Com. v. Brewer, C.

J-S33002-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
COREY BREWER : No. 451 WDA 2022
Appeal from the Order Entered April 20, 2022
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0007039-2021
BEFORE: BENDER, P.J.E., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED: December 29, 2023
The Commonwealth of Pennsylvania appeals from the order entered on
April 20, 2022, in the Court of Common Pleas of Allegheny County, which
denied the Commonwealth’s motion in limine seeking permission to introduce
at trial evidence of other crimes, wrongs, or acts of Appellee, Corey Brewer,
pursuant to Pa.R.E. 404(b)(2).1 After careful review, we reverse and remand
for further proceedings.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 The Commonwealth may appeal an interlocutory order precluding evidence
when it provides a certification with its notice of appeal that the order
terminates or substantially handicaps the prosecution. Commonwealth v.
Whitlock, 69 A.3d 635, 636 n.2 (Pa. Super. 2013) (citing Pa.R.A.P. 311(d)).
As the trial court’s ruling in this case had the effect of excluding prosecution
evidence, and the Commonwealth has certified that the ruling substantially
handicaps the prosecution, this appeal is properly before this Court.
J-S33002-23
Appellee has been charged with three counts of strangulation; two
counts each of sexual assault and simple assault; and one count each of
aggravated assault, unlawful restraint, and terroristic threats.2 These charges
are based on the following allegations:
[B]etween May 1, 2021 and July 11, 2021[, Appellee] violently
sexually assaulted [B.S. (the “Victim”)], with whom he had been
having a consensual[,] romantic relationship. [Appellee] is
accused of preventing the [V]ictim from leaving his residence,
strangling her[,] and threatening her with a knife. [Appellee] is
accused of taking the [V]ictim’s cell phone to prevent her from
communicating with others. He’s also accused of threatening her
[with a deadly weapon and threatening to] kill her children and
[the] father [of her children] if she did not do what [he] wanted.
Trial Court Opinion (“TCO”), 12/2/22, at 4.
On December 16, 2021, the Commonwealth filed a notification of its
intention to present Rule 404(b)(2) evidence of other crimes, wrongs, or acts
(“motion in limine”), pursuant to Rule 404(b)(3).3 Specifically, the
Commonwealth sought to introduce testimony from three of Appellee’s former
intimate partners, whom he allegedly victimized, in order to establish a
common scheme or plan, which the Commonwealth asserts is critical to
proving “motive, intent, knowledge, and/or lack of mistake or absence” in the
present case. Commonwealth’s Brief at 12. Appellee filed a responsive
pleading, in which he countered that the Commonwealth intends to introduce
____________________________________________
2 18 Pa.C.S. §§ 2718(a)(1); 3124.1; 2701(a)(1); 2702(a)(4); 2902(a)(1);
and 2706(a)(1), respectively.
3 The Commonwealth’s Rule 404(b)(2) evidence is also referred to as “other-
acts evidence” and “prior bad acts evidence” throughout this writing.
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this evidence merely “as propensity evidence, to overwhelm the finder of fact
with allegations that [Appellee] is a domestic abuser so that [the jury is] more
likely to find that he committed domestic abuse in this case.” Appellee’s Brief
at 3-4 (internal citation and emphasis omitted).
After a hearing on the motion in limine and a subsequent status
conference, the trial court denied the Commonwealth’s request to present Rule
404(b)(2) evidence. See Order, 4/20/22 (single page). The Commonwealth
filed a timely notice of appeal and complied with the trial court’s order to file
a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. On
December 2, 2022, the trial court filed its Rule 1925(a) opinion. Herein, the
Commonwealth presents a single issue for our review: “Whether the trial court
erred in denying the Commonwealth’s motion in limine which sought to
introduce evidence of other crimes, wrongs, or acts pursuant to Pa.R.E.
404(b)(2)?” Commonwealth’s Brief at 5.
In reviewing the denial of the Commonwealth’s motion in limine, we
apply the following standard of review:
Admissibility of evidence is within the sound discretion of the trial
court and will not be disturbed absent an abuse of discretion. See
Commonwealth v. Arrington, … 86 A.3d 831, 842 ([Pa.] 2014).
“An abuse of discretion is not merely an error of judgment, but is
rather the overriding or misapplication of the law, or the exercise
of judgment that is manifestly unreasonable, or the result of bias,
prejudice, ill-will or partiality, as shown by the evidence of record.”
Commonwealth v. Sitler, 144 A.3d 156, 163 (Pa. Super. 2016)
(en banc) (citation omitted).
Commonwealth v. Lynn, 192 A.3d 165, 169 (Pa. Super. 2018).
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Additionally, we remain mindful of the following well-established
principles of law and rules of evidence:
Relevance is the threshold for admissibility of evidence. See
Commonwealth v. Cook, … 952 A.2d 594, 612 ([Pa.] 2008).
“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.” Commonwealth v. Drumheller, …
808 A.2d 893, 904 ([Pa.] 2002) (citation omitted). “All relevant
evidence is admissible, except as otherwise provided by law.”
