua sponte, if the presiding judicial officer determines that a
principal party in interest or witness has a limited ability to speak
or understand English, then a certified interpreter shall be
appointed, unless the certified interpreter is unavailable as
provided in subsection (b).
(b) Appointment of otherwise qualified interpreter.--
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(1) An otherwise qualified interpreter shall be appointed by
the presiding judicial officer if a good faith effort was made
to obtain a certified interpreter and a certified interpreter
was not reasonably available, as determined by the
presiding judicial officer.
(2) Prior to the appointment of the otherwise qualified
interpreter, the presiding judicial officer, pursuant to
general rule, shall state on the record that a certified
interpreter is not available and that the otherwise qualified
interpreter:
(i) is readily able to interpret; and
(ii) has read, understands and agrees to abide by the
code of professional conduct for court interpreters for
persons with limited English proficiency, as
established by the Court Administrator.
42 Pa.C.S.A. § 4412(a) and (b). It is within the sound discretion of the trial
court to make the determination of whether a defendant needs an interpreter;
it is not within the trial court’s discretion to determine whether a defendant is
entitled to an interpreter. In re Garcia, 984 A.2d 506, 511 (Pa. Super. 2009).
On January 21 and January 22, 2009, the trial court conducted a
suppression hearing in order to address Appellant’s motion to suppress
inculpatory statements Appellant made to the Allegheny County Police
allegedly in violation of his Miranda rights. N.T., 1/21-22/09; see also
Appellant’s Omnibus Pre-Trial Motions, 1/9/09. Appellant asserted, inter alia,
that he did not knowingly, intelligently, and voluntarily waive his Miranda
rights prior to giving his inculpatory statement because he was unable to
understand English when the police read him his rights. Appellant’s Omnibus
Pre-Trial Motions, 1/9/09, at ¶2. Appellant’s counsel arranged to have his
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own interpreter at the suppression hearing for purposes of aiding counsel in
conferring with Appellant if the recording of Appellant’s statements to the
police was played at the suppression hearing after bring introduced into
evidence.11 N.T., 1/21/09, at 3, 21. Appellant’s interpreter was sworn in at
the start of the hearing. Id. at 3. The Commonwealth had its own interpreter
present at the suppression hearing for the purpose of aiding the
Commonwealth. Id. at 5.
As the first witness at the suppression hearing, Allegheny Country Police
Lieutenant William Palmer testified, inter alia, about the circumstances in
which he read Appellant his Miranda rights in English and via a Bosnian
translator before he obtained Appellant’s inculpatory statement that he killed
his wife. Id. at 5-21. After Lieutenant Palmer’s testimony concluded and he
was excused as a witness, the Commonwealth, before calling its next witness,
brought to the trial court’s attention, in the following exchange, that
Appellant’s interpreter was not interpreting the proceedings:
[COMMONWEALTH]: Your Honor, I noticed that the interpreter is
not interpreting anything that [Appellant]--I mean I just--for the
sake of the record, I would like to know if [Appellant] is waiving
that. Since he is here, he would have a right to have everything
translated to him. He has an interpreter. I wouldn't want there
to be any problem with him saying later he didn't understand what
was going on.
____________________________________________
11At the suppression hearing, the Commonwealth introduced into evidence a
compact disc containing a recording of Appellant’s statements to the police.
N.T., 1/21/09, at 13. The recording, however, was not played at the
suppression hearing. Therefore, Appellant’s translator was not needed for the
purpose stated by Appellant’s counsel.
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[APPELLANT’S COUNSEL]: Well, the things that I was going to
discuss with him or have my interpreter go through with him
would be things concerning the exchange, which I believe would
be coming up when we are doing the tape. I can have him
translate every little word.
[COMMONWEALTH]: It is his trial.
[APPELLANT’S COUNSEL]: To do it that way, then there would
have to be a break so my translator can translate it because
obviously he cannot translate simultaneous[ly] as to the way
we're speaking. It's like what I'm doing right now.
THE COURT: Well, []I think [the Commonwealth has] a good
point. Is he waiving his right to have every statement translated?
[APPELLANT’S COUNSEL]: Do we want to put this on record also,
Judge?
THE COURT: Yes.
[APPELLANT’S COUNSEL]: [Appellant,] you have a right to hear
every word that is spoken in this trial.
(Interpreter translates.)
([Appellant] nods head.)
[APPELLANT’S COUNSEL]: You have a right to have every word
spoken in this trial translated for you by the interpreter that we
have provided for you.
(Interpreter translates.)
