Com. v. Gardner, S., Jr.

J-S49036-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEVEN JOHN GARDNER, JR. :
:
Appellant : No. 288 MDA 2018
Appeal from the Judgment of Sentence January 18, 2018
In the Court of Common Pleas of Adams County Criminal Division at
No(s): CP-01-CR-0000595-2017
BEFORE: SHOGAN, J., STABILE, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 20, 2018
Appellant, Steven John Gardner, Jr., appeals from the judgment of
sentence entered by the Court of Common Pleas of Adams County after a jury
convicted Appellant of terroristic threats, recklessly endangering another
person (REAP), and two counts of simple assault. Appellant claims the trial
court abused its discretion in allowing the prosecution to introduce certain
evidence pursuant to Pennsylvania Rule of Evidence 404(b). We affirm.
Appellant was charged with the aforementioned offenses in connection
with his assault of his former fiancée, Stephany Nonemaker (“the Victim”).
The following factual background was developed at Appellant’s jury trial:
On May 9, 2017, at approximately 1:00 p.m., Tracy Zimmer was
delivering mail at 69 Winslow Court, Gettysburg, Adams County,
Pennsylvania and heard a woman screaming at 73 Winslow Court.
Ms. Zimmer saw the front door open and heard a woman
screaming at the top of her lungs and also heard a man’s voice
screaming at her and then the door slammed shut with force. Ms.
____________________________________
* Former Justice specially assigned to the Superior Court.
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Zimmer heard the screaming continue for about ten or fifteen
seconds. Ms. Zimmer subsequently called the police.
[The Victim] testified that she lived at 73 Winslow Court,
Gettysburg, Adams County, Pennsylvania on May 9, 2017 with
[Appellant]. 73 Winslow Court is a three story townhouse and is
in a row with other townhouses, with neighbors on both sides of
73 Winslow Court. The Victim testified that on May 9, 2017 she
worked at Gettysburg Hospital in the emergency department as a
registered nurse and got home from work at approximately 7:00
a.m. At approximately 10:00 a.m. Appellant got into an argument
with the Victim and the Victim retreated to the master bedroom
and locked the door. Appellant picked the lock, entered the
bedroom, pulled the Victim off the bed to the doorway of the
bathroom and started kicking and punching the Victim on her
arms, chest, back and legs with a closed fist and with his bare
feet. Appellant then put both hands around the Victim’s neck and
choked her. The Victim testified she felt pressure on her neck and
it was hard to breath[e]. The Victim attempted to punch Appellant
in the groin. Appellant grabbed her foot and put her foot on her
neck, applied pressure and the Victim testified that … it was
difficult to breath[e]. Appellant continued screaming and yelling
at the Victim, pulled the Victim’s hair and continued to kick and
punch her. This assault occurred on and off for approximately two
hours. During the assault Appellant asked the Victim whether the
Victim wanted to die today, and Appellant also told the Victim she
was going to die today.
Between approximately 12:30 p.m. and 1:00 p.m.[,] the Victim
was on the second floor with Appellant and was able to run down
to the first floor, unlock the front door and open the door.
Appellant grabbed the Victim by the hair and yanked the Victim
back into the house before the Victim could get outside. The
Victim fell on the floor and Appellant kicked the Victim again.
Appellant grabbed the Victim by her hair and forced her upstairs
into the living room. The Victim sat down on a chair in the living
room. Appellant went into the kitchen, returned to the living
room, carrying a handgun and forcefully pressed the loaded
handgun to the left temple of the Victim. Appellant held the gun
with two hands and told the Victim he was going to kill her. The
Victim was crying and begged Appellant not to kill her. Appellant
then held the handgun to his own head and told the Victim he was
going to kill himself. Appellant then took the handgun back into
the kitchen. Appellant returned to the living room, slammed a
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coffee table on the floor and the coffee table broke. Appellant
threw one of the legs of the coffee table at the Victim’s head,
which missed the Victim. Shortly thereafter, Cumberland
Township Police arrived at the residence and Appellant was
subsequently arrested.
