Com. v. Ivy, G. , 146 A.3d 241 ( 2016 )

J-S37023-16
2016 PA Super 183COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
GLAVIN JUSTAN IVY,
Appellee No. 1485 WDA 2015
Appeal from the Order Entered September 10, 2015
In the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0001780-2014
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GLAVIN JUSTAN IVY,
Appellant No. 1575 WDA 2015
Appeal from the Order Entered September 10, 2015
In the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0001780-2014
BEFORE: GANTMAN, P.J., SHOGAN and LAZARUS, JJ.
OPINION BY SHOGAN, J.: FILED AUGUST 19, 2016
Appellant, the Commonwealth of Pennsylvania, appeals from the
September 10, 2015 pretrial order precluding the admission of evidence in
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the impending trial of Appellee, Glavin Justan Ivy, who has filed a cross
appeal.1 The order appealed granted in part and denied in part the
Commonwealth’s motion in limine seeking to introduce prior bad acts of
Appellee pursuant to Pa.R.E. 404(b).2 Following our careful review and for
the reasons that follow, we reverse in part and remand. We quash
Appellee’s cross-appeal.
In its opinion pursuant to Pa.R.A.P. 1925(a) (“Rule 1925 Opinion”), the
trial court summarized the facts and procedural history of the case as
follows:
Glavin Justan Ivy ([“Appellee”]) has been charged with
Rape, 18 Pa.C.S. § 3121(a)(1), Kidnapping, 18 Pa.C.S.
§ 2901(a)(3), and Aggravated Assault, 18 Pa.C.S. § 2702(a)(1)
for an alleged violent sexual assault incident that occurred
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1
The Commonwealth filed the initial appeal, and Appellee filed a cross
appeal. On November 19, 2015, this Court, sua sponte, consolidated the
appeals and directed the parties to proceed in accordance with Pa.R.A.P.
2136. For ease of disposition, we reference the Commonwealth as the
appellant and the defendant as Appellee.
2
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 its prosecution.
Commonwealth v. Whitlock, 69 A.3d 635, 636 n.2 (Pa. Super. 2013)
(citing Pa.R.A.P. 311(d)). Moreover, the Commonwealth may appeal the
grant of a defense motion in limine which excludes Commonwealth evidence
and has the effect of substantially handicapping the prosecution.
Commonwealth v. Gordon, 673 A.2d 866 (Pa. Super. 1996). Here, the
trial court ruling excluded Commonwealth evidence, and the Commonwealth
has certified that the rulings’ effect substantially handicaps the prosecution.
Thus, the appeal is properly before this Court. Commonwealth v. Belani,
101 A.3d 1156, 1157 n.1 (Pa. Super. 2014).
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November 18, 2014 through November 19, 2014. The victim in
this incident is [A.C.], age 30.
On November 19, 2014, [A.C.] reported to the Sharon
Police Department that she had met [Appellee] online using a
dating service called “Plenty of Fish” approximately one month
prior, at the end of October, 2014. The two of them began a
relationship via texting, and [A.C.] and [Appellee] first met in
person at [Appellee’s] apartment on November 7, 2014. After
that date, [A.C.] and [Appellee] continued to spend their
weekends together at [Appellee’s] apartment.
On November 18, [2014, A.C.] received a number of
messages via Facebook Instant Messenger[3] wherein [Appellee]
“dumped” [A.C.] because [Appellee] believe[d A.C.] lied about
when she had last seen another male. Throughout the
messages, [Appellee] calls [A.C.] a variety of derogatory names
and expresses his hopes that she kills herself in a myriad of
ways. [Appellee] also compares [A.C.] to his ex-girlfriend,
[C.D.], by saying that they are “sooo alike” and “they are the
same.” Throughout these messages, [A.C.] continually
apologizes for making [Appellee] upset, expresses her love for
[Appellee], and pleads to still be able to see him. Ultimately,
[A.C.] messages that she would like to go to [Appellee’s]
apartment to collect the pillow she left there.
[A.C.] arrived at [Appellee’s] apartment at approximately
6:42 p.m., and [Appellee] simply opened the apartment door,
threw the pillow out to [A.C.], and then shut the door. As [A.C.]
walked away, [Appellee] then re-opened the apartment door,
held out his arms as if indicating that he wanted a hug, and
asked [A.C.] to come upstairs to his bedroom. Once in the
bedroom, [Appellee] began questioning [A.C.] about all of her
previous sexual partners. [Appellee] also began calling her a
“stupid bitch,” among other names.
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3
Instant Messenger “refers to a type of Internet service that enables users
to engage in real-time dialogue ‘by typing messages to one another that
appear almost immediately on the others’ computer screens.’”
Commonwealth v. Reed, 9 A.3d 1138, 1140 n.2 (Pa. 2010) (citing United
States v. Meek, 366 F.3d 705, 709 n.1 (9th Cir. 2004)).
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At one point, [Appellee] motioned as if to kick [A.C.];
[A.C.] dodged and attempted to get out of the room through the
bedroom door. [Appellee] blocked her access to the door and
told her that she was not going to leave. [Appellee] then pushed
[A.C.] onto the bed with the palm of his hand and told her to sit
against the wall, which she did. [Appellee], while still calling her
names, then struck [A.C.] on the right side of the face using the
back of his hand. He did so with enough force to turn her head
and cause the left side of her face to strike part of the window.
