Com. v. Ford, K.

J-S10038-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KINTE FORD
Appellant No. 515 EDA 2016
Appeal from the Judgment of Sentence dated October 5, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003558-2013
BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.
MEMORANDUM BY SOLANO, J.: FILED JUNE 27, 2017
Appellant Kinte Ford appeals from the judgment of sentence following
a jury trial and convictions for rape by forcible compulsion, aggravated
assault, sexual assault, and terroristic threats.1 Appellant contends that the
trial court erred in admitting testimony related to his prior abuse of the
victim in this case, there was insufficient evidence to sustain the verdict, and
the verdict was against the weight of the evidence. We affirm.
The trial court set forth the evidence presented at Appellant’s jury
trial, for which testimony commenced on October 1, 2014, as follows:
Drelanda Tyler, the complainant, was Appellant’s girlfriend on
January 25, 2013. She often stayed at Appellant’s home . . .
with him and his mother, Gloria Ford.
____________________________________________
1
18 Pa.C.S. § 3121(a)(1), 2702(a)(1), 3124.1, and 2706(a)(1),
respectively.
J-S10038-17
Ms. Tyler testified that Appellant had left the home around
11:00 pm on January 25, 2013. In the early morning hours of
January 26, around 1:00 am, Appellant came back home while
Ms. Tyler was in his room on the third floor, talking with a friend
on her cell phone. Ms. Tyler testified that Appellant was upset,
because “he basically thought I was on the phone with a guy.”
The couple briefly argued, then Appellant hit Ms. Tyler on the
face with a closed fist, breaking her glasses. He told her to sleep
on a couch in the first floor living room instead of upstairs. Ms.
Tyler took her phone and charger downstairs.
After a few minutes, Appellant came downstairs, took Ms.
Tyler’s cell phone from her, and returned upstairs. Ms. Tyler
testified that, about three or four minutes later, Appellant came
back downstairs and stood in front of Ms. Tyler, cursing and
calling her a liar. Appellant then punched her and pinned her on
the couch. She tried to get Appellant off her, telling him to “calm
down, just stop.” Appellant then “thrust” Ms. Tyler around with
his hands on her shoulders. At a certain point in the struggle,
Appellant pulled down Ms. Tyler’s green elastic-waist pants and
ripped off her panties. He pulled down his own pants and put his
penis inside Ms. Tyler’s vagina. Ms. Tyler was trying to kick
Appellant off her body, until she eventually “[got] tired and
restless of trying to fight [him] off,” and “shut down” at a certain
point during the assault.
The commotion woke up Ms. Ford. She came out of her room.
In her statement to Detective Jenkins, Ms. Tyler said that Ms.
Ford “came all the way downstairs and got [Appellant] off [her]
while [they] were having sex.” At trial, however, Ms. Tyler
testified that Appellant had actually pulled his penis out and
“fixed himself” before his mother approached the top of the
stairs. Ms. Ford came downstairs and went into a closet to get
“something metal . . . a bat or a golf club.” Ms. Ford then took
Ms. Tyler upstairs to the third floor in order to keep her away
from Appellant, who was “still pissed off flying through the
house, pacing back and forth, up and down the stairs.” Ms. Tyler
sat down on Ms. Ford’s bed. Appellant came upstairs and began
arguing with his mother as she blocked him from entering
through the doorway. Ms. Tyler stood up behind Ms. Ford.
Appellant threw a left fist at Ms. Tyler’s right eye, followed by a
right fist to her forehead. Ms. Tyler’s forehead was cut, causing
blood to drip down her face and onto her clothes. Ms. Ford told
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Appellant to leave and took Ms. Tyler into the bathroom, where
she gave her a rag for the blood on her face.
Ms. Ford exited the bathroom, leaving Ms. Tyler in there and
closing and locking the door behind her. Shortly thereafter,
Appellant began hitting the door, eventually busting through it.
Appellant balled up his fist and made a threatening jump at Ms.
Tyler before finally leaving the house. Ms. Tyler testified that
Appellant had his hands in his pockets, and she later told
detectives that Appellant was holding a gun. On his way out of
the house, Appellant touched Ms. Tyler's temple and said “I’ll
blow your brains out.”
Once he left, Ms. Ford drove Ms. Tyler to her best friend
Latiya’s house . . . . Around 3:30 am, Ms. Ford dropped Ms.
Tyler off near the McDonald’s . . . , about halfway to Latiya’s
house. Once she got to the house by foot, Ms. Tyler “banged on
the door” but Latiya did not answer. One of Latiya’s neighbors
eventually opened the door and let Ms. Tyler sleep in a spare
room for the night.
Trial Ct. Op., 7/25/16, at 2-4 (citations to the trial transcript omitted,
brackets in original).
