Com. v. Gibson, K.

J-A16022-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
KASIM GIBSON
Appellee No. 2788 EDA 2014
Appeal from the Order Entered August 26, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006605-2013
BEFORE: LAZARUS, OLSON and PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 30, 2015
Appellant, the Commonwealth of Pennsylvania (the Commonwealth),
appeals by permission from the interlocutory order, entered on August 26,
2014, denying its motion in limine seeking to admit other acts evidence
pursuant to Pa.R.E. 404(b). Upon review, we affirm.
The facts of this case, as alleged in the Commonwealth’s motion in
limine, are as follows:
On April 30, 2013, at approximately 12:45 p.m. in the area
of 800 N. 17th Street the defendant[, Kasim Gibson
(Gibson),] engaged in a brief conversation with
45[-]year[-]old Lanice Manuel, he then reached into the
front of his sweatpants, retrieved a small object, [and]
handed it to Ms. Manuel. In return, Ms. Manuel handed
[Gibson] United States [c]urrency. Officers stopped Ms.
Manuel in the area of 1800 Wyle Street and recovered one
red tinted packet of crack cocaine. Officers then returned to
the area of 800 N. 17th Street and observed [Gibson] sitting
*Retired Senior Judge assigned to the Superior Court.
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on the steps of 1635 Francis Street. Recovered from
[Gibson] was $325[.00].
Trial Court Opinion, 1/5/2015, at 2.
The Commonwealth charged Gibson with delivery of a controlled
substance and simple possession of a controlled substance.1 On July 29,
2014, the Commonwealth filed a motion in limine to admit other acts
evidence pursuant to Pa.R.E. 404(b). The Commonwealth sought to
introduce three professionally produced on-line rap music videos featuring
Gibson. More specifically, in the motion in limine, the Commonwealth
alleged the following:
On January 2, 2014, [Gibson] published a video entitled
“F**ked Up” on YouTube. [Two-minutes and thirteen
seconds into the video, Gibson] says, “started selling crack
at 17th and Ridge[,] no coat just a hoodie on and it was cold
as s[h]it so f**ked up I being serving my man mom so
f**ked up I’m losing my damn mind.”
On February 19, 2014, [Gibson] published a video entitled
“Do Ya Hear Me.” At 56 seconds [into the video,] [Gibson]
says, “my favorite color green, but for me to get that green
I had to sell white.” [Gibson] is standing at the Francisville
Recreation Center. At [one-minute and 20 seconds, Gibson]
says, “cash rules everything around me cream get the
money I’m trying to lean on the money plotting on the
paper watch me scheme for that money starting with a
block on every 16th be hard I’m always have feens whether
its music or selling coke all I want to know is do you niggas
hear me.” At [two minutes and thirty-seven seconds into
the video, Gibson] says, “are we talking fact or are we
talking bout fiction when I say I’m in the mix [I’m] talking
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1
35 P.S. §§ 780-113(a)(30) and 780-113(a)(16), respectively.
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about the tracks when I say I’m dishing dimes I’m talking
about slinging crack.”
On April 9, 2014, [Gibson] published “Made it Off Caine” On
YouTube. At [one minute and 34 seconds into the video,
Gibson] says, “whip that shit till my hand ache, whip that
shit like I’m trying to make pancakes, scrape everything off
the damn plate, I got rocks the size of your damn face, I
talk this shit cause every day I live it, pray to [G]od cause
every day I’m sinning, I ain’t lying I got stacks in my
pockets, tell em like this when they ask how I got it made
all this shit off caine.”
Id. at 2-3 (footnotes omitted).
Moreover, as the trial court noted, “[t]he videos are professionally
produced, with high quality camera work, and high quality video and audio
editing, depicting multiple venues, singers and supporting cast members.”
Id. at 3. The locations depicted in the videos are within several blocks from
where police stopped Gibson and Ms. Manuel. Id. at 2, n.1-2. Gibson did
not produce the videos and he did not post them on YouTube. Id. at 3.