[Appellee] then backhanded her again in the nose. [Appellee]
then grabbed [A.C.] by the throat with such force that he was
able to pick her torso up off of the bed. [A.C.] was unable to
breathe and could not remember if she lost consciousness,
although she could recall begging [Appellee] to stop, but stated
it was very hard to talk. [Appellee’s] use of force caused
bruising on [A.C.’s] neck.
When [Appellee] let [A.C.] go, he grabbed her hair with
both hands and started to pull her hair. [A.C.] began to cry,
which in turn made [Appellee] cry. He then began hugging
[A.C.], saying[,] “you broke my heart, so I had to teach you a
lesson not to lie to me again.” [A.C.] told [Appellee] several
additional times that she wanted to leave. [Appellee] refused
these requests, and [A.C.] again attempted to leave at one
point, but [Appellee] jumped in front of the door and would not
let her pass. For an unknown period of time, [Appellee] and
[A.C.] laid in [Appellee] bed talking, and [Appellee] asked [A.C.]
if she wanted to have sex. [A.C.] agreed to have sex, but only
did so because she was afraid [Appellee] would assault her again
or force himself on her if she refused. Afterwards, [A.C.] was
permitted to use the restroom, but [Appellee] accompanied her
the entire time.
Ultimately, [Appellee] agreed to let [A.C.] leave at
approximately 3:00 a.m. on November 19[, 2014,] so that she
could go to work. Later that day, after [A.C.] discontinued all
messaging with [Appellee, Appellee] messaged her on Facebook
stating that he had recorded them having sex using his cellular
phone and threatened to send the recording to everyone they
knew. [A.C.] reported to police late on November 19[, 2014,]
everything that happened. On November 20, [2014, Appellee]
was taken into custody by Sharon police officers. [Appellee] was
Mirandized, waived his Miranda rights, and made a statement to
Lieutenant [Jeffrey] Wiscott of the Sharon Police Department. In
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his statement, [Appellee] admitted to a disagreement between
[Appellee] and [A.C.], and further admitted to having sexual
intercourse, but attributed the bruising on [A.C.’s] neck to
consensual “rough sex.”
Also relevant to this Opinion is the relationship between
[Appellee] and two prior women; [M.F.] and [C.D.]. Regarding
[M.F.], she filed for and received a temporary and permanent
restraining order against [Appellee] in 2013 in Morton County,
North Dakota. In the sworn petition forming the basis for the
restraining order, [M.F.] described several accounts of abuse
that occurred during her relationship with [Appellee], stating
that [Appellee] had been “hitting her hard on a daily basis.” She
also explained that she was afraid to leave [Appellee] for fear
that he would kill her, and she described several incidents where
[Appellee] regularly beat her in the face, dragged her by her
hair, hit her very hard, and bragged that he knew how to strike
her without leaving marks.
[M.F.] and [Appellee’s] abusive relationship culminated in
a violent attack inside of [Appellee’s] vehicle on May 22, 2013.
On that occasion, [Appellee] coaxed [M.F.] to get into a car with
him by promising to drive her to a store in town. Instead of
taking [M.F.] to the store, [Appellee] turned off onto a country
road, began beating her while driving erratically at 90 miles per
hour, stating that he was going to take her into the woods and
“beat her up then kill [her],” that “no one would hear her
scream,” and that “no one would find her.” [M.F.] escaped by
slipping into the back seat, sticking her hand out of the window,
and capturing the attention of a passing van. The driver of the
van observed [Appellee] continuing to struggle with [M.F.] in the
car.
Police responded several minutes later, which caused
[Appellee] to cease his attack. [M.F.] filed charges and received
the above-mentioned restraining orders. [Appellee] was
convicted of Menacing, a Class A Misdemeanor, and Reckless
Driving, a Class B Misdemeanor, in Morton County, North
Dakota. During the course of the investigation, the Facebook
account of [Appellee] was obtained, and it revealed that
[Appellee] joined a group on Facebook called[, “]Physiognomy,”
which is the study or art of identifying the personality and inner-
character traits of another, simply by examining the physical
features of a person’s face.
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Regarding [C.D., C.D.] knew [Appellee] for four months
before she began dating him on March 8, 2014. Shortly into the
relationship, on March 13, 2014, there was a dialogue
exchanged on Facebook Instant Messenger where [Appellee] and
[C.D.] got into an argument because [Appellee] claimed that he
was going to “re-wire [C.D.] for the better” because “he had the
power.” [Appellee] also sent numerous messages during this
exchange where he insulted [C.D.’s] intelligence and professed
that [Appellee] is a genius who has a close connection with God.
During the messages, [C.D.] (similar to [A.C.]) goes on to tell
[Appellee] that she loves him and that she cares for him, trying
to resolve the argument.
On April 10, 2014, [Appellee] and [C.D.] went swing
dancing in Ohio. On the drive home, [C.D.] was driving and
[Appellee] was sitting in the front passenger seat. [Appellee]
began to display jealousy over the men that [C.D.] danced with
while swing dancing. [Appellee] then began to verbally berate
[C.D.], calling her a “whore,” “slut,” and “bitch,” and [Appellee]
threatened to ruin [C.D.’s] reputation by telling everyone [C.D.]
knew that she was a “whore.” [Appellee] then grabbed the
steering wheel of the vehicle and attempted to steer the car off
the road and into the woods. [C.D.] was [able] to apply the
brakes to avoid any collision. After the car came to a stop,
[Appellee] slammed [C.D.’s] head against the window of the
vehicle, and grabbed [C.D.’s] knife, which she kept on her
person for protection. [C.D.] eventually disarmed [Appellee], did
not call the police, and ultimately continued her relationship with
[Appellee].