Shannon Small, a registered nurse and sexual assault nurse
examiner at Gettysburg Hospital, testified concerning her
treatment and observations of the Victim on May 10, 2017 at the
Gettysburg Hospital. Nurse Small testified concerning visible
injuries on the Victim which she documented through photographs
and diagrams. On the Victim’s back, Nurse Small documented
twenty-two separate injuries. On the front of the Victim, Nurse
Small documented thirteen separate injuries. On the left and right
lateral views of the Victim (the side view), Nurse Small
documented eleven injuries. On the Victim’s head and neck area
Nurse Small documented six injuries. On the Victim’s eyes and
inside her mouth, Nurse Small documented one injury. Nurse
Small testified the visible injuries consisted of bruises, abrasions,
and scratches.
Dr. Gregory J. Codori, an emergency room doctor at Gettysburg
Hospital for twenty-five years, testified concerning his treatment
of the Victim on May 10, 2017. Dr. Codori corroborated the
testimony of Nurse Small and testified the Victim suffered multiple
contusions, abrasions and scratches over her face, neck, chest,
back, and extremities. Dr. Codori testified that the injuries were
consistent with blunt force trauma from a punch or a kick.
Sergeant Matthew S. Trostle of the Cumberland Township Police
Department testified that on May 10, 2017, he went to the Victim’s
residence and recovered a [Beretta] Nano 9 mm handgun which
had a round in the chamber and a full magazine. The Victim
advised Sergeant Trostle that this was the handgun which
Appellant used to threaten the Victim. At trial, the Victim
identified this handgun as the handgun Appellant pressed to her
temple while Appellant threatened to kill the Victim.
Appellant testified that on May 9, 2017 he and the victim were
involved in a verbal dispute. Appellant testified that during the
verbal dispute the Victim grabbed the handgun and Appellant
jumped on top of her to try to get the gun away from the Victim.
Appellant testified he was holding the Victim’s arms and punched
her in the chest to get her to release the handgun. Appellant
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grabbed the Victim, threw her to the ground, got on top of her
and forced her to release the handgun. Appellant testified he then
grabbed the Victim, picked her up, and threw her on the bed.
Appellant testified this incident happened in the master bedroom
on the third floor of the townhouse.
Appellant testified that this was the only physical altercation he
had with the Victim on May 9, 2017. Appellant denied threatening
the Victim with the handgun or pressing the handgun up against
the Victim’s temple. Appellant denied punching or kicking the
Victim other than Appellant attempting to take the handgun from
the Victim.
In rebuttal testimony, the Commonwealth called Allison Krayo as
a witness. Allison Krayo was a prior girlfriend of Appellant and
testified concerning a prior [incident] involving Appellant. Prior to
Ms. Krayo’s testimony, this Court provided the jury with the
following cautionary instruction:
The Court: Before Ms. Krayo testifies, there is an instruction
I want to give you concerning her testimony.
The evidence which the Commonwealth is going to present
for you is what is known as rebuttal, and it’s to rebut
evidence that has been presented in the defense case, and
this evidence is being offered for strictly a limited [purpose].
It is offered for the purpose of tending to show that
[Appellant’s] actions in regards to the firearm that is alleged
in this case to have been held to the alleged victim’s head,
and [Appellant] gave his own rendition of what occurred …
this evidence is being offered to show that [this] was not an
accident … this evidence is offered by the Commonwealth to
show [Appellant’s] intent in this case.
This evidence that we are going to present must not be
considered by you in any way other than for the purpose I
have just stated.
You may not regard this evidence as showing [Appellant] is
a person of bad character or criminal tendencies from which
you might be inclined to infer guilt.
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If you do find [Appellant] guilty in this case following my
instructions and following all the evidence, that must be
based solely on your belief that he committed the crimes in
this case, and not because you believe that he has
committed other offenses in the past or is a bad person.
Ms. Krayo testified that she dated Appellant between June 2009
and February 2010. Ms. Krayo testified that she and Appellant
were in Appellant’s bedroom laying on Appellant’s bed. Ms. Krayo
and Appellant were arguing and Appellant grabbed a handgun,
pointed it at Ms. Krayo’s face[,] approximately twelve to fifteen
inches away from her face and told Ms. Krayo to “shut the fuck
up.” Ms. Krayo did not threaten Appellant before this incident nor
did she touch the handgun. Ms. Krayo testified that this incident
occurred near the end of their relationship.