On August 20, 2014, Gibson filed a response in opposition to the
Commonwealth’s motion in limine. On August 21, 2014, the American Civil
Liberties Union of Pennsylvania (ACLU-PA) also filed a brief in opposition to
the Commonwealth’s motion in limine. On August 26, 2014, the trial court
held a hearing on the motion and denied relief. On September 5, 2014, the
Commonwealth filed a motion for reconsideration. On September 9, 2014,
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the trial court held a hearing and again denied relief. This timely appeal
resulted.2
On appeal, the Commonwealth presents the following issue for our
consideration:
Where [Gibson] is charged with selling cocaine and the
defense theory is that the money he possessed following an
apparent drug sale came from a legitimate source, did the
lower court err in excluding from evidence videos made by
[Gibson] in which he proclaims [to] have “stacks of money
in his pocket” from “selling coke”?
Commonwealth’s Brief at 1 (original brackets omitted).
The Commonwealth contends that the trial court abused its discretion
and substantially handicapped the prosecution “from introducing [Gibson’s]
own videos bragging of his cocaine selling.” Id. at 6. The Commonwealth’s
argument is comprised of three sub-parts. First, the Commonwealth argues
that the videos are relevant under Pa.R.E. 404(b) to show motive and intent.
Next, the Commonwealth avers the videos are relevant and constitute
admissions by Gibson that show a common scheme or modus operandi.
Finally, the Commonwealth argues that the videos are necessary for an
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2
On September 26, 2014, the Commonwealth filed a notice of appeal, and
a corresponding concise statement of errors complained of on appeal under
Pa.R.A.P. 1925(b), seeking review of an interlocutory order by permission
pursuant to Pa.R.A.P. 1311. The trial court continued the trial date pending
resolution of this appeal and filed an opinion pursuant to Pa.R.A.P. 1925(a)
on January 5, 2015. In addition, ACLU-PA filed an appellate amicus brief on
behalf of Appellant for our consideration.
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anticipated defense that the money police found on Appellant upon arrest
came from a legitimate source. We will examine these contentions in turn.
First, however, we set forth our standard of review. We review the
denial of a motion in limine for an abuse of discretion. Commonwealth v.
Johnson, 107 A.3d 52, 68 (Pa. 2014) (citation omitted). “An abuse of
discretion is more than just an error in judgment and, on appeal, the trial
court will not be found to have abused its discretion unless the record
discloses that the judgment exercised was manifestly unreasonable, or the
result of partiality, prejudice, bias or ill-will.” Id.
In the first portion of its argument, the Commonwealth contends that
the videos are relevant under Pa.R.E. 404(b) to show “evidence of other
crimes, wrongs, or acts” to prove such things as “motive, opportunity,
intent, preparation, plan, knowledge, and identity” and that the probative
value of the videos outweighs the potential for prejudice. Commonwealth’s
Brief at 8, citing Pa.R.E. 404(b)(2) and (3) (brackets omitted). The
Commonwealth argues that Gibson’s “own proclamations in the videos of
‘having stacks [of money] in [his] pocket’ from ‘selling coke’ and ‘caine’ in
that neighborhood” are relevant to prove his intent. Id.
This Court has stated:
Relevance is the threshold for admissibility of evidence.
Pennsylvania Rule of Evidence 401 provides as follows:
Rule 401. Test for Relevant Evidence
Evidence is relevant if:
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(a) it has any tendency to make a fact more or
less probable than it would be without the
evidence; and
(b) the fact is of consequence in determining the
action.
Pa.R.E. 401. 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.
‘All relevant evidence is admissible, except as otherwise
provided by law. Evidence that is not relevant is not
admissible.’ Pa.R.E. 402. ‘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.’ Pa.R.E. 403.
Pennsylvania Rule of Evidence 404(b) provides as follows:
Rule 404. Character Evidence; Crimes or Other
Acts
* * *
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or
other act is not admissible to prove a person's
character in order to show that on a particular
occasion the person acted in accordance with
the character.
