Com. v. Pappert, A.

J. A20005/14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ALLYN PAPPERT, : No. 2570 EDA 2012
:
Appellant :
Appeal from the Judgment of Sentence, May 1, 2012,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0004546-2010
BEFORE: FORD ELLIOTT, P.J.E., MUNDY AND MUSMANNO, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 25, 2014
Allyn Pappert shot his daughter after an argument about her
boyfriend. On January 20, 2012, after a four-day jury trial, appellant was
convicted of third degree murder and possessing an instrument of crime
(“PIC”). Appellant now appeals from the judgment of sentence; we affirm.
Kathy Pappert, the 41-year-old victim, was dating a man named Jay.1
Appellant disapproved of his daughter’s relationship and was strongly
opposed to the couple living together. Appellant once told Linda Pappert,
Kathy’s mother and his ex-wife, “You know, sometimes I really feel like
killing your daughter.” (Notes of testimony, 1/18/12 at 26.) He also talked
to Linda about shooting Jay with a hollow point bullet, and appellant also
1
We note Jay’s surname is not of record.
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remarked that he “wouldn’t think twice” about using such dangerous
ammunition on another person. (Id. at 25.) When pressed by Linda as to
what he would do to hide the body if he killed the victim, appellant indicated
that he “wouldn’t want to ruin [his] blender” because “the bones would ruin
[the blade].” (Id. at 27, 42.) Appellant indicated he was comfortable with
going to jail if he was caught as he would receive medicine for his affliction,
“have like three meals a day,” and be given a “place to sleep.” (Id. at 27,
30-31.)
On February 14, 2010, the victim had an argument about Jay with
appellant in the rear bedroom of his home. After unsuccessfully calling a
taxicab to arrange a ride to Jay’s house, the victim told appellant, “I’m out of
here,” and appellant responded by commanding “You ain’t going nowhere.
Get back in here.” (Id. at 231.) As the victim attempted to leave, appellant
picked up one of his guns and shot his daughter in the right side of her
torso. (Id. at 227-229.) The victim staggered down the stairs to the living
room, lay down on a sofa bed, and screamed for help. (Id. at 98-100.)
Appellant called 911 and the tape was played for the jury. Appellant
told the dispatcher that he shot his daughter who had been “bitching and
moaning” about having been shot. Appellant expressed that the victim had
been “destroying his house” and that he was 64 years old and on disability
insurance and could not afford to fix the things she broke. As his daughter
was dying, appellant accused her of continued malfeasance, telling the
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operators that “she’s destroying shit downstairs,” and that “she won’t listen
to me.” (Exhibit C-37.)
At approximately 3:55 a.m., pursuant to a radio call, Philadelphia
Police Sergeant Jeffrey Rabinovitch arrived to 3184 Belgrade Street. Here,
he met Officer Herring who was trying to kick in the front door as he could
hear screaming inside. Upon entering the home, Sergeant Rabinovitch
observed the victim lying on the bed bleeding. The sergeant asked her if
she had been shot and she responded, “My dad shot me” and indicated that
appellant was upstairs. At this time, the SWAT team arrived and the police
found appellant seated at a desk on the phone with 911. As appellant was
being arrested, he stated, in a “very casual, nonchalant” manner, that he
shot his daughter because “[s]he wouldn’t shut up.” (Notes of testimony,
1/18/12 at 96-104.) The officer also testified that appellant’s demeanor was
“disturbingly casual” considering the circumstances. (Id. at 103.) Several
other weapons and “hundreds” of rounds of live ammunition were recovered
from the house. (Id. at 76-78.)
Detective Nathan Williams interviewed appellant following his arrest
after appellant waived his Miranda2 rights. The detective testified that
appellant appeared emotionless and confessed to shooting his daughter with
his Walther P-99 .40 caliber handgun. He stated that the victim made six
calls on his phone, and each one cost him money; he also averred that he
2
Miranda v. Arizona, 384 U.S. 436 (1966).
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was on a fixed income and that the victim had stopped paying him money.
Appellant alleged that the victim broke his cordless phone by throwing it
against the door. When describing how he shot his daughter, he stated:
I said, Kathy, if you destroy anything else in this
house, then you’re going to have to go. You’re going
to have to pay for it.