Ms. Tyler also testified that she was nervous when Appellant first
became angry and took her telephone, because Appellant had physically
abused her during arguments in the past. N.T., 10/1/14, at 16. That
evidence was allowed pursuant to a pretrial order by the trial court that
granted a motion by the Commonwealth to admit evidence of Appellant’s
prior bad acts.2 Ms. Tyler testified that Appellant would frequently hit her
over the course of their two year relationship (which commenced when she
____________________________________________
2
See Pa.R.E. 404(b)(3) (requiring advance notice by prosecutor of intent to
use evidence of prior bad acts in criminal cases). The trial court’s order was
entered following a hearing held on the motion on August 25, 2014, and
September 12, 2014.
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was nineteen years old, and Appellant was 34 or 35), but that she never
reported Appellant to the police or sought medical treatment. Id. at 22-23,
32-34. Ms. Tyler did not report the instant crime until her friend called the
police the following day. Id. at 38-39.
The trial court’s narrative of the evidence continues:
On January 26, uniformed officers brought Ms. Tyler into
Special Victims’ Unit for an interview. After the interview, Ms.
Tyler went to Philadelphia Sexual Assault Response Center
(PSARC) for an examination. Nurse examiner Karen Doughtery
observed an abrasion, laceration and tenderness on Ms. Tyler’s
head; swelling, a bruise, and tenderness on her eyes; abrasion
and tenderness on her mouth; bruising and swelling with
tenderness to her right eye lower lid; an approximate 1 cm
linear laceration to the forehead above the eyebrow with
tenderness; a 3 cm scratch-like wound to the left face and orbit
(the area that surrounds the eye); and an approximate half
centimeter abrasion to the upper lip and gum.
Acid phosphatase, a component of human seminal fluid, was
inconclusive in all the swabs from Ms. Tyler’s sexual assault kit.
Neither P30 (another component of human seminal fluid) nor
sperm was found on any of the swabs. A brown stain, similar in
appearance to blood, was found on the outside of Ms. Tyler’s
sweat pants. Additionally, microscopic examinations found sperm
on Ms. Tyler’s torn thong-style panties. Lissette Vega of the
Philadelphia Police DNA lab concluded that Appellant, to a
reasonable degree of scientific certainty, is the source of the
sperm. However, there are no tests that can be performed to
conclusively determine whether a rape occurred, due to the
physical nature of genital tissue.
Ms. Ford’s testimony conflicted with Ms. Tyler’s on several
points. She testified that Ms. Tyler came downstairs from the
third floor back bedroom (Appellant’s bedroom) around 2:00 am
and knocked on her door, asking if she could sleep on the couch
downstairs. Her eyes were bloodshot “like she was drinking.”
She told Ms. Ford that she couldn’t sleep and that she was
waiting for Appellant to come home. Ms. Ford testified that Ms.
Tyler said “I’m waiting for [Appellant] to come in. I know he’s
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messing with another girl . . . I’m going to wait to see when he
gets in here because he’s going to get his.” The two women
stayed in Ms. Ford’s room talking for 15 to 20 minutes.
Ms. Ford testified that Appellant came home some time
between 2:15 and 2:30 am. When they heard him come home,
Ms. Tyler got up off the bed, “ranting and raving” and saying
“here comes that mother fucker.” Appellant came upstairs and
asked what was the matter. Ms. Ford testified that she was
standing in the doorway between Ms. Tyler (in the room) and
Appellant (in the hallway). Ms. Ford asked Appellant to leave
because it was 2:30 am and she didn’t want any arguments
starting in her house. Before he walked away, Ms. Tyler reached
over Ms. Ford “to try and hit him and scratch him.” Ms. Ford
testified that she backed up and stumbled and fell on Ms. Tyler,
accidentally causing Ms. Tyler to hit her head on a dresser by the
bedroom door. Ms. Ford took Ms. Tyler to the bathroom and got
her a cold rag for her face. Ms. Ford testified that she never
grabbed a golf club from the closet. She also testified that she
never saw her son downstairs or having intercourse with Ms.
Tyler that evening.[3]
Trial Ct. Op., 7/25/16, at 4-6 (citations to the trial transcript omitted,
brackets in original).
On October 3, 2014, the jury convicted Appellant of the
aforementioned crimes. The jury returned a verdict of not guilty of rape by
threat of forcible compulsion and unlawful restraint.4 On October 5, 2015,
Appellant was sentenced to an aggregate term of seventeen and one-half to
____________________________________________
3
Ms. Ford also testified that Ms. Tyler never previously told her that
Appellant ever threatened her, and that this was the first time Ms. Ford
witnessed them arguing. N.T., 10/2/14, at 94, 107-08.
4
18 Pa.C.S. §§ 3121(a)(2) and 2902(a)(1).
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thirty-five years’ incarceration. Trial Ct. Op. at 1.5 Appellant filed a post-
sentence motion for a new trial on October 13, 2015, which was denied by
operation of law on February 11, 2016.6 Appellant thereafter filed a timely
appeal to this Court in which he raises the following issues for our review:
I. Whether the trial court abused its discretion and committed
reversible error when it permitted the Commonwealth to proffer
evidence of Appellant’s purported bad prior acts.
II. Whether the evidence was insufficient as a matter of law
such that no reasonable fact finder could have found Appellant
guilty of all the charges.
III. Whether the findings of guilty are against the weight of the
evidence.
Appellant’s Brief at 8.