(2) Permitted Uses. This evidence may be
admissible for another purpose, such as
proving motive, opportunity, intent,
preparation, plan, knowledge, identity,
absence of mistake, or lack of accident. In a
criminal case this evidence is admissible only if
the probative value of the evidence outweighs
its potential for unfair prejudice.
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Pa.R.E. 404(b)(1)-(2). Evidence of [other acts] is not
admissible for the sole purpose of demonstrating a criminal
defendant's propensity to commit crimes. Nevertheless,
evidence may be admissible in certain circumstances where
it is relevant for some other legitimate purpose and not
utilized solely to blacken the defendant's character.
Specifically, [other acts] evidence is admissible if offered for
a non-propensity purpose, such as proof of an actor's
knowledge, plan, motive, identity, or absence of mistake or
accident. When offered for a legitimate purpose, evidence
of [other acts] is admissible if its probative value outweighs
its potential for unfair prejudice.
Commonwealth v. Tyson, 2015 Pa. Super. 138, at *3 (all case citations and
some quotations omitted).
As the Commonwealth alleges, “evidence of [other] acts is admissible
where there is a legitimate reason for the evidence, such as to establish
motive [or intent].” Commonwealth v. Dowling, 883 A.2d 570, 578 (Pa.
2005) (citation omitted). “In order for evidence of [other] acts to be
admissible as evidence of motive, the [other] 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.” Id.
Moreover, this Court has previously determined:
With a modicum of effort, in most cases it is possible to
note some similarities between the accused's [other acts]
and that alleged in a current case. To preserve the purpose
of Rule 404(b)(1), more must be required to establish an
exception to the rule—namely a close factual nexus
sufficient to demonstrate the connective relevance of the
[other] acts to the crime in question. […T]his Court has
warned that [other] acts may not be admitted for the
purpose of inviting the jury to conclude that the defendant
is a person ‘of unsavory character’ and thus inclined to have
committed the crimes with which he/she is charged.
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Commonwealth v. Ross, 57 A.3d 85, 104-105 (Pa. Super. 2012) (en
banc).
Further, while the videos at issue were posted to YouTube after the
charged crimes,3 we have previously determined “Rule 404(b) does not
distinguish between prior and subsequent acts.” Commonwealth v.
Kinard, 95 A.3d 279, 285 n.3 (Pa. Super. 2014). “Evidence of subsequent
[acts] is less strongly probative of intent than prior offenses since it does not
establish that a defendant possessed the requisite intent prior to the
commission of the crime being tried.” Commonwealth v. Martinez, 447
A.2d 272, 274 (Pa. Super. 1982). “Evidence of a later [act] is so tenuously
related to intent at the time of an earlier [act] that it is admissible only if
proof of both [] is necessary to prove the Commonwealth's case.” Id.
There are two prior Pennsylvania decisions dealing specifically with rap
video evidence – Commonwealth v. Ragan, 645 A.2d 811 (Pa. 1994) and
Commonwealth v. Flamer, 53 A.3d 82 (Pa. Super. 2012). The
Commonwealth barely touches upon them. See Commonwealth’s Brief at
13. We find it necessary to summarize those cases.
In Ragan, Ragan was convicted of first-degree murder, recklessly
endangering another person, and possessing an instrument of crime after an
altercation on a basketball court led to a fatal shooting. On appeal to our
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3
There is no evidence as to when the videos were filmed or produced.
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Supreme Court, Ragan argued “that the trial court improperly admitted a rap
song recorded by [his] rap group the ‘Plush Brothers.’” Ragan, 645 A.2d at
820. Ragan claimed that the rap was irrelevant because the lyrics generally
spoke to gun violence and shooting people, but did not specifically reference
the murder at issue. Id. Our Supreme Court noted, however, “the song in
question was introduced in response to testimony on direct examination in
which [Ragan] had portrayed himself as a college student and an artist.”