On the drive home, [C.D.] used her cell phone to record
the conversation immediately after the assault, wherein
[Appellee] and [C.D.] discussed the event, and [Appellee] made
several concessions that he had hurt [C.D.]. The incident was
also discussed via text messages the following day, wherein
[Appellee] made reference to the incident by telling [C.D.] that
he “was poisoned” and “a snake made him do it.” On the same
day on Facebook Instant Messenger, [Appellee] further
expressed to [C.D.] that “this has been the saddest day of my
life.” Ultimately, as a result of the incident, [C.D.] made a
medical appointment with a chiropractor because her rib became
dislocated during her struggle with [Appellee].
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Over the next month, there were approximately six or
seven occasions between April 10, 2014 and May 9, 2014, where
[Appellee] would lock [C.D.] in his room, refuse to let her leave,
take away her keys and phone, and even barricade the door.
When this occurred, [Appellee] would physically abuse [C.D.] by
punching her; slapping her; choking her; refusing her food and
water; drugging her; threatening to kill her, her sister, and
family; threatening to burn down her house; and otherwise
refusing to let her leave until she had sexual intercourse with
him. There were also instances where [Appellee] would drag
[C.D.] by her hair while he was physically assaulting her, and
[Appellee] claimed to put spyware in [C.D.’s] computer and a
GPS tracker on her phone so that he could “watch her” and
“keep track of her.” Similar to the situation with [A.C.], if [C.D.]
had to use the bathroom, [Appellee] would accompany her.
As a result of [Appellee’s] constant abuse, [C.D.] was in
fear for her safety if she refused [Appellee’s] request for sex.
She received a temporary and permanent Protection from Abuse
Order against [Appellee] in Mercer County, Pennsylvania. This
Order was violated twice by [Appellee]: once when he compelled
[A.C.] to contact [C.D.] on [Appellee’s] behalf around
November 15, 2015, and once when [Appellee] called [C.D.’s]
place of work over 50 times in a day. The calling incident also
led to a Harassment conviction for [Appellee]. As a result of
[A.C.] communicating with [C.D.] in November of 2014, [A.C.]
learned of the prior instances of abuse between [Appellee] and
[C.D.], including the fact that [Appellee] had locked [C.D.] in his
apartment at times.
Rule 1925 Opinion, 11/13/15, at 2–8 (footnote omitted).
On June 26, 2015, Appellee filed a motion in limine “for Exclusion of
Evidence at Jury Trial,” which the trial court granted in part and denied in
part on July 31, 2015. Also on June 26, 2015, Appellee filed a motion “to
Offer Evidence of the Complainant’s Past Consensual Sexual Conduct and
Non-Sexual Conduct with Defendant,” which the trial court granted on
July 6, 2015. Neither of these orders is involved in this appeal.
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The Commonwealth on June 26, 2015, filed a Motion and Intent to
Introduce Evidence of Other Crimes Pursuant to Pa.R.E. 404(b)(2) (“Rule
404(b) Motion”). In pertinent part, that motion stated as follows:
97. In the instant case, the Commonwealth is seeking to use
the following prior bad acts of [Appellee] to show a common plan
scheme and design, intent and knowledge of criminal
wrongdoing, and the chain or sequence of events showing the
complete history of the case:
(a) Testimony and supporting evidence from [C.D.]
describing verbal, physical, and sexual abuse she
encountered at the hands of [Appellee] during their
two-month relationship. Supporting evidence
includes:
i. Facebook Instant Messenger
correspondence and text message
correspondence between [C.D.] and
[Appellee] between March, 2014 and
May, 2014.
ii. An audio recording of a
conversation between [C.D.] and
[Appellee] on April 11, 2014, in the state
of Ohio.
[iii.] Medical records from [C.D.’s]
chiropractor reflecting dates of
appointments wherein she had her rib
treated, which corresponds with dates of
physical abuse: April 11, 2014 and April
22, 2014.
(b) A certified copy of [C.D.’s] Protection From
Abuse Order granted on May 20, 2014.
(c) Certified copies of [Appellee’s] two violations of
[C.D.’s] Protection From Abuse Order, which reflect
convictions on August 13, 2014 and March 26, 2015.
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(d) A certified copy of [M.F.’s] Temporary Disorderly
Conduct Restraining Order granted in Morton County,
North Dakota, on May 24, 2013, and a photographed
copy taken by [C.D.].
(e) A certified copy of [M.F.’s] Permanent Disorderly
Conduct Restraining Order granted in Morton County,
North Dakota, on June 3, 2013.
(f) A certified copy of the sworn petition and
contents therein drafted by [M.F.] on May 24, 2013,
used to obtain her restraining order, and the
photographed copy taken by [C.D.].
(g) A certified copy of [Appellee’s] Menacing and
Reckless Driving conviction from July 1, 2013.
(h) A certified copy of [A.C.’s] Protection From
Abuse Order granted on December 16, 2014.
(i) A certified copy of [Appellee’s] violation of
[A.C.’s] Protection From Abuse order, reflecting a
conviction on January 14, 2015.
(j) A certified copy of [Appellee’s] Harassment
conviction from October 14, 2014.
Rule 404(b) Motion, 6/26/15, at 22–23 (footnote omitted).