Prior Bad Acts
Appellant claims that the trial court abused its discretion in admitting
testimony that Appellant had previously abused the victim, his girlfriend at
the time. Appellant’s Brief at 12-16. “The admission of evidence is
committed to the sound discretion of the trial court and an appellate court
may reverse only upon a showing that the trial court clearly abused its
discretion.” Commonwealth v. McFadden, 156 A.3d 299, 309 (Pa. Super.
2017). “An abuse of discretion may not be found merely because an
____________________________________________
5
Appellant’s sentencing hearing was bifurcated; the first portion took place
on August 5, 2015.
6
The post-sentence motion contended that the verdict was against the
weight of the evidence and that the sentence imposed was excessive.
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appellate court might have reached a different conclusion, but requires a
result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will,
or such lack of support so as to be clearly erroneous.” Commonwealth v.
Hairston, 84 A.3d 657, 664-65 (Pa.), cert. denied, 135 S. Ct. 164 (2014).
Appellant contends that the admission of evidence of his prior abuse of
Ms. Tyler was error for four reasons:
• First, it was not admissible to establish the victim’s state of
mind, because her state of mind was not contested during trial. Appellant’s
Brief at 12, 14. Appellant does not contend that Ms. Tyler consented to have
intercourse on the evening in question, but rather asserts that he and Ms.
Tyler did not have intercourse that evening. Therefore, according to
Appellant, testimony of prior abuse (indicating that the victim did not
consent to intercourse that evening) was irrelevant. Id. at 14 (citing
Commonwealth v. Richter, 711 A.2d 464, 466 (Pa. 1998)).
• Second, the evidence was not admissible because the prior bad
acts were remote in time and did not bear a close enough resemblance to
the instant crime. Appellant’s Brief at 12-14 (citing Commonwealth v.
Green, 76 A.3d 575, 583-84 (Pa. Super. 2013), appeal denied, 87 A.3d
318 (Pa. 2014)). Appellant therefore suggests the acts bore no logical
connection to the assault with which he was charged. Id. at 15 (citing
Commonwealth v. Ross, 57 A.3d 85 (Pa. Super. 2012) (en banc), appeal
denied, 72 A.3d 603 (Pa. 2013)).
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• Third, the evidence lacks indicia of reliability because there was
no evidence corroborating that the acts actually occurred. Appellant’s Brief
at 15-16 (citing Commonwealth v. Aikens, 990 A.2d 1181, 1185 (Pa.
Super.), appeal denied, 4 A.3d 157 (Pa. 2010); Commonwealth v.
Camperson, 612 A.2d 482, 483 (Pa. Super. 1992), appeal denied, 622
A.2d 1374 (Pa. 1993)). According to Appellant, Ms. Tyler did not offer details
regarding any specific incident or a time-frame for the alleged abuse. Id. at
13-14. She did not report any of the alleged abuse to law enforcement,
sought no medical treatment, and did not produce any eyewitnesses. Id. at
16. Appellant observes that his own witness, Ms. Ford, rebutted the victim’s
testimony regarding the abuse. Id. And, according to Appellant, the fact that
the victim was waiting for him at his mother’s house on the night of the
incident indicates that the alleged prior abuse was fabricated. Id. at 14.
• Overall, Appellant complains that Ms. Tyler’s testimony about the
prior bad acts was overly prejudicial as it “beckon[ed] the jury to conclude
that because Appellant may have engaged in assaultive behavior on prior
occasions, he likely did so at the time in question, which is the use explicitly
precluded by Pennsylvania Rule of Evidence 404(b).” Appellant’s Brief at 12.
Rule 404(b) of the Rules of Evidence provides, in relevant part:
(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.
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(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.
The Supreme Court has summarized:
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. [Id.;
accord, Pa.R.E. 403.7]
Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009), cert.
denied, 559 U.S. 1111 (2010).
To be admissible under the motive exception in Rule 404(b)(2), “there
must be a specific logical connection between the other act and the crime at
issue which establishes that the crime currently being considered grew out
of or was in any way caused by the prior set of facts and circumstances.”
Ross, 57 A.3d at 100 (quotation marks and citation omitted). For example,
in Ross, evidence of abuse of the defendant’s former sexual partners was
____________________________________________
7
Rule 403 provides: “The court may exclude relevant evidence if its
probative value is outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.”
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deemed inadmissible to show motive where the killing of the victim could not
have been said to have resulted from his prior abuse of other women. Id. at
100-01. In contrast, evidence of previous confrontations evidencing hostility
between a particular defendant and victim are typically admissible to prove
the defendant’s motive to commit a new criminal act against the same
victim. See, e.g., Commonwealth v. LaCava, 666 A.2d 221, 229 (Pa.