I had the gun in my hand and my finger on the
trigger, and it went boom. She was standing right
there in the doorway. I had my finger on the trigger
because I don’t normally keep a bullet in the
chamber, just in the magazine, should I drop it or
something and it didn’t go off.
Notes of testimony, 1/18/12 at 227.
An expert in ballistics, Officer Ronald Weitman, examined the
Walther P-99, the projectile recovered from the body, and other ballistics
evidence recovered. Officer Weitman explained that the Walther P-99 has a
double-Action/single-action trigger with a decocker. (Notes of testimony,
1/19/12 at 18-19.) The officer explained that this weapon is incapable of
firing a projectile unless someone physically chambered a round from the
magazine. (Id. at 28-30.) The gun must either be intentionally put into
single-action mode, or else be manually cocked by pulling a mechanism on
the gun backward and forward before firing. (Id.) The officer also testified
that the gun was loaded with hollow-point bullets; these bullets are designed
to “mushroom,” expand and cause collateral damage, upon impact with
human flesh. (Id. at 30, 47.) Dr. Marlon Osbourne, the assistant medical
examiner, determined the cause of death was a homicide. (Notes of
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testimony, 1/18/12 at 154-158.) Dr. Osbourne testified that the bullet
traveled through the victim’s arm, liver, interior vena cava, and stomach;
ultimately, the bullet lodged underneath her skin. (Id. at 171.)
Appellant testified at trial. He admitted to owning multiple guns and
having ammunition in the house. (Notes of testimony, 1/19/12 at 117.) He
habitually carried a gun around the house. (Id. at 119.) While he did not
like the victim’s boyfriend, he testified he had never threatened to kill him or
his daughter. (Id. at 120.) His defense was that the shooting was an
accident, which contradicted several accounts he had previously given that
he shot his daughter because she “wouldn’t shut up.” His explanation at
trial was:
And I goes -- got there. I turned around and I
seen [sic] the gun laying [sic] on the desk. I go, oh,
man, you ain’t taking my gun. Like that.
I went to grab it, and I’m not [sure] -- I’m
watching her so she don’t [sic] turn around and see
where I’m gonna hide it. I grab it like that there. I
slid it to the edge of the desk. And I guess I over
shot it, and it dropped. I grabbed it. When I
grabbed it, it went off.
Id. at 133-134. He also explained that he had told the 911 dispatchers that
his daughter was “bitching and moaning” because he thought she might be
“upset” about having been shot. (Id. at 145-146.)
On cross-examination, appellant denied telling his wife that he had a
hollow-point bullet with the victim’s boyfriend’s name on it and that he
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would use a blender3 to dispose of the victim’s body in the event that he
murdered her. (Id. at 185.) Appellant testified that the only thing the
victim broke before he shot her was his cordless phone, and he admitted
that he had once been told that hollow point bullets were capable of “a one[-
]shot drop.” (Id. at 194, 213.)
On January 20, 2012, the jury returned guilty verdicts for third degree
murder and PIC. On May 1, 2012, the court imposed a sentence of 20-40
years’ imprisonment for murder and a consecutive 1-2 year sentence for
PIC. Appellant filed post-sentence motions on May 4, 2012; the motions
were denied on August 17, 2012. Appellant filed a timely notice of appeal,
and the trial court filed an opinion.4 (Docket #9, 10.)
Appellant now presents the following issues for our review:
1. Were the convictions for the crimes of Murder
of [sic] the Third Degree and [PIC] not
supported by sufficient evidence?
2. Were the convictions for the crimes of Murder
of [sic] the Third Degree and [PIC] against the
weight of the evidence?
3. Did Judge Robins New err when she failed to
charge the jury on the crime of Involuntary
Manslaughter? Did the evidence demonstrate
or suggest [appellant] was acting only
negligently or recklessly, thereby warranting
an Involuntary Manslaughter charge?
3
Appellant referred to the appliance as a juicer. (Id.)
4
Appellant was not ordered to and did not file a concise statement of errors
complained of on appeal within 21 days pursuant to Pa.R.A.P., Rule 1925(b),
42 Pa.C.S.A.
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4. Did the trial judge err in not granting a mistrial
and did the District Attorney err in eliciting a
prior alleged unrelated bad act and hearsay
testimony that [appellant] came to the door
with a gun two years before? Was the
prejudice by this hearsay and alleged unrelated
bad acts not curable by the curative
instruction?
