Com. v. Zerbe, Z.

J. A15044/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ZACKERY JAMES ZERBE, : No. 1941 MDA 2017
:
Appellant :
Appeal from the Judgment of Sentence, November 13, 2017,``
in the Court of Common Pleas of Lancaster County
Criminal Division at No. CP-36-CR-0006134-2016
BEFORE: PANELLA, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 09, 2018
Zackery Zerbe appeals the November 13, 2017 judgment of sentence in
which the Court of Common Pleas of Lancaster County sentenced him to an
aggregate term of 40 months to 10 years’ imprisonment for aggravated
assault, simple assault, and terroristic threats following a jury trial.1 After
careful review, we affirm.
The facts, as stated by the trial court, are as follows:
[Appellant] and the victim, [S.B.] [(“victim”)], were
married on August 14, 2015. Their families were
familiar with each other as [appellant], [appellant’s]
father, the victim, and the victim’s family all worked
for a company owned by the victim’s father. At some
point, the victim began to have concerns about
[appellant’s] drinking and expressed that to him. The
victim testified that a mere two (2) weeks before the
incident that gave rise to the instant charges,
1 18 Pa.C.S.A. §§ 2702(a)(1), 2702(a)(3), and 2706(a)(1), respectively.
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[appellant’s] drinking had led to an incident where he
punched her in the back of the head a couple of times
and threatened to get a gun. According to the victim,
[appellant] had threatened her, her family and her
animals if she told anyone about the incident and she
was scared.
Subsequently, on November 11, 2016, [appellant]
physically attacked the victim after she questioned
[appellant] about his drinking. [Appellant] came into
the bedroom after the victim had gone to bed and
proceeded to punch her repeatedly in the head, face
and her arms as she attempted to shield herself.
[Appellant] then proceeded to restrain the [victim]
while choking her with his arm and telling her that she
needed to die. The victim testified that during this
time she could not breathe, involuntarily urinated
herself and could feel herself slipping in and out of
consciousness. At some point, the victim’s earrings
were ripped from her ears. [Appellant] eventually let
go of the victim and, after pacing and yelling for some
time, retrieved a gun from a dresser. [Appellant]
waved the gun around and pointed it at the victim
threatening to kill her and her family. [Appellant] told
the victim that he was in control and that she was
going to listen to him and not see her parents
anymore. The victim pleaded with [appellant] to put
the gun down and after the victim had responded that
she had learned her lesson, [appellant] put the gun
on the dresser and left the room.
After [appellant] had left the room, the victim hid the
gun in another dresser drawer and texted her sister
for help from [appellant’s] cell phone, which was left
in the room. When the victim’s sister arrived at the
house, the victim ran past [appellant] and out of the
house telling her sister that [appellant] had a gun.
Together, she and her sister ran, first to her sister’s
house, and then drove to the victim’s parent’s [sic]
house where her mother called police. The victim was
transported to an emergency room, treated for her
injuries and released. Photographs were admitted
into evidence of the victim’s injuries over the course
of the next week and of the scene of the incident,
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which showed blood on the wall, a urine stain on the
bed and earrings on the floor. Dr. Callie Dagen, the
victim’s treating physician in the emergency room on
November 11, 2016, testified that she diagnosed the
victim in the emergency room with facial hematomas,
a closed-head injury and a left shoulder contusion
following the assault. Dr. Harry Kintzi, an expert in
emergency medicine, testified that it was his opinion,
based upon a review of the victim’s medical records
and the photographs, that the victim suffered a
significant strangulation event that “was not just for a
few seconds” and “was probably a near-death
experience.”
Prior to the incident on November 11, 2016, the
victim’s medical history included several prior
concussions, not related to or caused by [appellant],
for which she received continuing treatment once
every month. [Appellant] was aware of the victim’s
medical history and the continuing treatment of her
condition prior to punching her in the head on
November 11, 2016. In fact, the victim’s mother
testified that prior to the couple getting married, she
had specifically warned [appellant] that the victim
must avoid further injury to her head.
Trial court opinion, 1/25/18 at 1-4 (citations to record omitted).
On August 25, 2017, appellant filed a motion in limine and sought to
bar testimony from the victim concerning prior abuse at the hands of appellant
because the probative value of any testimony relative to the allegations of
prior abuse was outweighed by the danger of unfair prejudice to appellant. In
the same motion, appellant sought to bar testimony regarding prior
concussions suffered by the victim because the testimony was irrelevant since
appellant did not cause the concussions and any probative value would be
substantially outweighed by the danger of unfair prejudice to appellant. At
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the start of the trial on August 28, 2017, the trial court denied the motion as
to these two issues.
A jury convicted appellant of the aforementioned crimes. Appellant filed
a notice of appeal on December 13, 2017. On December 15, 2017, the trial
court directed appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). On January 5, 2018, appellant
complied with the order. The trial court filed its opinion on January 25, 2018.
Appellant raises the following issues for this court’s review:
I. Did the trial court err in denying [appellant’s]
Motion in Limine seeking to bar [the victim’s]
testimony regarding prior, unreported physical
abuse by [a]ppellant in addition to her
testimony regarding alleged past threats made
by [a]ppellant to deter [the victim] from
reporting abuse, where the probative value of
this evidence was substantially outweighed by
its prejudicial effect on [a]ppellant?