On July 31, 2015, the trial court granted the Commonwealth’s Rule
404(b) Motion in part and denied it in part (“Commonwealth’s July 31, 2015
Order”). Specifically, the trial court denied admission of certified copies of
multiple orders against Appellee that were obtained pursuant to the
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Protection from Abuse (“PFA”) Act, 23 Pa.C.S. §§ 6101–6122 (“PFA Act”),4
and certified copies of Appellee’s violations of those PFA orders, while
permitting witness testimony about the bases of the PFA orders.
Commonwealth’s July 31, 2015 Order. The trial court’s order stated in full,
as follows:
AND NOW, this 31st day of July, 2015, upon consideration of the
Commonwealth’s Motion and Notice of Intent to Introduce
Evidence of Other Crimes Pursuant to Pa.R.E. 404(b)(2), IT IS
HEREBY ORDERED AS FOLLOWS:
1) Regarding the testimony and supporting
evidence from [C.D.] describing verbal,
physical, and sexual abuse she encountered at
the hands of [Appellee], the Commonwealth’s
motion is GRANTED. The Commonwealth may
introduce the evidence listed in paragraphs
97(a)(i) through 97(a)(iii) of the
aforementioned motion.
2) Regarding the certified copy of [C.D.’s]
Protection from Abuse Order granted on May
20, 2014, as well as certified copies of
[Appellee’s] two violations of [C.D.’s]
Protection from Abuse Order, the
Commonwealth’s motion is DENIED.
3) Regarding a certified copy of [M.F.’s]
Temporary Disorderly Conduct Restraining
Order, the certified copy of [M.F.’s] Permanent
Disorderly Conduct Restraining Order, and a
certified copy of the sworn petition and
contents therein drafted by [M.F.], all relating
to incidents happening in North Dakota in May
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4
The purpose of the PFA Act is to protect victims of domestic violence from
the perpetrators of that abuse. Commonwealth v. Ferko-Fox v. Fox, 68
A.3d 917, 921 (Pa. Super. 2013).
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of 2013, the Commonwealth’s motion is
DENIED.
4) Regarding a certified copy of [Appellee’s]
Menacing and Reckless Driving conviction from
July 1, 2013 in Ohio, the Commonwealth’s
motion is DENIED.
5) Regarding a certified copy of [A.C.’s]
Protection from Abuse Order, granted
December 16, 2014, as well as a certified copy
of [Appellee’s] violation of this Order, reflecting
a conviction on January 14, 2015, the
Commonwealth’s motion is DENIED.
6) Regarding a certified copy of [Appellee’s]
Harassment conviction from October 14, 2014,
the Commonwealth’s motion is DENIED.
Commonwealth’s July 31, 2015 Order, at unnumbered 1–2.
For purposes of clarity, we summarize the effect of that order:
• Regarding A.C., the victim in this case, the trial court denied:
o A certified copy of her PFA order against Appellee and Appellee’s
violation of that order.
• Regarding C.D.:
o The trial court denied:
A certified copy of her PFA order against Appellee;
Copies of Appellee’s two violations of that order;
Appellee’s past convictions for Menacing and Reckless Driving
from July 1, 2013 in Ohio;
Appellee’s past conviction for Harassment from October 14,
2014.
o The trial court permitted:
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Testimony from C.D.;
Facebook and text messages between C.D., A.C., and Appellee;
An audio recording of a conversation between C.D. and Appellee;
C.D.’s medical records from a chiropractor appointment following
an altercation between C.D. and Appellee.
• Regarding M.F., the trial court denied:
o Admission of certified copies of two restraining orders against
Appellee;
o A certified copy of a petition by M.F. in support of those orders.
On August 18, 2015, the trial court filed an opinion.
On August 27, 2015, the Commonwealth filed a “Motion to Reconsider
Court’s Order Dated July 31, 2015 and Opinion in Support of Order.” In
response, on August 31, 2015, the trial court granted reconsideration and
revoked the Commonwealth’s July 31, 2015 Order. Order, 8/31/15. On
September 10, 2015, the trial court reinstated the Commonwealth’s July 31,
2015 Order verbatim, and it is from that order that the Commonwealth
appeals and Appellee purports to cross-appeal. Order, 9/10/15. The
Commonwealth timely filed a notice of appeal on September 25, 2015. On
October 8, 2015, Appellee filed a cross-appeal from the September 10, 2015
order.
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In its brief, the Commonwealth raises the following issues for our
review:5
1. Whether a certified copy of a PFA order and a certified [copy]
of a violation thereof, sought and obtained by [A.C.], was
properly admissible pursuant to Pa.R.E. 404(b)?
2. Whether a certified copy of a Protection From Abuse (PFA)
Order and certified copies of two violations thereof, sought and
obtained by [C.D.], and/or testimony relating to the PFA Order
and violations, was properly admissible pursuant to Pa.R.E.
404(b)?
3. Whether certified copies of Restraining Orders sought and
obtained against [Appellee] by [M.F.], and a certified copy of the
petition and contents that served as the basis for those Orders,
was properly admissible pursuant to Pa.R.E. 404(b), and as an
exception to the hearsay rule?
Commonwealth’s Brief at 5. In his brief, Appellee responds to the
Commonwealth’s issues and raises the following single issue in his cross-
appeal:
Whether the trial court abused its discretion in failing to exclude
from trial evidence of alleged bad acts of Appellee allegedly
made against a different complainant because there was no
common scheme or plan established and the evidence of bad
acts was improper character evidence which was unfairly
prejudicial to Appellee’s presumption of innocence at trial?