Pa.R.E. 402.
One such law that limits the admissibility of relevant evidence is
Rule 404. Under Rule 404, evidence of “a crime, wrong, or other
act” is inadmissible “to prove a person’s character in order to show
that on a particular occasion the person acted in accordance with
the character.” Pa.R.E. 404(b)(1). However, this evidence may
be admissible when relevant for another purpose, such as
“providing motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.”
Pa.R.E. 404(b)(2).
Id.Moreover, “evidence of other crimes or acts may be admitted if such
evidence proves ‘a common scheme, plan or design embracing commission of
two or more crimes so related to each other that proof of one tends to prove
the others.’” Commonwealth v. Einhorn, 911 A.2d 960, 967 (Pa. Super.
2006) (quoting Leonard Packel and Anne Bowen Poulin, PENNSYLVANIA
EVIDENCE § 404-9(a) (2d ed. 1999)). “A common scheme may be relevant
to establish any element of a crime, where intent may be shown through a
pattern of similar acts.” Id. (citations omitted). “Evidence of a prior crime
may also be admitted to show a defendant’s actions were not the result of a
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mistake or accident, where the manner and circumstances of two crimes are
remarkably similar.” Commonwealth v. Tyson, 119 A.3d 353, 359 (Pa.
Super. 2015) (citation omitted). See id. (citing Commonwealth v.
Boczkowski, 846 A.2d 75 (Pa. 2004) (holding that evidence of the
defendant’s murder of his former wife was admissible to show absence of
accident in the prosecution for murder of the defendant’s second wife, where
both victims were found dead in a bathtub or hot tub in highly similar
circumstances)).
We emphasize that “[i]n a criminal case, … evidence [of other crimes,
wrongs, or acts] is admissible only if the probative value of the evidence
outweighs its potential for unfair prejudice.” Pa.R.E. 404(b)(2) (emphasis
added). “In this context, ‘unfair prejudice’ means a tendency to suggest
decision on an improper basis or to divert the jury’s attention away from its
duty of weighing the evidence impartially.” Lynn, 192 A.3d at 170 (citing
Commonwealth v. Dillon, 925 A.2d 131, 141 (Pa. 2007)). Hence, the
applicable rule is that “other-acts evidence is by default inadmissible unless
a Rule 404(b)(2) category or similar justification applies, and the probative
value of that evidence outweighs its potential for prejudice.” Id. at 171
(citation omitted; emphasis in original). “The burden is on the party seeking
admission to demonstrate the applicability of the exception to the general
rule….” Id. (citation omitted).
Here, the Commonwealth seeks to introduce at trial the following
evidence regarding Appellee’s former intimate partners to establish a common
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scheme or plan to exert complete control and domination over his female
partners:
(a) Towards the end of 2008, [22-]year-old, white, female[]
victim, B.M., entered into an intimate relationship with [Appellee].
After a few weeks into the relationship, [B.M.] indicated [Appellee]
would regularly lose his temper, scream at her, and assault her,
including strangulation. [B.M.] also would testify that when she
declined to have intercourse with [Appellee], that would enrage
him[,] and he would forcibly engage in sexual acts with her
anyway. [Appellee] threatened [B.M.] with a deadly weapon[]
and threatened to kill her immediate family members if she left —
even listing … the addresses of [B.M.’s] sister and other relatives.
[Appellee] installed locks on the doors that required a key to
unlock from the inside to leave — [Appellee] would keep these
keys on his person. [Appellee] would routinely block [B.M.’s] car
in[] the garage. [Appellee] took [B.M.’s] cell phone and would
only allow her to use it to text family and friends while under his
supervision. [B.M.] managed to escape [Appellee’s] residence
once, but was ultimately[] chased, tackled, and carried back into
[Appellee’s] residence. This abuse continued until March of 2009,
when [B.M.] escaped.
(b) In November of 2011, [Appellee] engaged in an intimate
relationship with a 38[-]year-old, white, female[] victim[,] A.S. A
few weeks into the relationship, [Appellee] began to regularly lose
his temper, scream at [A.S.], and assault her (including strangling
her). Specifically, if [A.S.] would disagree with [Appellee], he
would become angry and assault her. [Appellee] would physically
stop [A.S.] from leaving his residence — at one point [Appellee]
chased [A.S.] while she tried to escape, tackled her[,] and carried
her back into his residence. [Appellee] took [A.S.’s] cell phone to
limit her communication. [Appellee] threatened [A.S.] with a
deadly weapon. [Appellee] threatened to kill [A.S.’s] children if
she did not do what [he] ordered. During one … assault[, A.S.]
was forced to go to the hospital after [Appellee] assaulted her[.
W]hile at the hospital[, Appellee] would not leave [A.S.] alone,
and continually threatened her until she made up a story about
how she was injured.
(c) On December 29, 2017, [Appellee] was in an intimate
relationship with a 36-year-old, white, female[] victim, A.B.