II. Did the trial court err in denying [appellant’s]
Motion in Limine seeking to bar [the victim’s]
testimony of prior concussions she experienced
which were not caused by [a]ppellant, where
this evidence was irrelevant and any probative
value was substantially outweighed by its
prejudicial effect on [a]ppellant?
Appellant’s brief at 5.
“On appeals challenging an evidentiary ruling of the trial court, our
standard of review is limited. A trial court’s decision will not be reversed
absent a clear abuse of discretion.” Commonwealth v. Aikens, 990 A.2d
1181, 1184 (Pa.Super. 2010) (citations omitted). “Abuse of discretion is not
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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. at 1184-1185
(citations omitted).
Initially, appellant contends that the trial court erred when it denied his
motion in limine to prevent the victim from testifying regarding prior
unreported physical abuse by appellant as well as testimony regarding alleged
past threats made by appellant to deter the victim from reporting the abuse
because the probative value of the evidence was substantially outweighed by
its prejudicial effect. Appellant contends that this evidence was not relevant2
and was unfairly prejudicial to him and not probative of any pertinent fact and
should have been inadmissible under Pennsylvania Rule of Evidence 404(b).
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
2 Rule 401 of the Pennsylvania Rules of Evidence provides that “‘relevant
evidence’ means evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.” Pa.R.E. 401.
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accident. Pa.R.E. 404(b)(2).[3] 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.
Aikens, 990 A.2d at 1185 (citations to case law omitted).
The evidence may also be admissible to
impeach the credibility of a testifying
defendant; to show that the defendant
has used the prior bad acts to threaten the
victim; and in situations where the bad
3 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.
(3) Exceptions for a Witness.
Evidence of a witness's character
may be admitted under Rules 607,
608, and 609.
Pa.R.E. 404(b)(1)-(3). Rules 607-609 address the impeachment of witnesses.
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acts were part of a chain or sequence of
events that formed the history of the case
and were part of its natural development.
In order for evidence of prior bad acts to
be admissible as evidence of motive, the
prior bad acts “must give sufficient ground
to believe that the crime currently being
considered grew out of or was in any way
caused by the prior set of facts and
circumstances.”
Commonwealth v. Reid, 571 Pa. 1, 35, 811 A.2d
530, 550 (2002) (citations omitted), cert. denied,
540 U.S. 850, 124 S. Ct. 131, 157 L. Ed. 2d 92 (2003).
Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, 1283 (Pa.Super.
2004).
Also, in Melendez-Rodriguez, this court held that evidence of prior
abuse was admissible to establish a defendant’s intent to terrorize and place
the victim in fear of serious bodily injury and to establish how it was possible
to terrorize the victim in that case. Id. at 1286.
Here, the trial court determined that the testimony concerning prior
abuse was relevant to indicate the relationship between appellant and victim,
the pattern of abuse, the escalating nature of the abuse, and appellant’s
motive and intent for the abuse at issue. (Trial court opinion, 1/25/18 at 7-8.)
The trial court reasoned:
Specifically, the victim’s testimony concerning the
tension surrounding the issue of [appellant’s] drinking
and the abuse that occurred just two (2) weeks prior
to [the] November 11, 2016 incident, gives insight as
to why the victim questioning [appellant] about his
drinking that evening resulted in [appellant] brutally
attacking the victim after she had gone to bed.
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Furthermore, [appellant’s] prior threats toward the
victim, her family and her animals if she disclosed the
abuse provides insight into why [appellant] retrieved
the gun after the attack and made threats to kill the
victim’s family and establishes [appellant’s] motive
for and intent to terrorize the victim with such threats.
The challenged evidence shows the chain or sequence
of events that formed the history of the case and is
part of the natural development of the case. It also
demonstrates [appellant’s] motive, malice, intent,
and ill-will toward the victim. The probative value of
the evidence clearly and substantially outweighed any
risk of unfair prejudice to [appellant] and its
admission was not error.
Id. at 8.
The trial court’s reasoning is sound and follows established case law.
The trial court did not abuse its discretion when it ruled that this relevant
evidence was admissible.
Appellant next contends that the trial court erred when it denied
appellant’s motion in limine that sought to bar the victim’s testimony of prior
concussions she experienced which were not caused by appellant, as this
evidence was irrelevant and any probative value was substantially outweighed
by the prejudicial effect on appellant. Appellant asserts that these concussions
were not relevant because they occurred years before appellant and the victim
were in a relationship and before the date of the abuse at issue here.
Appellant claims that the evidence has no relationship to the case against
appellant as it does not tend to prove or disprove any pertinent fact of the
case. Further, the admission of this evidence, appellant argues, was not
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harmless because it cast appellant in an extremely negative light in that he
had the past concussions in mind when he hit the victim in the head.
With respect to this issue, the trial court concluded:
The testimony concerning the victim’s prior
concussions, the victim’s continuing treatment and
[appellant’s] knowledge about the victim’s condition
was relevant because it tends to establish
[appellant’s] motive for punching [the victim]
repeatedly in the head and his intent to cause serious
bodily injury. The victim specifically testified that the
prior concussions were not caused by [appellant]. The
probative weight of the testimony clearly and
substantially outweighed any risk of unfair prejudice
to [appellant] and its admission was not error.
Trial court opinion, 1/15/18 at 9.
This court agrees that the evidence was relevant for the reasons stated
by the trial court. The trial court did not abuse its discretion when it ruled
that this evidence was admissible.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/9/2018
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