5. Did the trial judge err in not granting a mistrial
and did the District Attorney err in eliciting
from [appellant’s] ex-wife, Linda Pappert, that
[appellant] told her he would not think twice of
using a hollow point bullet on a person, and
then allow her to further state he would use
the bullet on the decedent’s boyfriend? (1/18
N.T. 25). Did this reference to unrelated bad
acts deny [appellant] his right to due process
and fair trial?
Appellant’s brief at 6-7.
The first issue presented for our review is whether the evidence was
sufficient to support the verdicts of third degree murder and PIC. No relief is
due.
Prior to addressing this issue, we will recite our standard of review:
The standard we apply in reviewing the sufficiency of
the evidence is whether viewing all the evidence
admitted at trial in the light most favorable to the
verdict winner, there is sufficient evidence to enable
the fact-finder to find every element of the crime
beyond a reasonable doubt. In applying the above
test, we may not weigh the evidence and substitute
our judgment for the fact-finder. In addition, we
note that the facts and circumstances established by
the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder
unless the evidence is so weak and inconclusive that
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as a matter of law no probability of fact may be
drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving
every element of the crime beyond a reasonable
doubt by means of wholly circumstantial evidence.
Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the trier of
fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to
believe all, part or none of the evidence.
Commonwealth v. Hutchinson, 947 A.2d 800, 805-806 (Pa.Super. 2008),
appeal denied, 980 A.2d 606 (Pa. 2009), quoting Commonwealth v.
Andrulewicz, 911 A.2d 162, 165 (Pa.Super. 2006).
“Third degree murder occurs when a person commits a killing which is
neither intentional nor committed during the perpetration of a felony, but
contains the requisite malice.” Commonwealth v. Tielsch, 934 A.2d 81,
94 (Pa.Super. 2007), appeal denied, 952 A.2d 677 (Pa. 2008), cert.
denied, 555 U.S. 1072 (2008) (citation omitted). “Malice is not merely ill-
will but, rather, wickedness of disposition, hardness of heart, recklessness of
consequences, and a mind regardless of social duty.” Commonwealth v.
Hardy, 918 A.2d 766, 774 (Pa.Super. 2007), appeal denied, 940 A.2d 362(Pa. 2008). “Malice may be inferred from the use of a deadly weapon on a
vital part of the victim’s body.” Commonwealth v. Gooding, 818 A.2d
546, 550 (Pa.Super. 2003), appeal denied, 835 A.2d 709 (Pa. 2003).
Appellant contends the Commonwealth did not demonstrate malice or
a motive for shooting the victim. (Appellant’s brief at 33.) He points to the
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fact that he called 911 and cooperated with the police. (Id. at 33, 36.)
Appellant also avers he “easily could have continued to shoot” as there were
more bullets in the gun. (Id. at 37.) He states that, at most, the evidence
shows that he acted negligently and recklessly in picking up the gun, which
discharged and killed his daughter. We disagree.
There is no doubt in this matter that the Commonwealth proved
appellant killed the victim with malice. When viewed in the light most
favorable to the Commonwealth, the evidence demonstrates that appellant
shot his daughter through her torso, a vital part of the body, with a deadly
weapon; such is sufficient to permit an inference of malice necessary for
murder in the third degree. Gooding, supra. Overwhelming evidence was
presented, including three inculpatory statements from appellant, including a
confession, that appellant shot the victim after an argument as she
“wouldn’t shut up” and was “destroying his house.” The argument was
about her boyfriend, whom appellant admittedly disliked. The
Commonwealth also demonstrated malice through appellant’s assertions on
the 9-1-1 tape. Moreover, expert testimony was presented that the gun
used must either be intentionally put into single-action mode, or else be
manually cocked by pulling a mechanism on the gun backward and forward
before firing.
The Commonwealth also presented testimony that appellant had
previously threatened to kill the victim and her boyfriend; in fact, he had
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threatened to shoot her boyfriend with the same type of hollow-point bullet.
Appellant also indicated he would dispose of the victim’s body in a blender if
he “actually killed her” if it would not damage the blender.