1995) (evidence of prior drug activities admissible to show motive by way of
showing the history of the defendant’s hostile relationship with the police
officer he killed); Commonwealth v. Martin, 387 A.2d 835, 838 (Pa. 1978)
(evidence of prior assault and robbery admissible to prove motive for
defendant’s later killing of a man who struck him with a chair during the
assault and robbery).8
The list of exceptions in Rule 404(b)(2) (“motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of
accident”) is not exhaustive. Commonwealth v. Brown, 52 A.3d 320, 325
(Pa. Super. 2012), appeal denied, 62 A.3d 377 (Pa. 2013).9 Another
____________________________________________
8
We may cite cases predating the enactment of the Pennsylvania Rules of
Evidence to the extent they are in accord with the Rules. Commonwealth
v. Aikens, 990 A.2d 1181, 1185 n.2 (Pa. Super.), appeal denied, 4 A.3d
157 (Pa. 2010).
9
Recently, in Commonwealth v. Hicks, 156 A.3d 1114 (Pa. 2017), a
plurality of the Supreme Court observed that “evidence of prior bad acts,
while generally not admissible to prove bad character or criminal propensity,
is admissible when proffered for some other relevant purpose so long as the
probative value outweighs the prejudicial effect.” 156 A.3d at 1125, quoting
(Footnote Continued Next Page)
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exception is the common law “same transaction” or “res gestae” exception.
Id. at 326. This exception is applicable in “situations where the distinct
crimes were part of a chain or sequence of events which formed the history
of the case and were part of its natural development.” Id. Or, put another
way, the exception applies to prior 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.” Id. at 330–31 (emphasis omitted); see also
Commonwealth v. Dillon, 925 A.2d 131, 139 (Pa. 2007) (evidence
admissible under the res gestae exception so that the events of the crime
and resulting prosecution did not appear to the jury to be in a vacuum).
Evidence of prior domestic abuse between a victim and defendant has
been held to be admissible under several exceptions, including both res
gestae and motive. For example, in Sherwood, 982 A.2d at 497, the
victim’s mother testified that on several instances prior to the fatal attack on
the victim, her daughter had related that she had been struck by the
defendant. This evidence was admissible under the res gestae exception as
“relevant to help establish the chain of events and pattern of abuse that
_______________________
(Footnote Continued)
Commonwealth v. Boczkowski, 846 A.2d 75, 88 (Pa. 2004). The Court in
Bockowski added, “This Court has recognized many relevant purposes,
other than criminal propensity, for which evidence of other crimes may be
introduced”). 846 A.2d at 88 (citations omitted).
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eventually led to the fatal beating,” and also “to show intent, lack of mistake
or accident, ill-will, malice, and the nature of [the defendant’s] relationship
with [the victim].” Id.
Similarly, in Commonwealth v. Drumheller, 808 A.2d 893 (Pa.
2002), cert. denied, 539 U.S. 919 (2003), evidence of the defendant’s prior
abuse of the victim was admissible to show “the chain or sequence of events
that formed the history of the case, is part of the natural development of the
case, and demonstrates [the defendant’s] motive, malice, intent, and ill-will
toward [the victim].” Drumheller, 808 A.2d at 905; see also
Commonwealth v. Powell, 956 A.2d 406, 419-20 (Pa. 2008) (evidence of
prior abuse of victim by defendant admissible under the res gestae exception
to help establish “the chain of events and pattern of abuse,” and also to
show the defendant’s “intent and malice and the nature of his relationship
with [the victim]”), cert. denied, 556 U.S. 1131 (2009).10
____________________________________________
10
See also Commonwealth v. Johnson, 42 A.3d 1017, 1027 (Pa. 2012)
(evidence that mother’s boyfriend disciplined two-year-old child by beating
her was admissible to show “ill will, motive, malice, or the nature of the
relationship between the defendant and the decedent”); Commonwealth v.
Jackson, 900 A.2d 936, 941 (Pa. Super. 2006) (“The evidence suggests
that the abuse by Appellant of the victim continued to escalate until
Appellant ultimately murdered the victim. The challenged evidence shows
the chain or sequence of events which formed the history of the case, is part
of the natural development of the case, and demonstrates Appellant's
motive, malice, intent, and ill-will toward the victim”). Evidence of previous
domestic abuse is particularly relevant in homicide cases. See
Commonwealth v. Chandler, 721 A.2d 1040, 1044 (Pa. 1998) (“Evidence
concerning the previous relations between a defendant and a homicide
victim is relevant and admissible for the purpose of proving ill will, motive or
(Footnote Continued Next Page)
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Evidence of a defendant’s prior assault of a victim is particularly
relevant when necessary to prove that a rape victim did not consent to have
sex. See Commonwealth v. Barger, 743 A.2d 477, 481 (Pa. Super. 1999)
(en banc) (“evidence of [defendant’s] prior abusive and intimidating
behavior directed at victim and victim's mother were properly admitted to
prove [victim’s] lack of consent to [defendant’s] sexual contact with her”).11
Evidence of prior bad acts is likewise admissible in a rape case to prove force
or threat of harm when the defendant is facing such charges. See Richter,
711 A.2d at 466-67 (past history of physically abusive conduct towards the
victim was admissible to prove the element of forcible compulsion or threat
of forcible compulsion); see generally Commonwealth v. Berkowitz, 641
A.2d 1161, 1164-65 (Pa. 1994) (stating that when the defendant is charged
with rape by forcible compulsion, the Commonwealth must prove more than
a lack of consent).