[APPELLANT’S COUNSEL]: Your understanding of all the words
that are said during this trial are important for you to aid in your
defense.
(Interpreter translates.)
([Appellant] nods head.)
[APPELLANT’S COUNSEL]: Would you like us to interpret every
word that is being said during this trial?
(Interpreter translates)
([Appellant] nods head.)
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[APPELLANT’S COUNSEL]: He would like us to interpret every
word that's being said.
THE COURT: Okay. We'll do that.
[COMMONWEALTH]: What about what's been said so far?
THE COURT: Call your next witness.
Id. at 21-23.12
Before we address the merits of Appellant’s claim that the trial court
violated his Sixth Amendment rights at the suppression hearing by failing to
provide an interpreter during Lieutenant Palmer’s testimony, we must first
determine if Appellant properly preserved this issue for our review. As
discussed supra, Rule 302(a) requires Appellant to raise the issue before the
trial court in order preserve his claim for appeal. Pa.R.A.P. 302(a). “The
reason for this rule has been enumerated as threefold: (1) appellate courts
will not expend time and energy where no trial ruling has been made; (2) the
trial court is more likely to reach a satisfactory result when the issue is
properly presented; and (3) appellate courts may dispose of properly
preserved issues more expeditiously.” Commonwealth v. Myers, 403 A.2d
85, 87 (Pa. 1979). Even if the issue is of a constitutional nature, the party
must raise the issue with the trial court in order to preserve the issue for
____________________________________________
12 We can only assume Appellant’s interpreter continued to interpret the
testimony and hearing dialogue to Appellant for the remainder of the hearing
as there is no indication in the notes of testimony that the interpreter was
translating anything that was said. The trial court, however, did not begin the
hearing anew or have Lieutenant Palmer’s testimony read back and
interpreted for Appellant to assure that he understood the testimony and to
allow him the opportunity to discuss the testimony with his counsel.
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appellate review. Brown v. Philadelphia Tribune Co., 668 A.2d 159, 162
(Pa. Super. 1995), appeal denied, 675 A.2d 1241 (Pa. 1996), cert. denied,
519 U.S. 864 (1996); see also Commonwealth v. Kennedy, 959 A.2d 916,
922 (Pa. 2008) (stating claims regarding the failure to object and issue
preservation best reserved for post-conviction relief), cert. denied, 556 U.S.
1258 (2009).
Here, our review of the notes of testimony from the suppression hearing
reveals the Commonwealth first directed the trial court’s attention to the fact
that the interpreter, utilized by Appellant and his counsel, was not translating
the testimony for Appellant simultaneous to it being offered by Lieutenant
Palmer.13 N.T., 1/21/09, at 21. Despite the Commonwealth having raised
this concern with the trial court, Appellant’s counsel did not join the
Commonwealth’s concern or lodge his own objection on behalf of Appellant.14
Id. Instead, Appellant’s counsel explained that he retained his own
interpreter to aid in counsel’s communication with Appellant concerning the
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13It is apparent from the record that Appellant had a “limited ability to
communicate in English” and, therefore, needed an interpreter “to help him
communicate with counsel” and to understand the testimony and other court
matters. Trial Court Opinion, 8/26/16, at 6.
14Even in cases involving co-defendants, one defendant can waive an issue if
that defendant fails to join in the co-defendant’s objection. Commonwealth
v. Brown, 139 A.3d 208, 211 (Pa. Super. 2016), aff’d, 185 A.3d 316 (Pa.
2018).
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recorded inculpatory statement.15 Id. We find Appellant waived this issue for
failure to object at the time the alleged error occurred, and therefore, we
cannot address the merits of this claim.16
In his final issue, Appellant argues that the trial court erred in permitting
the victim’s attorney to testify about Appellant’s prior acts of abuse of the
victim and in admitting into evidence numerous records from the trial court’s
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15 When the trial court appropriated Appellant’s interpreter, the interpreter’s
role at the hearing, according to Appellant’s counsel, was to interpret a certain
portion of the hearing for Appellant’s and his counsel’s benefit, not to translate
every word of the hearing to Appellant. Also, the trial court did not appoint
this interpreter as a matter of record. N.T., 1/21/09, at 3, 21-23. The
interpreter, however, was qualified as a certified interpreter in accordance
with 42 Pa.C.S.A. § 4412(a). See N.T., 9/1/06, at 3.