[Appellee] saw photos of [A.B.’s] husband on her computer so
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[he] became angry and assaulted her. [Appellee] strangled [A.B.]
until she became unconscious. The next day[, A.B.] could not call
police because [Appellee] followed her around until she was able
to escape on December 30, 2017, by running to a neighbor’s
house. Leading up to this incident, the local police routinely would
be dispatched to [Appellee’s] residence for similar instances.
Commonwealth’s Brief at 10-11 (citing Motion in Limine, 12/16/21, at ¶ 5)
(brackets in original omitted).
The Commonwealth explained in its motion in limine that the testimony
from Appellee’s prior victims would establish a common plan or scheme:
The common scheme or plan is evidenced by [Appellee’s] choosing
to engage in the same specific assaultive action to exercise his
power and control over his victims when a disagreement between
the parties occurs. [Appellee] chooses white, female victims,
under 40-years-old. [Appellee] strangles each of his victims.
[Appellee] beats all of his victims. [Appellee] cuts off the victims’
communication to the outside. [Appellee] restricts the victims’
movement. [Appellee] monitors all his victims. All these unique
signatures, in the specific way he chooses to execute them, all
show a common scheme or plan[] to control his intimate partners.
Furthermore, [Appellee] continues to execute the same common
scheme or plan because he knows it worked on prior occasions.
…
The prior bad acts the Commonwealth seeks to introduce in the
instant case also go to the motive and intent of [Appellee] —
abusing an intimate partner to intimidate and maintain control
over her. [Appellee’s] prior bad acts … prove [Appellee] knew
the actions alleged in the instant case would successfully
reestablish dominance over the victim — again, going to motive
and intent. [Appellee’s] prior bad acts also prove [Appellee] could
not have mistaken his conduct in the course of his relationship to
be anything other than intentionally causing physical and mental
injury.
The probative value of evidence of such other crimes, wrongs, or
acts outweighs its potential for prejudice. Having the full context
of [Appellee’s] approach to intimate relationships is
extraordinarily probative in domestic violence cases and this case
largely comes down to [Appellee’s] credibility verses the [V]ictim’s
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credibility. See Commonwealth v. Gordon, 673 A.2d 866, 870
(Pa. 1996) (reversing the trial court’s decision to exclude prior bad
acts proving common scheme or plan as overly prejudicial, noting
“without doubt, the other crimes evidence would be prejudicial to
[the defendant]. That is what it is designed to be. On the facts
of this case, however, it is not unduly prejudicial, as it is required
for the Commonwealth’s case.”).
Id. at 12-13 (citing Motion in Limine at ¶¶ 7, 10-13) (emphasis in original;
some spacing altered; paragraph numbers omitted).
Conversely, Appellee argued that:
The Commonwealth’s identified common scheme or plan amounts
to little more than a recitation of the crimes for which [Appellee]
is charged. [The Commonwealth] accuse[s] him of exercising
power and control over him [sic] victims through physical
violence, including strangulation, threats of violence, as well as
restricting their movement and monitoring them. These
allegations are not the “unique signatures” which [the
Commonwealth] claim[s] them to be, but rather, would be
common to any other defendant charged with the same set of
crimes.
…
Importantly, in this case, these allegations by [Appellee’s] former
intimate partners are unproven. [Appellee’s] only conviction
relating to any of these women was an Alford plea[4] to a single
count of assault relating to [A.S.] A single count of assault does
not amount to the long-term kidnapping and abuse alleged for
which he is charged in this case, and an Alford plea does not
amount to an admission of guilt. This severely impacts the
probative value of these accusations.
Appellee’s Brief at 4 (citing Answer to Motion in Limine, 1/19/22, at ¶¶ 10,
20) (paragraph numbers omitted).
____________________________________________
4 North Carolina v. Alford, 400 U.S. 25 (1970). “[A] person entering an
Alford plea claims innocence, but consents to the imposition of a prison
sentence.” Commonwealth v. Pasture, 107 A.3d 21, 23 n.1 (Pa. 2014).
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Appellee further suggested:
Even if the other act evidence “would not be introduced for
propensity purposes, it should still be deemed inadmissible for risk
of undue prejudice.” Stressing the dated and unproven nature of
the former girlfriends’ accusations, the probative value of their
testimony “is substantially outweighed by the risk of undue
prejudice because the jury is likely to improperly use the
testimony for propensity purposes.” He also pointed out that
“admission of these accusations will have the effect of cramming
three additional min-trials [sic] into this one, and would force the
parties to litigate years-old accusations.”
Id. at 5 (citations to record and brackets in original omitted).