In order to be deemed sufficiently probative, the alleged prior bad acts
must not be too far removed in time and place from the crime at issue.
_______________________
(Footnote Continued)
malice. . . . This includes, in particular, evidence that the accused physically
abused his or her spouse” (brackets omitted)). However, Appellant has not
cited any authority or otherwise suggested that admission of prior-abuse
evidence is limited only to homicide cases. Indeed, Appellant relies on
Green, supra, 76 A.3d at 583-84, a homicide case, and argues its
applicability in this non-homicide setting. See Appellant’s Brief at 13.
11
In Barger, the evidence of past abuse was also deemed relevant to
explain why the victim delayed in reporting the crime to her guidance
counselor. 743 A.2d at 480-81.
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Commonwealth v. Reed, 990 A.2d 1158, 1168 (Pa. 2010). In examining
the probative value of the acts,
courts must consider factors such as the strength of the “other
crimes” evidence, . . . the time lapse between crimes, the need
for the other crimes evidence, [and] the efficacy of alternative
proof of the charged crime[.]
Brown, 52 A.3d at 326–27 (quoting McCormick, Evidence § 190 at 811 (4th
ed.1992).12 However, no bright line for remoteness exists. See Reed, 990
A.2d at 1168 (approving the admissibility evidence of prior abuse occurring
over two-and-one-half months, and citing Commonwealth v. Ulatoski,
371 A.2d 186, 191-92 (Pa. 1977) (evidence of prior abuse occurring
seventeen months prior to homicide was admissible) and Drumheller, 808
A.2d at 905-06 (evidence of abuse thirty-four months prior to murder was
admissible)), cert. denied, 562 U.S. 1020 (2010); Commonwealth v.
Odum, 584 A.2d 953, 955 (Pa. Super. 1990) (citing Commonwealth v.
Patskin, 93 A.2d 704, 712 (Pa. 1953), cert. denied, 347 U.S. 931 (1954),
for the proposition that evidence of domestic abuse seventeen years prior to
wife’s murder is not too remote). Arguments related to the remoteness of
the acts generally go to the weight, and not the admissibility, of the prior
____________________________________________
12
But see Green, 76 A.3d at 583-85 (explaining that the common law res
gestae exception requires that the acts be closely temporally related, but
that the motive exception does not; holding therefore that evidence that a
defendant had previously threatened his girlfriend (who he later shot in the
head), by pointing a gun at her head two months prior to the killing was not
admissible under the res gestae exception but was admissible to show
motive “because it tended to demonstrate Appellant’s jealous and overly-
possessive attitude with respect to the victim”).
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bad acts evidence. Ulatoski, 371 A.2d at 191; accord Reed, 990 A.2d at
1168.13
The Commonwealth need not prove beyond a reasonable doubt that
the prior bad acts actually occurred. Commonwealth v. Ardinger, 839
A.2d 1143, 1145-46 (Pa. Super. 2003). And whether the acts resulted in
criminal charges is not typically germane to their admissibility. Chandler,
721 A.2d at 1044 n.7. Rather, “substantial evidence” of the prior bad acts,
such as eyewitness testimony, must exist in order for that evidence to be
admissible. See Odum, 584 A.2d at 956. Once deemed admissible, the
general reliability of the evidence establishing the bad acts is a question for
the fact finder. It is for this reason that the failure of a victim to make a
timely report of prior abuse bears upon the weight of the evidence
establishing that the prior abuse occurred, and not the admissibility of that
evidence. Commonwealth v. Lane, 555 A.2d 1246, 1250-51 (Pa. 1989).
Finally, in evaluating the prejudicial nature of the evidence, a court
should be guided by the following:
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13
There is an additional requirement for a close similarity between the prior
bad acts and instant crime when the act is admitted to prove a common
scheme or plan, the identity of the perpetrator via a modus operandi, or the
absence of mistake or accident. See Commonwealth v. Kinard, 95 A.3d
279, 295 (Pa. Super. 2014); Ross, 57 A.3d at 102-04; see also Hicks, 156
A.3d at 1129 (evidence of other crimes must be sufficiently similar to instant
crime when admitted to prove lack of accident or identity). Because the prior
bad acts in the instant case were admitted under the motive and res gestae
exceptions, the resemblance between the prior bad acts and instant crime is
not in issue here.
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[E]vidence will not be prohibited merely because it is harmful to
the defendant. Exclusion is limited to evidence so prejudicial that
it would inflame the jury to make a decision based upon
something other than the legal propositions relevant to the case.
...
This court has stated that it is not “required to
sanitize the trial to eliminate all unpleasant facts
from the jury's consideration where those facts are
relevant to the issues at hand and form part of the
history and natural development of the events and
offenses for which the defendant is charged.”
[Commonwealth v.] Lark, 543 A.2d [491,] 501
[(Pa. 1988)]. Moreover, we have upheld the
admission of other crimes evidence, when relevant,
even where the details of the other crime were
extremely grotesque and highly prejudicial. See
Commonwealth v. Billa, 521 Pa. 168, 555 A.2d
835, 841 (1989) (upholding the trial court's
admission of evidence that the defendant had
committed a prior rape, including testimony from the
prior rape victim); see also Commonwealth v.