Id. The Supreme Court determined “[t]he fruits of [Ragan’s] artistic
leanings were clearly relevant to rebut this testimony.” Id. Moreover, in
determining that the rap lyrics’ probative value outweighed the prejudice to
Ragan, our Supreme Court relied upon its prior decision in Commonwealth
v. Abu-Jamal, 555 A.2d 846 (Pa. 1989) wherein it held “that the admission
of a literary work in which the defendant stated that ‘power grows out of the
barrel of a gun’ was relevant to rebut the character testimony that the
defendant was a ‘peaceful and genial’ man[.]” Id. The Ragan Court
concluded the trial court did not abuse its discretion in admitting the rap
lyrics at issue.
Here, Ragan does not presently support reversal. The Commonwealth
is not, at this time, seeking to rebut character evidence in an effort to
impeach Gibson. Moreover, there has been no proffer of such evidence and
no effort by Gibson, as of yet, to offer a legitimate source defense for the
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found currency. Thus, a pretrial order directing the admission of the rap
videos is premature at this point. However, we note that if Appellant places
his character at issue, or alleges at trial the currency recovered from him
derived from a legitimate source, then, as we discuss more fully later in
relation to the third subpart of the Commonwealth’s contention, the
Commonwealth can renew its request to admit the rap videos.
Other cases relied upon by the Commonwealth do not support its
contention that it is immediately entitled to relief on grounds that Gibson’s
rap videos constitute admissions. In Flamer, the Commonwealth sought to
introduce evidence that, while imprisoned on murder charges, Flamer
conspired to murder a witness. More specifically, “the Commonwealth filed a
motion in limine, where it sought to introduce fifteen pieces of evidence to
establish that Nafeast [Flamer] and Marvin [Flamer] conspired” with another
man to murder the witness. Flamer, 53 A.3d at 84. Listed among those
pieces of evidence were “Nafeat’s personal raps and writings recovered from
his prison cell.” Id. at 86. The trial court denied the Commonwealth’s
request to admit the recovered raps and writings. A panel of this Court
ultimately determined:
[T]he trial court abused its discretion in finding the writings
and raps of Nafeast to be irrelevant and prejudicial. In these
raps, Nafeast talks about people ‘keeping their mouths
shut’, sending his friends to kill for him, and ‘popping shells’
in people that ‘run their mouth.’ These statements in the
raps have a tendency to show contemplation for a
conspiratorial arrangement; therefore, these statements are
relevant. Although these statements are also prejudicial, the
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fact that these statements are harmful to the defendant's
case does not make these statements unduly prejudicial.
Statements that are on balance prejudicial are statements
that inflame the jury to decide the case on that evidence
alone and not legal propositions. These statements do not
rise to that level of prejudice. Therefore, the trial court
abused its discretion in finding the relevant statements in
these raps inadmissible.
Id. at 89-90.
In the case sub judice, the trial court determined:
Flamer provides no precedent for admission of the videos
in this case. To the contrary, the reason for admitting the
rap lyrics written by Flamer and found in his prison cell, was
that they showed a contemplation for the conspiracy to kill
a Commonwealth witness. Thus, the rap lyrics were
admissible because they related to and were in the course
of the conspiracy. Here, by contrast, the music videos do
not evidence a similar tie-in. As the Flamer court noted, it
was not an abuse of discretion to exclude a rap by
[Appellant], where ‘the rap was too vague to be construed
as being about the case.’
Trial Court Opinion, 1/5/2015, at 6 (footnotes omitted).
We agree. Unlike Flamer, where the Commonwealth charged the
defendant with conspiring to kill a witness and a conviction turned on proof
that Flamer entered into an agreement with the intent to commit murder,
the Commonwealth here charged Gibson with actual delivery of crack
cocaine. Under such circumstances, Gibson’s intent and/or mens rea is
substantially less relevant and we concur with the trial court’s assessment,
at this time. The videos would be of little assistance to the jury and would
only create an impermissible inference that Gibson was a bad person. Here,
there were purported eyewitnesses to the charged offenses and police
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recovered physical evidence – cash from Gibson and narcotics from Ms.