As the trial court explained in its Rule 1925(a) opinion, it denied the
Commonwealth’s motion in limine because it agrees with Appellee
that the probative value of the evidence is substantially outweighed by the
prejudicial nature of the evidence. It opined:
The [c]ourt’s overarching concern about the admission of the
[Commonwealth’s] proffered evidence is that it … mirrors
precisely the conduct charged against [Appellee] in this case and
it is emotionally charged evidence. The Commonwealth argues
that the evidence should be admissible because it qualified as one
of the exceptions to Rule 404(b). In this [c]ourt’s view, however,
this evidence is severely prejudicial propensity evidence. The real
impact this evidence will have is that it virtually implores the jury
to convict because [Appellee] allegedly committed virtually
identical acts against prior paramours. A jury will most certainly
view this evidence as propensity evidence. The jury will certainly
determine that [Appellee] acted in conformity with that evidence
when evaluating [Appellee’s] guilt rather than base its verdict on
the direct evidence of the case. One of the incidents occurred
approximately 12 years ago. The other incidents are dated as
well. Because the conduct of the prior incidents is so graphic and
virtually identical to the facts of the instant case, this [c]ourt does
not believe that a limiting instruction will cure the substantial
prejudice that will occur if this evidence is admitted at trial.
Accordingly, in this [c]ourt’s view, the probative value of this
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evidence is substantially outweighed by the severely prejudicial
nature of the evidence.
A second, important[] reason that this evidence should not be
admitted is the risk of confusion of issues. The jury will, in effect,
be put in a position to deliberate on four different cases, with four
alleged different victims, concerning what happened in each
episode of each of the four relationships. The risk of confusion of
issues is substantial.
TCO at 5-6.
On appeal, the Commonwealth claims that the trial court abused its
discretion in denying its motion in limine. It notes that the trial court found
the other-acts evidence to be relevant and probative here, yet the court
excluded the evidence over a concern with prejudice and possible confusion
for the jury. Commonwealth’s Brief at 23. In doing so, the Commonwealth
argues that the trial court failed to appreciate the mitigating effect of a jury
instruction, noting that “[t]he law presumes that the jury will follow the
instructions of the court. Absent evidence to the contrary, the jury is
presumed to have followed the trial court’s instructions.” Id. at 24 (quoting
Commonwealth v. Chiemel, 30 A.3d 1111, 1184 (Pa. 2011) (citations
omitted)). The Commonwealth proffers that the proper instruction could
prevent confusion for the jury and the need for the jury to deliberate on four
different cases. Id.Additionally, the Commonwealth claims that:
The trial court was overly concerned with how consensual sexual
relations at the start of each relationship established a unique
situation as to [the] variety of sexual activities that would be
tolerated or engaged in with approval, without giving due
deference to the similar pattern of strangulation, forced isolation,
threats to kill family members, threats with a deadly weapon, and
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total control of communication with the world outside of
[A]ppellee’s residence, which [A]ppellee imposed upon his
victims.
Id. In support of its argument, the Commonwealth points us to the following
excerpt from the notes of testimony of the March 28, 2022 hearing on its
motion in limine:
THE COURT: … So your side of the case is [Appellee] has the same
motive to treat this Victim the way [he] has treated other people?
[COMMONWEALTH]: That’s correct, Your Honor.
THE COURT: What is his motive?
[COMMONWEALTH]: Exercise power and control over his intimate
partner.
THE COURT: So, in order to do that, you have to proffer evidence
that that is something [Appellee] wants to do.
[COMMONWEALTH]: Yes, Judge.
THE COURT: And what is your evidence that he wants to exercise
power and control … over female intimate partners…?
…
[COMMONWEALTH]: The conduct in this case. He does things to
isolate his intimate partners. He does things to impose physical
pain, as well as mental constrictions.
THE COURT: Do you have any evidence from prior incidents that
he made statements to that effect? … That he made statements
that he wants to control them?
[COMMONWEALTH]: No.
THE COURT: Okay. Anything else under [Rule] 404(b)?
[COMMONWEALTH]: Common scheme and plan.
THE COURT: Why would you think that he has a common scheme
or plan in relation to these other people as opposed to he had prior
relationships, he treated people in a certain way in prior
relationship [sic]? What is the common plan that they are all
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connected? Is there anything that suggests that they are all
connected?
[COMMONWEALTH]: Yes, Judge. Again, these are the acts of a
domestic abuser. The way he engages in this conduct consistently
across all of his relationships is —
THE COURT: But what’s the common plan, scheme or design to –
let’s say, again, victim 1, prior relationship, victim 2, prior
relationship, what is the connection between 1 and 2, 2 and 3, 1
and 3? What is it that makes it a common plan, scheme or design?
[COMMONWEALTH]: He knows what he can get from each
intimate partner as a submissive as he continues to do this
relationship to relationship. That’s how they are all linked. One
builds on the other, Judge. He is building on past experience to
engage in the same conduct again, and then to do it more
effectively.
THE COURT: Any other category?
[COMMONWEALTH]: I think to that same end, knowledge comes
to mind where he knows this conduct was [sic] worked in the past
to keep his survivors, victims, former intimate partners quiet or
to not cooperate with authorities or to do his every will and
whimsy. And the final category, Judge, that I have included in my
motion would be an absence of mistake, specifically as it relates
to —
THE COURT: Let me just stop you there, and I don’t want to get
too deep into this. But isn’t the sexual conduct between two
consenting people and second people unique to that relationship?
[COMMONWEALTH]: I don’t understand the question.
THE COURT: You said earlier that there was consensual conduct;
did you not?