Gordon, 543 Pa. 513, 673 A.2d 866, 870 (1996)
(allowing evidence of defendant's previous sexual
assaults). . . .
In deciding whether the danger of unfair prejudice
and the like substantially outweighs the incremental
probative value, a variety of matters must be
considered, including . . . the degree to which the
evidence probably will rouse the jury to
overmastering hostility.
Commonwealth v. Page, 965 A.2d 1212, 1220-21 (Pa. Super. 2009)
(quotation marks, brackets, and some citations omitted), appeal denied,
74 A.3d 125 (Pa. 2013).
Applying the foregoing precepts to the instant facts, the trial court
found Ms. Tyler’s testimony about past abuse to be admissible to establish
the nature of the relationship between her and Appellant, Ms. Tyler’s state of
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mind, and “the presence of ill will, malice, or motive.” Trial Ct. Op. at 7. The
trial court explained that —
. . . Ms. Tyler’s statements regarding Appellant’s prior abusive
behavior towards her during the course of their relationship was
deemed relevant to establish Ms. Tyler’s state of mind and the
res gestae of the relationship. This court determined that the
probative value of this testimony outweighed any prejudicial
effect. Moreover, defense counsel was given the opportunity to
cross-examine Ms. Tyler regarding the alleged abuse. For these
reasons, it was not an abuse of discretion to allow Ms. Tyler to
testify to previous acts of violence committed by Appellant
during the course of the relationship.
Id. at 7-8.
We agree with the trial court that it did not abuse its discretion. The
victim’s testimony was necessary to establish Appellant’s motive and the
dynamic of the relationship between them, so that the events of the case
would not appear in isolation. Sherwood, 982 A.2d at 497; Powell, 956
A.2d at 419-20; Drumheller, 808 A.2d at 905. Because Appellant was
charged with rape by threat of forcible compulsion, his prior assaultive
conduct was relevant to establish not only that the victim did not consent,
but that she was intimidated by the acts which had previously transpired.
Richter, 711 A.2d at 466-67.14
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14
We acknowledge that at trial, Appellant never argued that the victim
consented; rather, he argued that the crimes — particularly, the alleged
rape — never occurred. But the Commonwealth, supported by the testimony
of Ms. Tyler, contended otherwise, and it was not error to permit the
Commonwealth to introduce evidence of Appellant’s prior bad acts in support
of the Commonwealth’s contention.
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Nor are we persuaded that the prior acts described by Ms. Tyler were
too remote or unconnected to the present case to be of any probative value.
Ms. Tyler testified that Appellant would often hit her during arguments,
which is similar to what allegedly happened during the assault at issue here.
She testified that the prior abuse took place regularly over the course of the
two-year relationship between her and Appellant, which culminated in the
instant offense; that was not an overly attentuated time-period. See, e.g.,
Drumheller, 808 A.2d at 905-06 (evidence of abuse dating thirty-four
months prior to alleged crime was not overly remote).
Appellant’s assertion that the testimony was inadmissible as unreliable
is likewise meritless. The Commonwealth presented the victim’s first-hand
account of the abuse by putting her on the witness stand. Her testimony
provided substantial evidence to be considered by the fact-finder. Odum,
584 A.2d at 956. The fact that Ms. Tyler had never previously reported the
abuse or filed criminal charges against Appellant is irrelevant to the
admissibility of her testimony. Chandler, 721 A.2d at 1044 n.7; Lane, 555
A.2d at 1250-51. Appellant was able to cross-examine Ms. Tyler on the
veracity of her testimony and to challenge Ms. Tyler’s story before the jury.
It was for the jury to believe or disbelieve Ms. Tyler’s testimony and to
accord it whatever weight it found appropriate in light of any other evidence
that did or did not corroborate it. Lane, 555 A.2d at 1250-51.
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Finally, we reject Appellant’s argument that the probative value of the
testimony, which placed the facts of the current crime in context, was
outweighed by the prejudicial nature of that evidence under Pa.R.E.
404(b)(2) and 404(3). Ms. Tyler’s testimony that Appellant has previously
struck her during the course of an argument does not involve the sort of
grotesque details likely to “rouse the jury to overmastering hostility.” Page,
965 A.2d at 1220-21. And her testimony describing that previous, less
egregious abuse by Appellant would not be any more likely to inflame the
jury into making an improper decision than her testimony about the current,
more serious incident would. The jury was free to disbelieve any or all of Ms.
Tyler’s testimony.