Trial Court Opinion (“T.C.O.”), 4/4/18, at 2-5.
At the conclusion of the trial, the jury convicted Appellant of the
aforementioned charges. On January 18, 2018, the trial court imposed an
aggregate term of 11½ to 23 months’ imprisonment with a concurrent seven
years’ probation. Appellant filed a timely appeal and complied with the trial
court’s direction to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b).
Appellant limits his appeal to challenge the trial court’s discretion in
permitting the Commonwealth to present evidence pursuant to Pennsylvania
Rule of Evidence 404(b). Specifically, Appellant contends that it was error to
allow the admission of Ms. Krayo’s testimony in light of the timeframe between
the acts and the crimes for which Appellant was on trial and also his assertion
that the evidence was not relevant to motive, intent, or lack of mistake.
In reviewing a challenge to a trial court’s discretion in admitting
evidence, we are guided by the following standard:
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The standard of review employed when faced with a challenge to
the trial court's decision as to whether or not to admit evidence is
well settled. Questions concerning the admissibility of evidence
lie within the sound discretion of the trial court, and a reviewing
court will not reverse the trial court’s decision absent a clear abuse
of discretion. Commonwealth v. Hunzer, 868 A.2d 498 (Pa.
Super. 2005). 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. Id.Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010) (citation
omitted).
Moreover, it is well-established that:
[g]enerally, 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. Commonwealth
v. Powell, 598 Pa. 224, 956 A.2d 406, 419 (2008).
Commonwealth v. Sherwood, 603 Pa. 92, 114, 982 A.2d 483, 497 (2009).
The Pennsylvania Supreme Court has indicated that a party’s challenge
to the remoteness of an evidence admitted under Rule 404(b) “generally
affects the weight—but not the admissibility—of the evidence; further, the
Court has emphasized the deference due to the trial court in the exercise of
its discretion.” Commonwealth v. Reed, 605 Pa. 431, 446-47, 990 A.2d
1158, 1168 (2010). “While remoteness in time is a factor to be considered in
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determining the probative value of other crimes evidence under this theory,
the importance of the time period is inversely proportional to the similarity of
the crimes in question.” Commonwealth v. O'Brien, 836 A.2d 966, 971
(Pa.Super. 2003) (citation omitted). Our courts have determined that
remoteness in time is “another factor to be considered in determining whether
a prior incident ... [of abuse] tends to show that a second incident ... [of
abuse] was an accident.” Commonwealth v. Donahue, 519 Pa. 532, 545,
549 A.2d 121, 127–28 (1988) (plurality) (finding three years was not unduly
remote). See also Commonwealth v. Luktisch, 680 A.2d 877 (Pa.Super.
1996) (finding evidence of sexual molestation by defendant that occurred
between six and fourteen years prior to the crime charged in the present case
was admissible under the common scheme, plan, design or course of conduct
exception to the general rule that evidence of uncharged acts is inadmissible
against defendant).
Moreover, with respect to probative value, this Court held in
Commonwealth v. Green, 76 A.3d 575 (Pa.Super. 2013), appeal denied, 87
A.3d 318 (Pa. 2014), that the trial court did not abuse its discretion in
permitting the admission of evidence that the appellant had pointed a gun at
the victim's head “in mere play” two months before the murder, which was
probative of the appellant’s motive or absence of mistake.
In the instant case, the trial court allowed the prosecution to introduce
Ms. Krayo’s testimony on rebuttal after Appellant had testified that he had
never intentionally threatened the Victim with a handgun, denied pressing the
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gun against the Victim’s forehead and claimed only to have attempted to grab
the handgun to protect himself from the victim.
Although seven to eight years had elapsed between the acts testified to
by Ms. Krayo and the crime for which Appellant was on trial, evidence of the
prior act was necessary to rebut Appellant’s contention that he never had the
intent to threaten the Victim with the firearm and that he was merely
attempting to remove the firearm from the Victim’s grip.
We agree with the trial court that the evidence of Appellant’s prior act
of recklessly pointing a firearm at close range to his paramour’s head in their
bedroom after a verbal dispute was not unduly remote and was probative to
this issue of motive or absence of mistake. Accordingly, we conclude that
Appellant’s claim is meritless.
For the foregoing reason, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/20/2018
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