Clearly, the jury was permitted to reject appellant’s self-serving claim
that the gun had accidentally discharged. Additionally, “the Commonwealth
need not prove motive in order to establish the existence of malice.”
Commonwealth v. D’Ambro, 456 A.2d 140, 143 n.5 (Pa. 1983). See also
Commonwealth v. Manchas, 633 A.2d 618, 623 (Pa.Super. 1993), appeal
denied, 651 A.2d 535 (Pa. 1993). Suffice it to say that the trial court’s
verdict was supported by evidence legally sufficient to sustain a conviction
for third degree murder.
With regard to his conviction for PIC, appellant claims that the
evidence does not suggest the intent to employ the gun criminally.
(Appellant’s brief at 39.) Possession of an instrument of a crime is “a
misdemeanor of the first degree if [a defendant] possesses any instrument
of crime with intent to employ it criminally.” 18 Pa.C.S.A. § 907(a). Given
the above discussion of the third degree murder charge, there is sufficient
evidence from which the fact-finder could infer that appellant possessed a
gun with intent to use it in a criminal manner. Accordingly, we affirm this
conviction.
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Appellant further contends that the verdict of guilty of third degree
murder was so contrary to the weight of the evidence that he should have
been granted a new trial.
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question
of whether the verdict is against the weight of the
evidence. Because the trial judge has had the
opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination
that the verdict is against the weight of the
evidence. One of the least assailable reasons for
granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against
the weight of the evidence and that a new trial
should be granted in the interest of justice.
This does not mean that the exercise of
discretion by the trial court in granting or denying a
motion for a new trial based on a challenge to the
weight of the evidence is unfettered. In describing
the limits of a trial court’s discretion, we have
explained[,] [t]he term ‘discretion’ imports the
exercise of judgment, wisdom and skill so as to
reach a dispassionate conclusion within the
framework of the law, and is not exercised for the
purpose of giving effect to the will of the judge.
Discretion must be exercised on the foundation of
reason, as opposed to prejudice, personal
motivations, caprice or arbitrary actions. Discretion
is abused where the course pursued represents not
merely an error of judgment, but 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.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis
removed) (citations omitted).
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Appellant essentially reasserts his sufficiency of the evidence claim.
He states that he wishes to incorporate many of his sufficiency arguments
into his weight claim. (Appellant’s brief at 44.) Nevertheless, to the extent
that his weight claim can be distinguished, it fails to provide a basis for
relief. Appellant argues that the trial court abused its discretion by denying
his weight claim as there was “no motive” for the murder, he had no prior
criminal record, and he only shot his daughter once. Appellant also avers
that he had been taking the gun to hide it when it went off, and he fully
cooperated with the police.
Obviously, the jury rejected appellant’s claim that the shooting was
accidental. Again, testimony was presented that appellant had a contentious
history with his daughter about her boyfriend and had previously threatened
to kill her. Following an argument, appellant grabbed his gun and shot her
in the torso. Appellant called 911 while his daughter lay bleeding and stated
that he shot her because she “wouldn’t shut up” and related that she was
“bitching and moaning” about being shot. The trial court heard the
competing evidence and did not find that the jury’s decision was shocking to
its conscience. Appellant is not entitled to relief.
In his third issue, appellant asserts he requested a jury instruction for
involuntary manslaughter, which the court denied. Appellant, however,
maintains the facts at trial supported such an instruction. We disagree.
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“Our standard of review when considering the denial of jury
instructions is one of deference -- an appellate court will reverse a court’s
decision only when it abused its discretion or committed an error of law.”
Commonwealth v. Baker, 24 A.3d 1006, 1022 (Pa.Super. 2011) (citation
omitted). When reviewing the trial court’s instructions, the whole charge
must be examined. Commonwealth v. Lesko, 15 A.3d 345, 397 (Pa.
2011). The trial court is not required to instruct the jury pursuant to every
request. Commonwealth v. Rodriguez, 495 A.2d 569, 572 (Pa.Super.
1985).
It is well settled that an instruction on a mitigated form of homicide is
“warranted where the offense is at issue and the evidence would support
such a verdict.” Commonwealth v. Montalvo, 986 A.2d 84, 100 (Pa.