Furthermore, any prejudice from evidence of this type can usually be
ameliorated by an appropriate jury instruction. See Sherwood 982 A.2d at
497-98 (probative nature of prior bad acts evidence was not outweighed by
its prejudicial effect where the trial court gave the jury a cautionary
instruction to prevent considering the evidence as proof of defendant’s bad
character or criminal tendencies); Drumheller, 808 A.2d at 906 (court did
not abuse discretion in admitting prior bad acts evidence when it instructed
the jury that the evidence “could only be used to demonstrate the chain or
sequence of events that formed the history of the case and [the defendant’s]
motive, malice, intent, and ill-will”); Richter, 711 A.2d at 467 (stating that
when evidence of prior bad acts has the potential to cause unfair prejudice,
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the evidence should “be accompanied by a cautionary instruction which fully
and carefully explains to the jury the limited purpose for which that evidence
has been admitted”). We presume that a jury will follow a trial court’s
instructions and that any potential prejudice will thereby be removed.
Drumheller, 808 A.2d at 906.
Appellant was invited to request such an instruction here, but explicitly
declined to do so. Prior to charging the jury, the following exchange took
place between Appellant’s counsel and the trial court:
The court: In terms of jury instructions, you saw the instructions
the Commonwealth gave me, do you have any objection to
those?
[Appellant’s counsel]: I don’t. I am not requesting a prior bad
acts instruction. I don’t know if the Commonwealth is, I’m not at
this point.
[The Commonwealth]: That’s fine, if the defense doesn’t want
that instruction.
The court: That’s fine.
N.T., 10/2/14, at 119-20. After the trial court charged the jury, the court
again asked counsel:
The court: If I can put something on the record for a minute. It’s
my understanding, [Appellant’s counsel], that you did not want
me to say anything regarding the other crimes evidence in terms
of instruction in this case; is that correct?
[Appellant’s counsel]: That’s correct.
The court: and you discussed that with the defendant; is that
correct?
[Appellant’s counsel]: That’s correct, yes.
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The court: And he’s in agreement with that?
[Appellant’s counsel]: Yes.
The court: And [(to Appellant)] you fully discussed that with
[Appellant’s counsel?] I’m referring to the instruction to evidence
of other criminal conduct that came out from the testimony of
the complainant, Drelanda Tyler. Everybody understand that?
[Appellant]: Yes, Your Honor.
The court: Any questions about that instruction at this point?
[Appellant]: No, sir.
Id. at 128-29. Having elected to forego a corrective jury instruction,
Appellant may not now complain of resulting prejudice.
For all of these reasons, we hold that the trial court did not abuse its
discretion in denying Appellant’s motion to exclude the evidence of prior
abuse.
Sufficiency of the Evidence
We review Appellant’s second issue in accordance with the following
standard of review:
A claim challenging the sufficiency of the evidence presents a
question of law. We must determine whether the evidence is
sufficient to prove every element of the crime beyond a
reasonable doubt. We must view evidence in the light most
favorable to the Commonwealth as the verdict winner, and
accept as true all evidence and all reasonable inferences
therefrom upon which, if believed, the fact finder properly could
have based its verdict.
Commonwealth v. McFadden, 156 A.3d 299, 303 (Pa. Super. 2017). In
addition, when an appellant challenges the credibility of the trial evidence or
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contradictions presented by the trial evidence, that challenge goes to the
weight, not the sufficiency, of the evidence. See Commonwealth v.
Dougherty, 860 A.2d 31, 36 (Pa. 2004) (argument regarding credibility of
witness testimony went to the weight, and not sufficiency of the evidence),
cert. denied, 546 U.S. 835 (2005); Commonwealth v. Small, 741 A.2d
666, 673 (Pa. 1999) (argument related to conflicting witness testimony went
to the weight, and not sufficiency of the evidence), cert. denied, 531 U.S.
829 (2000).
Appellant argues that the evidence is insufficient because the victim’s
testimony is “simply not credible.” Appellant’s Brief at 18. In support,
Appellant points to inconsistencies between Ms. Tyler’s testimony at trial and
the statement she gave to the police and the lack of physical evidence to
corroborate her testimony. Id. at 18-19. Specifically, Appellant complains
that no physical evidence was recovered from the house, from the sexual
assault examination, or Ms. Tyler’s clothing, and he points out that there
was no testimony regarding how the spermatozoa came to be on Ms. Tyler’s
underwear. Appellant’s Brief at 19. Additionally, Appellant emphasizes that
the testimony by his mother, Ms. Ford, was contrary to much of Ms. Tyler’s
testimony. Id. at 19-20.
These arguments by Appellant address the weight, not the sufficiency,
of the trial evidence. Dougherty, 860 A.2d at 36; Small, 741 A.2d at 673.
By failing to formulate an argument founded upon legal authority and
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demonstrating in what manner the evidence presented at trial failed to
establish the specific elements of the crimes of which Appellant was
convicted, Appellant has failed to provide any basis upon which he can
prevail on his sufficiency claim, and we conclude that no relief is due. In
addition, Appellant’s failure to set forth a proper sufficiency claim has waived
this issue. See Pa.R.A.P. 2119(a); Commonwealth v. Duda, 923 A.2d
1138, 1149 n.11 (Pa. 2007) (arguments not sufficiently developed on appeal
are waived); Commonwealth v. Blango, 150 A.3d 45, 48 (Pa. Super.
2016), appeal denied, 2017 WL 1374163 (Pa. Apr. 12, 2017).