Appellee’s Brief at 6.
Our standard of review of the denial or grant of a motion in limine is
well settled:
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5
We have renumbered the issues set forth in the Commonwealth’s brief to
comport with the order that the Commonwealth addresses them in its
argument.
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When ruling on a trial court’s decision to grant or deny a motion
in limine, we apply an evidentiary abuse of discretion standard of
review. The admission of evidence is committed to the sound
discretion of the trial court, and a trial court’s ruling regarding
the admission of evidence will not be disturbed on appeal unless
that ruling reflects manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support to be clearly
erroneous.
Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pa. Super. 2010).
As noted, the Commonwealth assails the exclusions from evidence as
described in the trial court’s September 10, 2015 order. We first address
whether the trial court erred or abused its discretion in denying the
Commonwealth’s presentation of certified copies of both A.C.’s PFA order
against Appellee and his violation of that order. In ruling on the
Commonwealth’s motion in limine, the trial court considered Pa.R.E. 403 and
404. Those rules provide as follows:
Rule 403. Excluding Relevant Evidence for Prejudice, Confusion,
Waste of Time, or Other Reasons
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. Pa.R.E. 404(b) provides, in pertinent part:
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
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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) Notice in a Criminal Case. In a criminal case the prosecutor
must provide reasonable notice in advance of trial, or during trial
if the court excuses pretrial notice on good cause shown, of the
general nature of any such evidence the prosecutor intends to
introduce at trial.
Pa.R.E. 404(b)(1–3).
The Commonwealth argues that the certified copies of A.C.’s PFA order
and Appellee’s subsequent violation thereof should be admitted under the
res gestae exception to Pa.R.E. 404(b) and to show Appellee’s consciousness
of guilt. Commonwealth’s Brief at 12. The trial court denied admission of
the PFA order and its violation by Appellee but acquiesced in permitting the
Commonwealth to establish their factual bases through witness testimony.
Rule 1925 Opinion, 11/13/15, at 13–14.
The Commonwealth asserts that there is no case law supporting the
trial court’s decision to preclude the actual orders and maintains that Pa.R.E.
404(b) jurisprudence should apply to permit their admission.
Commonwealth’s Brief at 12. Appellee responds that the trial court properly
concluded that the prejudicial effect of the PFA order and the PFA-violation
order outweighed their probative value. Appellee’s Brief at 12.
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While evidence of prior bad acts is not admissible to show criminal
propensity, evidence of other crimes may be admissible if it is relevant to
show some other legitimate purpose. Commonwealth v. Tyson, 119 A.3d
353, 358 (Pa. Super. 2015). An exception to Rule 404(b) exists that permits
the admission of evidence where it became part of the history of the case
and formed part of the natural development of facts. Commonwealth v.
Solano, 129 A.3d 1156, 1178 (Pa. 2015). This exception is commonly
referred to as the res gestae exception. Id. Where evidence of prior bad
acts is admitted, the defendant is entitled to a jury instruction that the
evidence is admissible only for a limited purpose. Id. (quoting
Commonwealth v. Hutchinson, 811 A.2d 556, 561 (2002)).
Evidence of prior bad acts may also be introduced to prove
consciousness of guilt, i.e., that the defendant was aware of his wrongdoing.
Commonwealth v. Pestinikas, 617 A.2d 1339, 1348 (Pa. Super. 1992).
Our Supreme Court has stated that PFA petitions are admissible and relevant
to demonstrate the continual nature of abuse and to show the defendant’s
motive, malice, intent, and ill-will toward the victim. Commonwealth v.
Drumheller, 808 A.2d 893, 905 (Pa. 2002).
In support of its argument that copies of A.C.’s PFA order and
Appellee’s violation thereof are admissible to prove Appellee’s consciousness
of guilt, the Commonwealth relies upon Commonwealth v. Flamer, 53
A.3d 82 (Pa. Super. 2012). Commonwealth’s Brief at 13. In Flamer, the
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defendant was arrested for murder, and the prosecution intended to call a
witness who was aware of the defendant’s murder plot. Flamer, 53 A.3d at
84. The witness was killed three months before the start of trial, and the
prosecution successfully sought to introduce evidence that the defendant
conspired with a third party to kill the witness. Id. at 86. This evidence was
admitted to show the history of the case and to prove the guilty conscience
of the defendant. Id. at 87. Herein, the Commonwealth avers that “[i]f
evidence of a defendant’s having conspired to kill a key witness against him
in a different murder case is admissible to prove consciousness of guilt,
then . . . [Appellee’s] violation of a PFA order in an attempt to persuade A.C.
not to pursue the charges against him should also be admissible.”
Commonwealth’s Brief at 19.
We agree with the Commonwealth that A.C.’s PFA order against
Appellee is admissible. As the victim in this case, A.C.’s PFA order against
Appellee is important to establish the history of A.C.’s relationship with
Appellee and to show that Appellee was aware of his guilt. We concur with
the Commonwealth that there is a dearth of legal precedent that permits
testimony regarding a PFA order and its violation but simultaneously
excludes the actual PFA order and its violation. Significantly, Appellee has
not cited any case law in support of the trial court’s decision. Evidence of
prior abuse between a defendant and an abused victim is generally
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admissible to establish motive, intent, malice, or ill-will. Commonwealth v.
Jackson, 900 A.2d 936, 940 (Pa. Super. 2006).