16 In his brief, Appellant argues that trial counsel had a “disturbing practice of
picking only select portions of critical proceedings to relay to his non-English
speaking and illiterate client and providing then only ‘summaries’ for the
interpreter to transmit to [Appellant].” Appellant’s Brief at 35. As an example,
Appellant cites to a portion of the preliminary hearing transcript. Id. A review
of the preliminary hearing transcript demonstrates that an interpreter was
provided to Appellant, the interpreter was certified and fluent in Appellant’s
language, and the interpreter was sworn in prior to the start of the hearing.
N.T., 9/1/06, at 3. In as much as Appellant raises a claim that his trial counsel,
at the preliminary hearing or suppression hearing, was ineffective, claims of
ineffective assistance of counsel are reserved for collateral appeal and will not
be addressed on the merits on direct appeal. Commonwealth v. Delgros,
183 A.3d 352, 361-362 (Pa. 2018) (stating that absent limited circumstances,
not present in the case sub judice, claims of ineffectiveness of trial counsel
are to be raised after the direct appeal process has concluded, that is to say,
on collateral review).
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family division, which demonstrated the prior bad acts.17 Appellant’s Brief at
52-66; see also Appellant’s Reply Brief at 22-28.
Appellate courts will only reverse a trial court’s decision regarding the
admissibility of evidence upon a showing that the trial court abused its
discretion. Commonwealth v. Golphin, 161 A.3d 1009, 1022 (Pa. Super.
2017), appeal denied, 170 A.3d 1051 (Pa. 2017). “Abuse of discretion is not
merely an error of judgment, but rather where the judgment is manifestly
unreasonable or where the law is not applied or where the record shows that
the action is a result of partiality, prejudice, bias or ill will.” Golphin, 161
A.3d at 1022 (citation omitted). “Admissibility depends on relevance and
probative value. 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. Green, 162 A.3d 509, 516 (Pa. Super. 2017) (original
quotation marks omitted), quoting Commonwealth v. Drumheller, 808
A.2d 893, 904 (Pa. 2002).
[E]vidence 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).
____________________________________________
17 At the non-jury trial, the Commonwealth introduced the following exhibits:
a protection from abuse (“PFA”) petition filed in 2002, N.T., 3/12/09, at 87, a
final order in the PFA action entered March 19, 2003, id. at 88-89, an amended
indirect criminal contempt complaint, id. at 92, a March 2004 custody order,
id. at 95, a petition for termination of support, id. at 97, a June 29, 2005
affidavit of service of the divorce complaint, id. at 99, and a July 12, 2006
notice of intent to finalize the divorce proceedings, id. at 100. All of these
exhibits were admitted into evidence. Id. at 105.
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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.
Golphin, 161 A.3d at 1021 (citation omitted).18 “Additionally, evidence of
prior crimes and bad acts may be admitted where the acts were part of a chain
or sequence of events that formed the history of the case and were part of its
natural development.” Id., quoting Commonwealth v. Powell, 956 A.2d
406 (Pa. 2008); see also Commonwealth v. Melendez-Rodriguez, 856
A.2d 1278 (Pa. Super. 2004) (stating evidence of the prior assaults admissible
to establish appellant's motive show history and natural development of
facts). This latter exception to Rule 404(b), commonly referred to as the res
gestae exception, permits prior bad acts evidence “where it became part of
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18 Pennsylvania Rule of Evidence 404(b), in pertinent part, states,
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) and (2).
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the history of the case and formed part of the natural development of facts.”
Commonwealth v. Ivy, 146 A.3d 241, 251 (Pa. Super. 2016), citing
Commonwealth v. Solano, 129 A.3d 1156 (Pa. 2015). “In order for
evidence of prior bad acts to be admissible as evidence of motive, the prior
bad acts must give sufficient ground to believe that the crime currently being
considered grew out of or was in any way caused by the prior set of facts and
circumstances.” Commonwealth v. Knox, 142 A.3d 863, 866-867
(Pa. Super. 2016), citing Commonwealth v. Reid, 811 A.2d 530, 550 (Pa.
2002). “Our Supreme Court 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.” Ivy, 146
A.3d at 251, citing Drumheller, 808 A.2d at 905. If the evidence of prior bad
acts is admitted, the defendant is entitled to a jury instruction that the
evidence was admitted only for the limited purpose of proving, inter alia,
motive and intent. Ivy, 146 A.3d at 251 (citation omitted). In non-jury trials,
however, the trial court is presumed to know that prior bad acts evidence is
admitted for limited purposes. Commonwealth v. Akhmedov, 216 A.3d
307, 320 (Pa. Super. 2019) (stating, the trial “court is imbued with the
knowledge of the law that [it] would have given in a formal charge in a jury
case” (citation and original quotation marks omitted)), appeal denied, 224
A.3d 364 (Pa. 2020).