[COMMONWEALTH]: Yes, over the course of the conduct entirely,
yes.
THE COURT: So, again, I don’t get too factual about it, but let’s
just assume the month of June of a given year, the first day of …
their physical relationship was totally consensual. A little later,
things are still consensual. In between that, events occur that
you contend were not consensual. But that one might otherwise
look at that conduct and say it could have been consensual since
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the first one was and that last one; as opposed to somebody grabs
somebody from behind and physically assaults them every single
time. There is no consensual issue. Once you get into consensual,
isn’t it unique to that relationship? What people agree to between
them and what they —
[COMMONWEALTH]: I don’t think I can agree with that, Your
Honor. It’s subjective.
THE COURT: It is subjective. That’s my point. It’s not common
plan. These two agree that this high is the limit, and anything
other than that is not consensual. These two people say this high
is the limit. There might be some commonality at the very top of
each of these relationships, but they are very unique in it [sic] of
themselves; aren’t they?
[COMMONWEALTH]: Yes, to a point. So, my point is each — it’s
subjective insofar that each relationship is unique. I appreciate
that. But what is objective is at some point, if somebody tells you
no, and you continue to do something anyway, in this case as
alleged, anal sex, that is no longer consensual. That is across the
board with any relationship.
…
THE COURT: I am having trouble…. I haven’t excluded anything
you’re proffering, but I am … having trouble accepting it at face
value to the extent that … because once you concede that there
was consensual sexual conduct in relationships, variations on the
theme are problematic, in my view. If you put victim 1 — let’s
say going back in time, again, I am using three. … So, if you go
to victim 1 and that person says that he did this and I objected,
but he did it anyway, it seems to me the nature of — if there is
consensual conduct and how closely does the first case match the
given case? How closely does the second case match the given
case, as to make it 404(b)? … That’s the trouble with this.
[COMMONWEALTH]: I went into specific facts in Paragraph 5 of
our brief. A few of them are unique, so I will state them on the
record. All victim[s are] white females in intimate relationships
with [Appellee].
THE COURT: Let me stop you. What does race have anything to
do with it?
[COMMONWEALTH]: I appreciate that, Judge. If it was an
independent fact that I am solely relying on, I agree it would be
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irrelevant, but in viewing these motions, their totality of the
circumstances, and it is an additional fact that makes it consistent
across his victimology. That is also something else I have to say
after I go through the specifics of each of these cases. But in each
case, [Appellee] is limiting their access to people outside of his
residence. He is monitoring their communications or is blocking
their access to them for people outside of the home. He uses
assaults, threats and strangulation throughout each of these.
There are some additional specific facts that relate to each of the
victims that are unanimous throughout all of them, but are
consistent with this case. One, a deadly weapon is threatened, as
in this case. On two of these, … the victim’s family [is threatened]
if they were to leave him or call police, as in this case. In one
instance, … the victim had been tackled and carried back into
[Appellee’s] residence when she ran out. In another case, … the
victim ran to the neighbor’s house for her to finally call police.
And in this case, … the Victim had to leave two separate notes in
public places — in the women’s bathroom, where [Appellee] did
not follow her in before she could finally break free. I think these
are quite unique sets of facts.
…
THE COURT: I am having trouble with this…. I think it’s
dangerously close to propensity. You could say, he is … a person
who treats women badly. Every time he gets into a relationship
with a woman, he treats her badly. He is disrespectful. He is
abusive. He calls her names, whatever. That sounds like
propensity, not anything else.
Id. at 14-20 (quoting N.T., 3/28/22, at 18-27, 30-31) (cleaned up).
In its appellate brief, the Commonwealth clarifies:
The pattern sought to be established is not so much one of sexual
attack or proclivity for certain deviant sexual conduct as it is
complete control and domination of a female partner and daily
infliction of physical and psychological abuse in order to reduce
her to an abject object stripped of any courage to protest or
disclose the indignities and violence inflicted by [A]ppellee.
Id. at 24.
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Moreover, the Commonwealth argues that because the uncorroborated
testimony of the Victim in the present case might reasonably lead the jury to
determine that there was a reasonable doubt as to whether Appellee
committed the crimes charged, the other-acts evidence is necessary for the
prosecution of this case and, thus, the trial court abused its discretion in
denying the Commonwealth’s motion. Id. at 28 (citing Gordon, 673 A.2d at
869-70 (Pa. 1996) (determining that the trial court abused its discretion in
denying the Commonwealth’s motion for admission of other-crimes evidence
where such evidence was relevant to prove motive, intent, absence of mistake
or accident, and a common scheme or plan, and such evidence would not be
unduly prejudicial to the defendant)). We agree with the Commonwealth.
As we stated in Commonwealth v. Cosby, 224 A.3d 372 (Pa. Super.
2019), reversed on other grounds, Commonwealth v. Cosby, 252 A.3d 1092(Pa. 2021):
A determination of admissibility under the common
plan/scheme/design exception
must be made on a case[-]by[-]case basis in accordance
with the unique facts and circumstances of each case.