2009). The crime of involuntary manslaughter is defined as follows: “A
person is guilty of involuntary manslaughter when as a direct result of the
doing of an unlawful act in a reckless or grossly negligent manner, or the
doing of a lawful act in a reckless or grossly negligent manner, he causes the
death of another person.” 18 Pa.C.S.A. § 2504(a). “Where the act itself is
not unlawful, to make it criminal, the negligence must be such a departure
from prudent conduct as to evidence a disregard for human life or an
indifference to the consequences.” Commonwealth v. McLaughlin, 401
A.2d 1139, 1141 (Pa. 1979).
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Instantly, appellant testified that the shooting occurred as he
attempted to hide the gun from the victim so that she would not take the
weapon. Appellant claimed to believe the gun did not have a bullet in the
chamber at the time and thus it was not immediately fireable. At trial, he
blamed the victim declaring, “she must have loaded it, because I didn’t.”
(Notes of testimony, 1/19/12 at 149.) Appellant then averred he slid the
gun to the edge of the desk but “over shot it and it dropped.” (Id. at 133-
134.) After it fell “about four. . . [or] five inches,” appellant “grabbed it with
both hands” and “it went off.” (Id. at 134-135, 163-164.)
The trial court concluded that appellant’s claim that the shooting was a
complete accident was not “the type of recklessness needed for a finding of
involuntary manslaughter.” We agree. Appellant’s act of reaching for the
gun on the desk would not be an “unlawful act” within the definition of
involuntary manslaughter, see Commonwealth v. Flax, 200 A. 632, 638
(Pa. 1938), and appellant’s act of grabbing it after it fell on the floor could
not be seen as needlessly creating a danger to human life, thus constituting
criminally negligent conduct.
Rather, appellant’s version, if believed by the jury, would have
supported a verdict of homicide by misadventure, which was an instruction
provided by the court. (Notes of testimony, 1/20/12 at 111-112.) In Flax,
supra, we defined an accidental killing which would relieve the actor of
criminal responsibility for the death as being:
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Homicide by misadventure (which is excusable)
is the accidental killing of another, where the slayer
is doing a lawful act, unaccompanied by any
criminally careless or reckless conduct. ‘Three
elements enter into the defense of excusable
homicide by misadventure: (1) The act resulting in
death must be a lawful one. (2) It must be done
with reasonable care and due regard for the lives
and persons of others. (3) The killing must be
accidental and not intentional, or without unlawful
intent, or with out evil design or intention on the part
of the slayer. All these elements must concur and
the absence of any one of them will involve in guilt.
Even though the homicide is unintentional, it is not
excusable where it is the result or incident of an
unlawful act, such as pointing or presenting a gun,
pistol or other firearm at another person in such a
manner as to constitute an offense under the laws of
the state, . . . .’
Flax, at 637-638.
Appellant’s actions meet this criteria as he testified his actions were
done with reasonable care and due regard for his daughter. Appellant’s
testimony did not establish that he was reckless or grossly negligent to
warrant an involuntary manslaughter charge. Appellant testified that he
exercised great care to prevent accidents with his firearms; he explained the
safety precautions taken and his intent to hide the gun for his daughter’s
well-being. (See notes of testimony, 1/19/12 at 20, 143, 176). His defense
was that by happenstance the gun fell and discharged.
Moreover, although appellant claimed he shot the victim accidentally,
the trial evidence indicated otherwise. See Commonwealth v. Rogers,
615 A.2d 55, 62 (Pa.Super. 1992) (where the physical evidence is in
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contradiction to the defendant’s testimony, the court may refuse an
inapplicable instruction). Expert testimony was presented that appellant
would have had to manually chamber a round. Thus, he was not entitled to
an instruction on involuntary manslaughter.
In his fourth issue, appellant claims the trial judge erred in failing to
grant a mistrial after the District Attorney elicited a prior alleged, unrelated
bad act as well as hearsay testimony that appellant came to the door with a
gun two years before the victim’s death. (Appellant’s brief at 49.) Appellant
acknowledges the trial court’s cautionary instruction, but claims no
instruction could cure the prejudice derived from the testimony. (Id. at 50.)
We review the trial court’s decision to deny a mistrial
for an abuse of discretion. Commonwealth v.