Manuel. Thus, the instant rap videos are unnecessary to prove the
Commonwealth’s case. Moreover, we recognize that Flamer dealt with rap
lyrics that prison officials confiscated directly from his cell. Accordingly,
there was strong indicia that Flamer was the individual who wrote those
lyrics. Hence, that scenario is different from the situation presented here,
where there were multiple people involved in the production and authorship
of the rap videos.4
Next, the Commonwealth contends that the rap videos constitute
admissions by Gibson and, therefore, the trial court erred in precluding
them. Relatedly, the Commonwealth avers that the videos are significant to
show a common scheme or modus operandi for drug trafficking as described
by Gibson’s own admissions. Commonwealth’s Brief at 10-11. The
Commonwealth argues “[o]ther bad acts evidence is particularly admissible
where it constitutes an admission of guilt.” Id. at 8. More specifically, the
Commonwealth contends “the statements made in the videos are
unquestionably admissions” because Gibson “boasts specifically about
making money selling crack cocaine while directly referencing or being
visually depicted in a location that is within a three-block radius of the scene
of the instant crime.” Id. at 14.
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4
It must be noted that there is nothing in the certified record, including the
rap videos themselves, which identifies who wrote the rap song lyrics.
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In arguing “other bad acts evidence is particularly admissible where it
constitutes an admission of guilt[,]” the Commonwealth relies upon our
Supreme Court’s decisions in Commonwealth v. Dreibelis, 426 A.2d 1111
(Pa. 1981), Commonwealth v. Brohnstein, 691 A.2d 907 (Pa. 1997), and
Commonwealth v. Vandivner, 962 A.2d 1170 (Pa. 2009). Id. at 8.
Those cases, however, are distinguishable from the instant case, because
they involved statements made by the defendants concerning detailed
particulars related to the crimes for which they were being prosecuted.
In Dreibelis, two witnesses testified regarding statements they heard
Dreibelis make concerning a conspiracy and killing. One of the witnesses
testified that she overheard Dreibelis speaking with his co-conspirators
about leaving evidence at the scene and questioning why they left witnesses
alive at the scene. Dreibelis, 426 A.2d at 1113. This witness also testified
that Dreibelis and his co-conspirators “changed out of their clothes and
burned the clothing they had been wearing” and “cut and dyed their hair and
shaved their beards.” Id. The other witness testified that Dreibelis
admitted to her that he went with his co-conspirators to the murder victim’s
home to collect a debt and shot him when he reached for a knife. Id. at
1114. She also testified that Dreibelis told her “they buried their guns and
they d[y]ed their hair and they shaved.” Id. Our Supreme Court found “no
error in the admission of the testimony at issue.” Id. at 1115. The Court
determined that the evidence was relevant, but left to the factfinder to
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determine its weight. Id. Although Dreibelis involved evidentiary
admissions, it did not involve “other bad acts.”
In Bronshtein, the Supreme Court determined that a defendant’s
admission of one murder was permitted in the criminal prosecution for
another murder. Bronshtein was on trial for the robbery and homicide of
Alexander Gutman, the owner of a jewelry store in the King of Prussia
Shopping Center. Bronshtein initially confessed to police that he robbed
and killed another jeweler named Jerome Slobotkin over a month after the
Gutman murder at issue, in the same geographical area. Later, Brohenstein
recanted and claimed someone else had committed the two murders.
Brohnstein, 691 A.2d at 916-917. The Supreme Court determined that the
admission to police regarding Slobotkin was admissible to establish a
common scheme or plan in the Gutman murder trial. Id. at 915-916. The
Brohnstein Court concluded:
Slobotkin and Gutman, both identified as Russian–Jews,
were murdered with firearms in the course of robberies at
their respective jewelry stores. Both victims were shot in
the head at close range. [Bronshtein] initially denied his
involvement in both crimes but told police that he knew who
had committed the crimes. Although [Bronshtein] initially
confessed to the Slobotkin murder, he later recanted that
confession and told police that the two murders had been
committed by the same person, a mysterious ‘Mr. X.’
Finally, the Slobotkin murder was committed only five
weeks after the Gutman murder. Given the similarities
between these two crimes occurring only weeks apart,
evidence indicating the identity of the perpetrator of the
Slobotkin murder was admissible for the purpose of
establishing the identity of the perpetrator of the Gutman
murder through a common scheme, plan or design.