We also agree with the Commonwealth that the probative value of
A.C.’s PFA order and evidence of its violation outweighed any prejudicial
effect to Appellee. Our Supreme Court has reiterated that “the trial court is
not 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. Hairston, 84 A.3d
657, 666 (Pa. 2014) (quoting Commonwealth v. Lark, 543 A.2d 491, 501
(Pa. 1988)).
We observe that all evidence of prior bad acts typically is prejudicial.
In this case, however, it is not unduly so. Our review of the record reveals
that A.C. was expected to testify about the horrific night on November 18,
2014, when Appellee locked her in his bedroom, forced her to have sex, and
choked and physically assaulted her. Rule 1925 Opinion, 11/13/15, at 3–4.
The next day, A.C. reported Appellee’s assault to the police. Id. at 4.
Shortly thereafter, A.C. sought a PFA order against Appellee, and the trial
court granted it on December 16, 2014. Rule 404(b) Motion, 6/26/15, at 9.
After engaging a third party to instruct A.C. to withdraw the criminal
charges she filed against him and/or refuse to appear at the preliminary
hearing, Appellee was convicted of violating the December 16, 2014 PFA
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order on January 14, 2015. Id. The trial court readily asserted that this
evidence “could have been admissible under the theories advanced by the
Commonwealth” but excluded it for being unfairly prejudicial. Rule 1925
Opinion, 11/13/15, at 9. The trial court wholly failed to substantiate this
finding. The Commonwealth asserts, and we agree, that it is necessary for
the jury to know exactly what that PFA order stated and the nature of
Appellee’s violation. Commonwealth’s Brief at 19. Similar to Flamer, both
acts prove the same state of mind: that both defendants were conscious of
their guilt. The trial court’s failure to substantiate its finding of unfair
prejudice compels our conclusion that its order should be reversed.
Next, we address the Commonwealth’s second and third arguments in
tandem. The Commonwealth contends that the trial court erred in excluding
certified copies of 1) C.D.’s PFA order against Appellee and its subsequent
violation, and 2) M.F.’s restraining orders against Appellee and a sworn
petition by M.F. Commonwealth’s Brief at 20. Most significantly, the
Commonwealth maintains that these documents should be permitted by the
common-plan-scheme-and-design exception to Rule 404(b), as well as to
prove forcible compulsion. Commonwealth’s Brief at 21, 23. The
Commonwealth contends, and we agree, that this evidence is especially
necessary to corroborate the victim’s allegations in a case involving sexual
assault, prove similarities between the cases, and to rebut Appellee’s
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contention that his sexual assault of A.C. actually was consensual sex.
Commonwealth’s Brief at 26.
The Commonwealth also avers that C.D.’s PFA order and its violation
as well as M.F.’s restraining orders should be admitted to establish the
history of the instant case. The Commonwealth posits that these orders are
necessary to establish the history of the case because Appellee directed A.C.
to contact C.D., in violation of C.D.’s PFA order against Appellee. Rule
404(b) Motion, 6/26/15, at 2. Appellee responds that the orders have no
probative value and merely show Appellee’s bad characteristics. Appellee’s
Brief at 15.
Evidence of prior bad acts may be admitted to establish the “existence
of a common scheme, [establish] an individual’s motive, intent, or plan, or
[identify] a criminal defendant as the perpetrator of the offense charged.”
Commonwealth v. Arrington, 86 A.3d 831, 842 (Pa. 2014). Two
conditions must be satisfied to admit prior-crimes evidence to establish a
common scheme: (1) the probative value of the evidence must outweigh its
potential for prejudice against the defendant and (2) “a comparison of the
crimes must establish a logical connection between them.” Id. (quoting
Commonwealth v. Miller, 664 A.2d 1310, 1318 (Pa. 1995)).
The Commonwealth relies on Commonwealth v. Elliot, 700 A.2d
1243 (Pa. 1997), to support its assertion that the evidence of prior bad acts
is necessary to prove “significant similarities” among C.D., M.F., A.C., and
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Appellee’s actions. Commonwealth’s Brief at 26. In Elliot, the defendant
was convicted of murdering a young female in an acquaintance’s apartment
after sexually assaulting her. Elliot, 700 A.2d at 1246. At the defendant’s
trial, the prosecution called three prior victims to testify that the defendant
had attacked them around the same time on different evenings, when
leaving the same club, and he had assaulted them with similar acts of
violence and sexual assault. Id. at 1247. The defendant appealed, claiming
that the trial court abused its discretion by improperly admitting this
evidence. Id. at 1250. Our Supreme Court held that evidence of the
defendant’s past sexual assaults was admissible and that the evidence was
more probative than prejudicial. Id.
In the instant case, the trial court excluded the evidence relating to
C.D. and M.F. for being unfairly prejudicial. However, it did not substantiate
its conclusion or explain its reasoning. Rule 1925 Opinion, 11/13/15, at 9.
The evidence of prior bad acts in this case “did not seek to inflame the jury’s
sensibilities with references to matters other than the legal proposition
relevant to the case.” Commonwealth v. Antidormi, 84 A.3d 736, 751
(Pa. Super. 2014). Rather, the Commonwealth’s evidence sought directly to
“complete the story of the crime on trial by proving its immediate context of
happenings near in time and place.” Commonwealth v. Brown, 52 A.3d
320, 326 (Pa. Super. 2012).