Boone, 862 A.2d 639, 646 (Pa.Super.2004). A
mistrial is necessary only when “the incident upon
which the motion is based is of such a nature that its
unavoidable effect is to deprive the defendant of a
fair trial by preventing the jury from weighing and
rendering a true verdict.” Commonwealth v.
Parker, 957 A.2d 311, 319 (Pa.Super.2008),
appeal denied, 600 Pa. 755, 966 A.2d 571 (2009).
A mistrial is inappropriate where cautionary
instructions are sufficient to overcome any potential
prejudice. Id.Commonwealth v. Bedford, 50 A.3d 707, 712-713 (Pa.Super. 2012),
appeal denied, 57 A.3d 65 (Pa. 2012).
Instantly, Michael Mitchell, a Commonwealth witness, was called to
attempt to corroborate the fact that appellant carried firearms around his
house. Mitchell testified that he had once seen appellant answer his door
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while holding a gun. (Notes of testimony, 1/19/12 at 93.) However, during
his testimony, it became clear that Mitchell only had secondhand knowledge
of that event. (Id. at 94.) Defense counsel immediately objected, and the
trial court sustained appellant’s objection, denied his motion for a mistrial,
and gave an immediate cautionary instruction to disregard the testimony.
Ladies and gentleman of the jury, the witness cannot
testify as to things that people may have relayed to
him. You are to -- just as I told you in the
beginning, sometimes things would come in and I
would direct you to disregard them. And you may --
you must do so.
And so in this situation, since the witness did not see
the incident that occurred two years prior personally,
he may not relay to you what was told to him
because that person is not here for purposes of
cross-examination. And you are not to consider it,
nor may counsel argue it to you.
So you must act as if -- you must follow my
instructions, disregard it, not consider it. Any
questions or answers given in regard to that, please
cross it out of your notebooks.
Id. at 94-95.
Appellant’s bald claims of prejudice do not afford him relief. The court
sustained appellant’s objection to Mitchell’s hearsay testimony and also
unequivocally told the jury to disregard it. We can presume the jury
followed the court’s instructions, and appellant is unable to show otherwise.
See Commonwealth v. Mollett, 5 A.3d 291 (Pa.Super. 2010), appeal
denied, 14 A.3d 826 (Pa. 2011) (stating jury is presumed to follow court’s
instructions). Appellant admittedly did not object during trial to the court’s
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instruction. (Appellant’s brief at 51; see notes of testimony, 1/19/12 at 94-
95.) We agree with the trial court’s determination that appellant was not
entitled to mistrial, and any prejudice to appellant was effectively cured by
the court’s immediate cautionary instructions.
The final claim presented is whether Linda Pappert’s testimony that
appellant stated he “wouldn’t think twice about using [a hollow-point bullet]
on a person,” and had once threatened to do so to the victim’s boyfriend,
was inadmissible.5 That evidence, according to appellant, violated the
general rule barring proof of prior criminality.6
Our standard of review for considering whether a
ruling on the admissibility of evidence was proper is
well settled:
Admission of evidence is a matter within
the sound discretion of the trial court,
and will not be reversed absent a
showing that the trial court clearly
abused its discretion. Not merely an
error in judgment, an abuse of discretion
occurs when the law is overridden or
misapplied, or the judgment exercised is
manifestly unreasonable, or the result of
partiality, prejudice, bias, or ill-will, as
shown by the evidence on record.
5
We note the trial court did not address this issue in its Rule 1925(a)
opinion.
6
We also note our disagreement with the Commonwealth that this claim is
waived for purposes of appeal. The statement was addressed in a pretrial
ruling. (See notes of testimony, 1/17/12 at 156-157.)
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Commonwealth v. Handfield, 34 A.3d 187, 207-208 (Pa.Super. 2011),
quoting Commonwealth v. Cain, 29 A.3d 3, 6 (Pa.Super. 2011) (quotation
omitted).
Appellant’s argument ignores, however, that such evidence may be
admitted if it is relevant to prove something other than a defendant’s
propensity for committing crimes. E.g., Commonwealth v. Claypool, 495
A.2d 176 (Pa. 1985). The evidence here complained of by the appellant was
certainly relevant to prove motive, malice, or ill-will. Since the challenged
evidence was clearly admissible under an exception to the general
prohibition, no relief is due.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/25/2014
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