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Id. at 916.
Finally, in Vandivner, police apprehended Vandivner after an
altercation wherein he shot two people. At the police barracks, Vandivner
stated, “This is a death penalty case and I don’t want the needle, life for a
life. Tell the DA I will plead guilty to life. I would have killed myself if I
knew Michelle was dead.” Vandivner, 962 A.2d at 1174. The Supreme
Court declared:
[T]he content of the statement obviously was relevant: it
was an admission of guilt. In addition, the statement had
substantial probative value in that [Vandivner] in effect
admitted that he knew precisely what he had done including
the potential consequences of his conduct. That awareness,
in turn, was relevant to rebut his trial claims of voluntary
intoxication and diminished capacity.
Id. at 1181. Vandivner involved a direct admission to police for a crime
that was the subject of the defendant’s trial.
As the foregoing cases establish, our Supreme Court has allowed, as
non-hearsay, a defendant’s admissions regarding crimes that are the subject
of a trial. It has also allowed, under Rule 404(b), evidence of other acts
where that testimony established a common scheme or plan. In this case,
neither of those two criteria have been met. First, the rap videos are not
admissions. There are no specific references to the crime at hand. In fact,
there is no evidence that Gibson even wrote the lyrics as opposed to merely
reciting them. At best, the videos are artistic expressions that the
Commonwealth seeks to admit to show Gibson’s propensity to commit
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crimes. The cited cases all involved specific admissions relative to the case
at hand, which were made directly to a third party. In this case, as noted
by the trial court, the videos “were produced and directed by persons and
entities other than [Appellant].” Trial Court Opinion, 1/5/2015, at 3 While
the lyrics generally reference the neighborhood where the crime was
allegedly committed, Appellant does not specifically reference the crime in
controversy, let alone admit that he committed it. Thus, the rap videos do
not constitute an admission to the crimes charged and we discern no abuse
of discretion by the trial court for denying the Commonwealth’s request to
admit the videos as an admission to a crime.
Regarding common plans and schemes under Rule 404(b), a panel of
this Court recently determined:
When ruling upon the admissibility of evidence under the
common plan exception, the trial court must first examine
the details and surrounding circumstances of each criminal
incident to assure that the evidence reveals criminal
conduct which is distinctive and so nearly identical as to
become the signature of the same perpetrator. Relevant to
such a finding will be the habits or patterns of action or
conduct undertaken by the perpetrator to commit crime, as
well as the time, place, and types of victims typically chosen
by the perpetrator.
Commonwealth v. Tyson, 2015 Pa. Super. 138, at *3 (emphasis added).
Initially we note that in reviewing the decided cases in this area of law,
we uncovered a case dealing with a literary work describing prior purported
crimes. In Commonwealth v. Einhorn, 911 A.2d 960 (Pa. Super. 2006),
Einhorn was on trial for the murder of his girlfriend, Holly Maddux. A prior
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panel of this Court determined that it was proper for the Commonwealth to
present “evidence of Einhorn’s physical assaults of his prior girlfriends, Rita
Resnick and Judith Sabot, as documented in his diary” in order to show a
common plan or scheme. Einhorn, 911 A.2d at 968. Upon review, the
diary entries specifically referenced the other two women by name and
described, in particular detail, hurting and choking them. Einhorn also wrote
in his diary, “[v]iolence always marks the end of a relationship” and “[a]ll
three attacks were motivated by a woman ending a relationship with
Einhorn.” Id. The trial court examined the similarity of the other acts and
the timeliness of the acts in relation to each other and determined the diary
entries were admissible as evidence of a common plan or scheme. Id. The
trial court issued a cautionary jury instruction that the evidence was to be
used for the limited purpose. Id. On appeal, we discerned no abuse of
discretion or error of law. Id. In sum, in Einhorn, the proffered writings
specifically identified victims and detailed prior crimes.
Indeed, the cases cited by the Commonwealth all deal with actual
criminal acts. See Commonwealth Brief at 11-12, citing Commonwealth v.