However, we recognize that in each case, the trial court is
bound to follow the same controlling, albeit general,
principles of law. 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
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typically chosen by the perpetrator. Given this initial
determination, the court is bound to engage in a careful
balancing test to assure that the common plan evidence is
not too remote in time to be probative. If the evidence
reveals that the details of each criminal incident are nearly
identical, the fact that the incidents are separated by a lapse
of time will not likely prevent the offer of the evidence unless
the time lapse is excessive.
Id. at 398 (quoting Commonwealth v. Frank, 577 A.2d 609, 614 (Pa. Super.
1990) (emphasis added).
Of course, we further recognize
the courts must make sure that evidence of such circumstances
have some relevance to the case and are not offered solely to
inflame the jury or arouse prejudice against the defendant. The
court is not, however, required to sanitize the trial to eliminate all
unpleasant facts from the jury’s consideration where those facts
are relevant to the issues at hand and form part of the history and
natural development of the events and offenses for which the
defendant is charged….
Commonwealth v. Bidwell, 195 A.3d 610, 617 (Pa. Super. 2018) (quoting
Commonwealth v. Lark, 543 A.2d 491, 501 (Pa. 1988) (emphasis added)).
In the case sub judice, the record reveals the following similarities
between the underlying charged crimes in the present matter and the prior
bad acts proffered by the Commonwealth. In each case, Appellee was
involved in an intimate relationship with the victim. All the victims were white
females, under the age of forty. In each instance, Appellee became angry
with the victims at some point, and then began physically and/or sexually
assaulting them. Appellee strangled each of his victims. He cut off their
communication to the outside world, restricted their movement, and closely
monitored them. In all but one case, Appellee threatened the victim with a
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deadly weapon and threatened to kill her family if she did not do what he
wanted.
In determining the admissibility of the evidence regarding Appellee’s
prior relationships, we are guided by our Supreme Court’s decision in
Arrington, supra, in which the Commonwealth similarly sought to introduce
evidence of prior bad acts committed by the defendant against three other
girlfriends “for the … purpose of proving a common scheme to control
girlfriends through violence and intimidation.” Arrington, 86 A.3d at 842.
The testimony concerning Arrington’s treatment of other girlfriends
[d]emonstrated repeated efforts to preserve intimate
relationships through harassment, intimidation, and physical
violence culminating in the use of a deadly weapon. In each
instance, [Arrington]: (1) monitored his girlfriend’s daily
activities; (2) resorted to violence when his partner wanted to end
a relationship or interacted with other men; (3) inflicted head or
neck injuries with his fist, a handgun, or an edged weapon; and
(4) harmed or threatened to harm members of his girlfriend’s
family or male acquaintances that he viewed as romantic rivals.
Id. (footnote omitted).
In Arrington, the trial court allowed the admission of the
Commonwealth’s Rule 404(b)(2) evidence and — after being convicted, inter
alia, of first-degree murder and sentenced to death — Arrington appealed,
arguing that the trial court abused its discretion in admitting evidence of his
other crimes. Id. at 840-41. See also id. at 842 (Arrington’s claiming that
“[t]hese matters were completely irrelevant and served only to inflame the
passions of the jury”). On direct appeal, the Court determined that “the
aforementioned evidence was not introduced in an attempt to portray
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[Arrington] as a habitual criminal with a propensity for violent behavior[,]” but
rather, “to establish that [he] acted pursuant to a common plan or scheme.”
Id. at 844. “Given the shared characteristics of each relationship,” the Court
concluded that the evidence fell within the purview of Rule 404(b)(2), and that
Arrington’s claim failed. Id. at 844-45.
We are further guided by Commonwealth v. Hicks, 156 A.3d 1114(Pa. 2017), in which our Supreme Court acknowledged that it “has long
recognized an exception to the general inadmissibility of other crimes evidence
where there is a striking similarity — or logical connection — between the
proffered prior bad acts and the underlying charged crimes.” Id. at 1125. In
explaining the logical connection standard, the Court noted, “much more is
demanded than the mere repeated commission of crimes of the same class,
such as repeated burglaries or thefts. The device used must be so unusual or
distinctive as to be like a signature.” Id. at 1125-26 (citation omitted). The
Hicks Court determined that evidence regarding the appellant’s prior
relationships with, and assaults upon, other women was “strikingly similar” to
the circumstances surrounding his relationship with the victim, her injuries,
and her subsequent death, such that there was a logical connection between
them for the purpose of a common plan or scheme where:
In each case [the] appellant: (1) was introduced to drug-
dependent women of similar body types for purposes of using
drugs; (2) showed a sexual interest in the women, sometimes
involving prostitution; (3) resorted to violence when the women
behaved in a way he found disagreeable; (4) inflicted injuries on
each woman by targeting her neck area with his hands, a sharp[-
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]edged object, or both; and (5) verbally threatened to kill each
woman.
Id. at 1127 (footnote omitted). It explained that these similarities “are not
mere insignificant details of crimes of the same class, where there is nothing
distinctive to separate them from, for example, common street crimes.” Id.
at 1128. See also id. (noting that these similarities constitute “a ‘virtual
signature’ for purposes of proving common scheme, intent and identity”).