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Most convincingly, the excluded evidence is admissible under the
common-plan-scheme-or-design exception to Rule 404(b). The trial court
admitted that the evidence in the case displayed a strong common plan,
scheme, and design, as evidenced by the following:
The Commonwealth correctly argued in its Motion that
there is a common scheme, plan, or design in [Appellee’s]
actions/methodology. There are many similarities between the
incidents of abuse among [M.F., C.D., and A.C.], the current
victim. These similarities include the following facts: all the
victims were Caucasian, natural brunettes in their twenties or
early thirties; [Appellee] began breaking each woman down in
the relationship via verbal assaults and the degradation of the
victims’ intelligence; [Appellee] displayed extreme jealousy
towards [A.C.’s and C.D.’s] former boyfriends, which was often a
triggering point for physical violence; [Appellee] displayed
controlling behavior by recording the victims and taking over
their phones; [Appellee’s] interest in Physiognomy, where he
trained himself to identify submissive victims; the way
[Appellee] isolated the victims and performed similar physical
assaults on them (including pulling their long hair); [Appellee’s]
invasion of the victims’ privacy for guarding them as they used
the restroom; and the similar responses of the abuse by [A.C.
and C.D.] (in apologizing to [Appellee] and trying to work things
out), along with [Appellee’s] statement that the two are very
alike. When these facts are viewed in totality, as this Court was
required to do in deciding the Commonwealth’s [m]otion, it was
evident that there is a strong plan and design in [Appellee’s]
predatory actions and that he tends to abuse similar victims in
similar ways.
Rule 1925 Opinion, 11/13/15, at 13 (emphasis added). Compare
Commonwealth v. O’Brien, 836 A.2d 966 (Pa. Super. 2003 (two prior
sexual assaults on minor boys admissible under common-scheme-or-plan
exception in trial relating to assault on third minor boy); and
Commonwealth v. Aikens, 990 A.2d 1181 (Pa. Super. 2010) (fact pattern
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of prior assault was markedly similar such that evidence was admissible
under common-scheme-design-or-plan exception and probative value of
evidence outweighed its prejudicial impact).
In the instant case, while the trial court permitted testimony about
and supporting the PFA and restraining orders, it concluded that their
introduction would “serve merely to convince the jury that judges have
found [Appellee] to be a ‘bad guy.’” Rule 1925 Opinion, 11/13/15, at 14.
The trial court erred. While finding that the testimony about Appellee’s
actions against C.D. and M.F. provide “sufficient evidence to establish the
common scheme, plan, or design of [Appellee’s] prior bad acts,” id. at 15,
the trial court concluded that “the orders themselves could not be introduced
due to the risk of excessive prejudice to [Appellee].” Id. Once again,
because the trial court entirely failed to substantiate this conclusion in any
manner, it cannot be sustained.6
Appellee has filed a cross-appeal from that part of the September 10,
2015 order that permitted evidence of C.D.’s PFA order and M.F.’s
____________________________________________
6
The Commonwealth has withdrawn its contention regarding the trial
court’s denial of M.F.’s sworn petition. Commonwealth’s Brief at 34. In
addition, the Commonwealth has not asserted any argument regarding the
trial court’s denial of Appellee’s menacing-and-reckless-driving conviction in
North Dakota [mislabeled Ohio by the trial court] dated July 1, 2013, or
Appellee’s harassment conviction of October 14, 2014, in its statement of
questions. Thus, those issues are waived. Commonwealth v. Samuel,
102 A.3d 1001, 1003–1004 (Pa. Super. 2014) (failure to raise issue in
statement of questions involved on appeal waives issue) (citing Pa.R.A.P.
2116(a)).
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restraining orders against Appellee. Before addressing Appellee’s issue in
his cross-appeal, however, we must determine whether this Court has
jurisdiction. The “authority of an appellate court to conduct review of a pre-
trial order is a jurisdictional matter.” Commonwealth v. Jones, 826 A.2d
900, 903 (Pa. Super. 2003) (en banc) (citing Commonwealth v. Rosario,
615 A.2d 740, 742 (Pa. Super. 1992)). This Court may consider the issue of
jurisdiction sua sponte. Commonwealth v. Yarris, 731 A.2d 581, 587 (Pa.
1999).
Appellee, in his statement of jurisdiction in his brief, asserts that
jurisdiction “is conferred on the Superior Court by Pa.R.A.P. 511 (relating to
Cross Appeals) and Pa.R.A.P. 513 (relating to Consolidation of Multiples
Appeals).” Appellee’s Brief at 1–2. Rule 511, however, merely governs the
time for taking a cross-appeal, not the jurisdictional basis for filing one.
Rule 513 speaks only to the appellate court’s discretion to order appeals
from the same order to be argued together.
Procedurally, for our purposes here, motions to suppress and in limine
are described as being essentially the same, as both may preclude
Commonwealth evidence and prevent the Commonwealth from prosecuting
its case. See, e.g., Jones, 826 A.2d at 903–907. Thus, in evaluating this
Court’s jurisdiction to entertain the cross-appeal, we find guidance from case
law involving appeals from pretrial orders that denied and/or granted
admission of evidence, whether by suppression or by virtue of Pa.R.E. 404.
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See Commonwealth v. Padilla, 923 A.2d 1189, 1193–1194 (Pa. Super.
2007) (citing Commonwealth v. Noll, 662 A.2d 1123, 1125 (Pa. Super.
1995) (“For purposes of appealability, the [trial] court’s ruling on a motion in
limine is exactly the same as a pre-trial suppression order.”)).