Hicks, 91 A.3d 47 (Pa. 2014) (in prosecution for murder of a prostitute high
on crack cocaine, the Commonwealth was permitted to introduce common
plan witness testimony wherein Hicks admitted he “had a problem hurting
prostitutes” after supplying them with narcotics); Commonwealth v.
Boyle, 733 A.2d 633 (Pa. Super. 1999) (testimony regarding four completed
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drug sales using a confidential informant to set up identical deliveries shows
a common plan); Commonwealth v. Echevarria, 575 A.2d 620 (Pa.
Super. 1990) (confidential informant “was able to purchase cocaine from
[Echevarria] on two occasions in the days leading up to [his] arrest for a
third sale, [thus,] was directly relevant to the charge of possession with
intent to deliver cocaine.”).
Unlike the situation here, in those cases, the prior bad act evidence
was testimony from other individuals related to actual prior criminal acts.
Furthermore, in order to admit common plan prior acts evidence, there must
be a distinct or signature plan to reveal that the perpetrator is engaging in
nearly identical criminal conduct. Here, the alleged other acts evidence is
comprised of lyrical performances referring generally to garden-variety drug
transactions in a Philadelphia neighborhood. As such, the video references
possess a derivative, fictional quality and lack the distinctive, signature
characteristics required for their admission under the common scheme and
plan exception to Rule 404(b). Thus, we discern no error in precluding the
rap videos from trial based upon a common plan or scheme under Rule
404(b).
In the third sub-part of the appellate issue presented, the
Commonwealth argues that the videos, particularly those excerpts wherein
Appellant brags about having stacks of cash, are necessary for an
anticipated defense that the money found on Appellant, in the search
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incident to arrest, came from a legitimate source. Commonwealth’s Brief at
16-18.
Preliminarily, the trial court recognized “[t]he anticipated defense has
not been articulated or adopted by the defense, but the expectation has
been described by the Commonwealth.” Trial Court Opinion, 1/5/2015, at 8.
The trial court ultimately determined
the probative value of the video evidence to establish that
the currency found on [Gibson’s] person is exceedingly low
to non-existent. Conversely, we concluded that the danger
of unfair prejudice in using his art to broadly brand [Gibson]
as a drug dealer is great.
Id. at 9.
As we discussed, other act evidence may be introduced to impeach
character evidence. See Ragan supra. Moreover, our Supreme Court has
held that other act “evidence may also be admissible to impeach the
credibility of a testifying defendant[.]” Commonwealth v. Reid, 811 A.2d
530, 550 (Pa. 2002). However, the Commonwealth has not provided, and
our independent review has not revealed, any legal authority to support the
proposition that prior bad acts may be introduced in anticipation of a
defense. Hence, we discern no trial court error in denying the
Commonwealth’s motion in limine to introduce the videos in anticipation of a
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wholly speculative defense. Accordingly, for all of the foregoing reasons,
the Commonwealth is not entitled to relief.5
Order affirmed. Case remanded for trial. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/30/2015
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5
We have examined the amicus brief filed by ACLU-PA. Essentially, ACLU-
PA asserts that admitting the videos into evidence “would pose an undue risk
that Mr. Gibson will be punished in violation of his free-speech rights for
speaking about crime, and for participating in an art form that many people
find either offensive or incomprehensible, rather than for actual committing
a crime.” ACLU-PA Amicus Brief at 9. ACLU-PA contends that admitting
“Gibson’s art work as evidence rather than creative expression is likely” to
chill free speech. Id. at 11. Having already determined that the
Commonwealth is not entitled to relief, we need not reach these
constitutional concerns.
Finally, on June 15, 2015, the Commonwealth filed a petition to file a post-
submission response to the appellate briefs filed by Gibson and ACLU-PA.
The Commonwealth avers those briefs were filed late and it did not have the
opportunity to respond to either filing prior to oral argument. We grant the
Commonwealth’s request pursuant to Pa.R.A.P. 2501(a) and have
considered the post-submission filing in rendering our decision.
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