Having concluded that a logical connection existed between the other
crimes and the underlying charged crime, the Hicks Court stated that it must
next determine whether the probative value of the evidence outweighed any
unfair prejudice. Id. (citations omitted). “Obviously, the impact of
introducing evidence of other crimes is significant and may be highly
prejudicial. However, such evidence is also highly probative when the
Commonwealth’s case is otherwise based largely on circumstantial evidence.”
Id. (internal citations omitted). The Hicks Court deemed the evidence
regarding the appellant’s assaults on other women to be “relevant and
probative to show lack of accident, and that [the] appellant acted intentionally
in all instances with a common scheme: violently attacking a woman with
whom he engaged in drug use and sex, in the neck, after a disagreement.”
Id. at 1129. Moreover, it stated, “the trial court’s detailed instructions
properly informed the jury of the limited and narrow purpose for which the
evidence was admitted and thus restricted any unfair prejudicial effect.” Id.
(citing Arrington, 86 A.3d at 845 (comprehensive limiting instructions to be
considered when balancing probative value and prejudicial impact);
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Boczkowski, 846 A.2d at 89 (limiting instructions weigh in favor of upholding
admission of other bad acts evidence)). Accordingly, the Hicks Court
concluded that the trial court did not abuse its discretion in admitting Rule
404(b)(2) evidence regarding other crimes, wrongs or acts by the appellant.
Id.
Applying the foregoing case law to the instant matter and taking into
consideration Appellee’s habits and patterns of behavior, as well as the
characteristics of his chosen victims, we believe that the similar, relevant
details surrounding each incident demonstrate criminal conduct on the part of
Appellee that is sufficiently distinctive so as to establish that he engaged in a
common plan or scheme. See Hicks, supra; Arrington, supra; Cosby,
supra. See also Tyson, 119 A.3d at 360 n.3 (“The common scheme
exception does not require that the … scenarios be identical in every
respect.”); Cosby, 224 A.3d at 402 (“It is the pattern itself, and not the mere
presence of some inconsistencies between the various assaults, that
determines admissibility under [the Rule 404(b)(2)] exceptions.”). The
evidence demonstrates that Appellee acted with a common scheme to control
and dominate his female, intimate partners through fear and intimidation,
isolating them from communication with family and friends, restricting their
movements, and inflicting violence — including strangulation.
As such, we reject Appellee’s argument that the allegations made by his
prior victims “would be common to any other defendant charged with the
same set of crimes.” Appellee’s Brief at 4. See Tyson, 119 A.3d at 360
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(concluding that evidence of the appellee’s sexually assaulting two different
women was not “generically common to many sexual assault cases” but,
rather reflected “a clear pattern where [the a]ppellee was legitimately in each
victim’s home; [the a]ppellee was cognizant of each victim’s compromised
state; and [the a]ppellee had vaginal intercourse with each victim in her
bedroom in the middle of the night while the victim was unconscious”); but
see Bidwell, 195 A.3d at 618, 626-27 (affirming the trial court’s denial of the
Commonwealth’s motion in limine seeking to introduce evidence of the
defendant’s prior violent behavior toward other women on the grounds that
“it was improper propensity evidence of [the defendant’s] prior, dissimilar
assaults on other women[,]” where the other women’s testimony did not
“evidence any particular distinctive pattern of behavior by [the defendant])”
(emphasis added).5
____________________________________________
5 The defendant/appellee in Bidwell was charged with criminal homicide of a
woman with whom he had been involved in a sexual relationship for
approximately one year prior to her death. In upholding the trial court’s
exclusion of evidence of Bidwell’s prior bad acts toward four other women, the
Bidwell Court reasoned that:
The Commonwealth’s evidence failed to show that each woman
was assaulted in the same manner or had been involved in a
sexual relationship with [Bidwell,] or that [Bidwell] was under the
influence of alcohol or drugs at the time of [each of] the
encounters with the women. To the contrary, the women’s
testimony establishes, at most, the commission of crimes or
conduct in the past “of the same general class,” namely physical
and/or sexual assaults. Their testimony does not evidence any
particular distinctive pattern of behavior by [Bidwell] in that
[Bidwell’s] allegedly abusive behavior appears to have been
(Footnote Continued Next Page)
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We further deem Appellee’s emphasis on the fact that the allegations of
his former intimate partners are “unproven” to be of no moment here. See
Appellee’s Brief at 4 (stating that this “severely impacts the probative value
of these accusations”). “Rule 404(b) is not limited to evidence of crimes that
have been proven beyond a reasonable doubt in court. It encompasses both
prior crimes and prior wrongs and acts, the latter of which, by their nature,
often lack ‘definitive proof.’” Commonwealth v. Lockcuff, 813 A.2d 857,
____________________________________________
triggered in each incident by different causes. For instance, it is
alleged that [Bidwell] assaulted his [two ex-]wives during the
course of their marriages, but he spontaneously attacked [another
woman] whom he had just met while she interviewed for a job.