Here, Appellant contends the trial court erred in permitting the victim’s
attorney, who represented the victim during prior family court matters, to
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testify about circumstances contained in the PFA petition, the PFA final order,
the indirect criminal contempt complaint, and the divorce, custody, and
support proceedings. Appellant’s Brief at 53. Appellant argues the victim’s
attorney, inter alia, had no first-hand knowledge of the allegations, the
allegations dated back to 2002, the allegations were uncorroborated by other
witnesses or physical evidence, and the allegations were never subject to
cross-examination. Id. Appellant maintains that the testimony and the
Commonwealth’s exhibits did not qualify for admissibility under Pa.R.E. 404(b)
because the unfair prejudice outweighed any probative value. Id. at 59.
Appellant avers, inter alia, that the attorney’s testimony and the
Commonwealth’s exhibits were inadmissible hearsay evidence and Rule
404(b) does not allow for the admission of otherwise inadmissible evidence.
Id. at 54, 59-60. Appellant argues the trial court erred in determining that
because the allegations contained in the exhibits were verified by or sworn to
by the victim, the exhibits were admissible pursuant to Rule 404(b) even
though, Appellant contends, the exhibits were hearsay and violated
Appellant’s Confrontation Clause19 protections. Id. at 60-61.
In admitting the evidence and permitting the testimony pertaining to
the prior family court matters, the trial court explained,
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19 “The Sixth Amendment to the United States Constitution guarantees that
‘in all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.’ U.S. Const., amend. VI. This
constitutional protection is known as the Confrontation Clause.”
Commonwealth v. Allshouse, 36 A.3d 163, 170 (Pa. 2012).
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[Appellant] told numerous individuals that he was despondent as
a result of the fact that he was going through a divorce proceeding
and he did not have the opportunity to see his children. In
addition, he was upset about the fact that the [PFA] proceeding
prevented him from having access to his wife or children. This
evidence was beneficial in establishing his state of mind and his
specific intent to kill which the Commonwealth established by
circumstantial evidence. As noted, it is very rare that someone
will express their desire to commit a crime[,] while circumstantial
evidence as to other matters may often provide the basis for
determining someone's state of mind. The fact that [Appellant]
was upset with these various [f]amily [d]ivision matters was
important in establishing his specific intent to kill.
Trial Court Opinion, 6/6/19, at 11-12. The trial court viewed the testimony
given by the victim’s attorney and the Commonwealth’s exhibits as
demonstrating Appellant’s intent to harm the victim and possibly kill her. N.T.,
3/13/09, at 235 (referring to two PFAs predicated upon Appellant’s intent to
harm, and possibly kill, the victim). In finding Appellant guilty of first-degree
murder, the trial court stated,
[O]nce you caused the death of your wife you showed no remorse.
None. You treated her like you would have treated an animal.
You didn't even look to see if, in fact, the victim was your wife
because you knew that it was your wife and you knew that it was
the person that you intended to kill. You knew that it was the
person that you had gone out looking for and you knew it by virtue
of the fact that you went up that street and made the left and then
made another left turn onto the road going across the sidewalk
and going into the grassy area, hitting her and driving her into
that house effectively severing her body in half.
Id. at 237.
A review of the record demonstrates that the attorney’s testimony and
the Commonwealth’s exhibits pertaining to the PFA and family law matters
were properly admitted under Rule 404(b), and we find no abuse of discretion
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on the part of the trial court. The trial court, as the ultimate fact-finder in
Appellant’s non-jury trial, considered this evidence for the sole purpose of
establishing the history of the case, and this evidence formed part of the
natural development of facts demonstrating the continual nature of
Appellant’s abuse of the victim and his intent to harm and possibly kill her.
The trial court admitted this evidence solely to explain the course of conduct,
and we find no merit to Appellant’s argument that the rule against hearsay or
the Confrontation Clause bar this evidence from being admitted for the limited
purpose for which the trial court considered it. Commonwealth v. Dargan,
897 A.2d 496, 500 (Pa. Super. 2006) (holding that evidence offered to explain
course of conduct is not excluded by hearsay rule nor barred by Confrontation
Clause), appeal denied, 916 A.2d 1101 (Pa. 2007).
Judgment of sentence affirmed. Appellant’s motion for post-submission
communications pursuant to Rule 2501(b) granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/11/2020
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