Weight of the Evidence
Finally, Appellant argues that the verdict was against the weight of the
evidence. Our standard of review of a challenge to the weight of the
evidence is as follows:
Where the trial court has ruled on a weight claim, an
appellate court’s role is not to consider the underlying question
of whether the verdict is against the weight of the evidence.
Rather, our review is limited to whether the trial court palpably
abused its discretion in ruling on the weight claim.
Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa. Super. 2014)
(brackets, quotation marks, and internal citations omitted), appeal denied,
134 A.3d 56 (Pa.), cert. denied, 132 S. Ct. 106 (2016).
Appellant argues that the verdict was against the weight of the
evidence because the victim’s testimony was incredible and inconsistent with
the lack of physical evidence supporting it. Appellant’s Brief at 20-21.
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Appellant likens this case to In re J.B., 69 A.3d 268 (Pa. Super. 2013),
vacated, 106 A.3d 76 (Pa. 2014), in which we held that a juvenile
defendant’s conviction for killing his mother could not stand because there
was insufficient circumstantial evidence in the case to support the
conviction. Id. at 21.15 Appellant claims that here, as in J.B., “several
conclusions that were important to the verdict find little to no support in the
record.” Id. In particular, he argues that (1) Ms. Tyler’s testimony differed
from what she reported to the police after the incident and her grand-jury
testimony; (2) no physical evidence of sexual assault was recovered from
the residence or following the physical examination of the victim; and (3)
the testimony of Ms. Tyler contradicted that of Appellant’s mother. Id. at
21-22.
It is axiomatic that, “In instances where there is conflicting testimony,
it is for the jury to determine the weight to be given the testimony. The
credibility of a witness is a question for the fact-finder.” Commonwealth v.
Puksar, 740 A.2d 219, 224 (Pa. 1999), cert. denied, 531 U.S. 829 (2000).
We have therefore explained:
It is well established that this Court is precluded from reweighing
the evidence and substituting our credibility determination for
that of the fact-finder. . . .
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15
Our decision was vacated by the Supreme Court because of issues
regarding the defendant’s preservation of the weight claim. The Supreme
Court did not address our analysis of the merits of the weight issue, but
remanded to allow the defendant to file a post-dispositional motion nunc pro
tunc. See J.B., 106 A.3d at 99 n.21.
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A new trial should be awarded when the jury’s verdict is so
contrary to the evidence as to shock one’s sense of justice and
the award of a new trial is imperative so that right may be given
another opportunity to prevail. In this regard, the evidence must
be so tenuous, vague and uncertain that the verdict shocks the
conscience of the [trial] court.
Thompson, 106 A.3d at 758–59 (citation and internal brackets omitted).
In ruling on Appellant’s weight claim, the trial court stated:
In the instant case, the jury was presented with two conflicting
versions of events, and chose to credit the testimony of Ms.
Tyler over that of Appellant’s mother. The fact that the jury
found one witness more credible than another is not shocking to
the conscience, and therefore no grounds for relief exist.
Trial Ct. Op. at 9. The court also pointed out that there was corroborating
physical evidence in the form of the victim’s ripped underwear, which had
Appellant’s seminal fluid on it, and repeated: “The fact that the jury found
Appellant guilty after considering this evidence does not shock one’s sense
of justice.” Id.
We find no abuse of discretion. The trial court correctly noted that the
bulk of the evidence came down to one witness’ testimony against that of
another. The trial court aptly considered whether the evidence supporting
the verdict was so tenuous, vague, and uncertain that the verdict shocked
its conscience and found that it was not. Moreover, any lack of physical
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evidence was merely inconclusive,16 and the sole witness who testified on
behalf of Appellant may have easily been deemed incredible by the jury due
to her status as Appellant’s mother.
Our decision in In re J.B. is not to the contrary. The juvenile court in
that case concluded that J.B. had committed the alleged murder because it
found that, other than his two young step-sisters, J.B. was the only person
who had been in the house where the murder occurred on the morning it
occurred. 69 A.3d at 278. The court based that finding on evidence that,
except for footprints of J.B. and his step-sister leaving the house, there were
no footprints seen in the snow around the house and there was no testimony
that anyone had seen another person enter the building. Id. at 278-79.
However, upon a closer review of the record, we discovered that the single
witness who testified as to the presence of the children’s footprints in the
driveway was never asked whether there were other footprints leading up to
any of the four entrances to the house, and no witnesses were asked
whether anyone else had been seen on the property that morning. Id. at
279-81. We therefore held that the trial court had palpably abused its
discretion in adjudicating J.B. delinquent based on findings of fact that were
not supported by the record. Id. at 281-82. That is a far cry from the instant
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16
For example, by the time Appellant’s residence was searched, any signs of
a struggle or the golf club or gun that Ms. Tyler claimed to have seen may
have been removed by the occupants.
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case, in which the eyewitness testimony of the victim established the facts of
the crime and the jurors had ample evidence on which to base their factual
findings leading to a verdict of guilty.
We hold the trial court did not abuse its discretion in denying
Appellant’s weight claim.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/27/2017
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