[A fourth woman] indicated [Bidwell] did not physically accost her.
…
As the trial court found herein, the proposed testimony of [the
four other women] does not establish a pattern of conduct on the
part of [Bidwell] so distinctive that proof of one tends to prove the
others. Instead, the prior bad acts testimony demonstrates that
[Bidwell] was a domestic abuser of women, some of whom he was
involved in ongoing romantic relationships in the past, but it does
not show a unique “signature” modus operandi relevant to the
[v]ictim’s murder.
Bidwell, 195 A.3d at 626-27. Unlike Bidwell, the Commonwealth’s evidence
in the instant matter establishes a distinctive pattern of behavior by Appellee,
in that after beginning a consensual intimate relationship with each of the
women, he became angry with them and began assaulting them; he strangled
each of them; he restricted their movement and cut off their communication
with friends and family; and in all but one case, he threatened to kill the
woman’s family. See Cosby, 224 A.3d at 404 (concluding that prior bad acts
evidence “established a distinct, signature pattern[ where the a]ppellant
presented himself as a mentor or potential mentor to much younger women
in order to establish trust, and then he abused that trust by drugging those
women in order to sexually assault them”); Id. (“This constitutes far more
distinctive behavior than the [prior bad acts] evidence of prior domestic abuse
considered by the Bidwell Court.”).
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861 (Pa. Super. 2002) (emphasis in original). Essentially, Appellee’s
argument goes to the weight accorded to the evidence — not to its
admissibility — a decision which is clearly left to the fact-finder. See id.
(noting that the appellee would be free to cross-examine the other-acts
witness on the facts surrounding her allegations and her memory of the
incident).
Additionally, we do not deem the other-acts evidence so remote in time
as to negate its probative value. The Commonwealth seeks to introduce
evidence from incidents that occurred in 2008, 2011, and 2017, and in the
present matter, 2021. Thus, although the total time span is fourteen years,
the time in between each incident is not more than six years. This Court has
held evidence admissible under the common scheme exception in the context
of even longer time lapses. See Commonwealth v. Aikens, 990 A.2d 1181,
1185 (Pa. Super. 2010) (determining that a ten-year lapse was not
excessive); Commonwealth v. Luktisch, 680 A.2d 877 (Pa. Super. 1996)
(declaring that a six-year time lapse was not excessive). Moreover, the
similarities of the prior bad acts with the instant matter render the time gap
between incidents even less important.6 See Tyson, 119 A.3d at 359
____________________________________________
6 The trial court acknowledges that the alleged conduct of Appellee in the prior
incidents is “virtually identical” to that alleged in the present case. See TCO
at 5 (noting “the conduct of the prior incidents is so graphic and virtually
identical to the facts of the instant case”). See also id. (stating that the
evidence proffered by the Commonwealth regarding the prior victims “mirrors
precisely the conduct charged against [Appellee] in this case”).
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(“Although remoteness in time is a factor to be considered in determining the
probative value of other crimes evidence under the theory of common scheme,
plan or design, the importance of the time period is inversely proportional to
the similarity of the crimes in question.”) (citations and internal quotation
marks omitted). See also id. at 361 (recognizing that the time gap between
incidents is only one factor in the common scheme analysis, but not the
dispositive factor).
Finally, while we recognize that the other-acts evidence would be
prejudicial to Appellee, on the facts of this case, we do not believe it would be
unduly prejudicial, as it is vital to the Commonwealth’s case. See Gordon,
673 A.2d at 870 (concluding that the other crimes evidence would not be
unduly prejudicial where such evidence was required for the Commonwealth’s
case). See also id. (“[S]ince the uncorroborated testimony of the alleged
victim in this case might reasonably lead a jury to determine that there was a
reasonable doubt as to whether Gordon committed the crime charged, it is
fair to conclude that the other crimes evidence is necessary for the prosecution
of the case.”); Commonwealth’s Brief at 28 (stating that its case is largely
based on the uncorroborated testimony of the Victim). We agree with the
Commonwealth that the prejudicial effect of allowing the Rule 404(b)(2)
evidence can be mitigated by the trial court’s issuing cautionary instructions
to the jury. See Hicks, 156 A.3d at 1129 (declaring that the prejudicial effect
of the Commonwealth’s Rule 404(b) evidence was properly limited by the trial
court’s cautionary instructions to the jury); Boczkowski, 846 A.2d at 89
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(recognizing that limiting instructions weigh in favor of upholding admission
of other bad acts evidence); Commonwealth v. LaCava, 666 A.2d 221, 228
(Pa. 1995) (presuming that jurors will follow the court’s instructions).
Based on the foregoing, we conclude that the Commonwealth has met
its burden of establishing that the testimony of Appellee’s former, intimate
partners is relevant to proving a common scheme or plan and that the
probative value of this evidence outweighs any potential for prejudice.
Accordingly, we reverse the trial court’s April 20, 2022 order denying the
Commonwealth’s motion in limine and remand for further proceedings.
Order reversed. Case remanded. Jurisdiction relinquished.
12/29/2023
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