Instantly, the trial court’s September 10, 2015 order is not a final
order because it did not dispose of all claims and all parties. Pa.R.A.P. 341
(b)(1). As noted supra, while the September 10, 2015 order is interlocutory
and does not end the entire case, the Commonwealth can appeal as of
right because it has certified that the order substantially handicapped its
prosecution. Whitlock, 69 A.3d at 636 n.2; Pa.R.A.P. 311(d) (in a criminal
case “the Commonwealth may take an appeal as of right from an order
that does not end the entire case where [it] certifies in the notice of appeal
that the order will terminate or substantially handicap the prosecution)
(emphases added). By its language, this rule is applicable only to the
Commonwealth’s right to take an interlocutory appeal in the circumstances
defined.
Appellee’s cross-appeal, however, is another matter. “The general rule
in criminal cases is that a defendant may appeal only from a final judgment
of sentence, and an appeal from any prior order or judgment will be
quashed.” Commonwealth v. McMurren, 945 A.2d 194, 195 (Pa. Super.
2008) (quoting Commonwealth v. Scott, 578 A.2d 933, 941 (Pa. Super.
1990)). “In this Commonwealth, an appeal may only be taken from: 1) a
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final order or one certified by the trial court as final; 2) an interlocutory
order as of right; 3) an interlocutory order by permission; or 4) a collateral
order.” Commonwealth v. Brister, 16 A.3d 530, 533 (Pa. Super. 2011).
We have already concluded that Appellee cannot satisfy the first and second
categories of appeals: the order appealed is not final, and Appellee, unlike
the Commonwealth, does not meet the requirements of Pa.R.A.P. 311.
Regarding the third category, an interlocutory appeal by permission, the trial
court never certified the order nor did Appellee file a petition seeking
permission to appeal. “Absent both jurisdictional prerequisites, we may not
grant [Appellee] permission to appeal.” Id. at 535. The final category, that
the September 10, 2015 order was appealable by Appellee as a collateral
order, likewise is not met. Pa.R.A.P. 313. “A collateral order is an order
separable from and collateral to the main cause of action where the right
involved is too important to be denied review and the question presented is
such that if review is postponed until final judgment in the case, the claim
will be irreparably lost.” Pa.R.A.P. 313(b). In this situation, if Appellee
ultimately is convicted, the trial court’s decision to admit the evidence can
be reviewed through Appellee’s right to a direct appeal; thus, the claim will
not be lost. Contra Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pa.
Super. 2010) (review of trial court’s order denying the Commonwealth’s
Pa.R.E. 404(b) motion to preclude introduction of defense evidence would
be irreparably lost in the event of an acquittal because “constitutional
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prohibition against double jeopardy protects against a second prosecution for
the same offense after an acquittal”).
We find additional guidance in Commonwealth v. Slaton, 556 A.2d
1343 (Pa. Super. 1989) (en banc). While there were three concurring and
dissenting opinions in that case, this Court was unanimous in its decision to
quash the defendant’s cross-appeal, where the Commonwealth filed an
appeal from a pretrial order granting in part and denying in part the
defendant’s motion to suppress evidence. The Slaton Court examined
relevant precedent related to the Commonwealth’s and a defendant’s
appeals of pretrial orders. For example, in Commonwealth v. Bosurgi,
190 A.2d 304 (Pa. 1963), our Supreme Court commented on the
Commonwealth’s versus a defendant’s right to appeal a pretrial suppression
ruling and stated:
The right of appeal by a defendant stands upon an entirely
different footing. The denial of a defendant’s motion for the
suppression of evidence does not deprive a defendant of an
appellate review of the validity of that order. At trial, the
defendant still has full opportunity to object to the introduction
into evidence of the allegedly improper evidence and, in the
event of his conviction, he will then have an opportunity to
secure an appellate evaluation of the propriety and admissibility
of such evidence. Therefore, unlike the Commonwealth, an
adverse pretrial disposition of a motion to suppress evidence
does not deprive the defendant of his only opportunity for
appellate review. Under such circumstances, the element of
finality, which is the basis of appealability, is lacking in an order
denying suppression and the defendant should have no right of
appeal from such order.
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Id. at 308–309. The Slaton Court also looked to Commonwealth v.
Fisher, 221 A.2d 115 (Pa. 1966), where our Supreme Court addressed the
issue of cross-appeals by criminal defendants when the Commonwealth
appealed part of the trial court’s disposition of a motion to suppress. The
Fisher Court held that a “defendant in a criminal case may not appeal from
a pretrial order denying his motion for the suppression of evidence.” Id. at
116 (citing Bosurgi, 190 A.2d 304). Ultimately, on this issue, Slaton
concluded as follows:
In light of the long-standing rule of American jurisprudence
that, except in extraordinary circumstances, an appeal may be
taken only from a final order of the court, and in recognition of
our responsibility to preserve the sanctity of the appellate
process, we hold that a criminal defendant may not appeal from
an order of a suppression court even in the posture of a
cross-appeal.
Slaton, at 1352–1353, affirmed, 608 A.2d 5 (Pa. 1992).
Furthermore, in Commonwealth v. Strong, 825 A.2d 658 (Pa.
Super. 2003), this Court addressed the defendant’s appeal from, inter alia,
pretrial orders that admitted evidence of the defendant’s prior bad act. In
concluding that the issue was not properly before us, we noted that the trial
court’s pretrial order denying the defendant’s motion to preclude prior
crimes evidence was interlocutory and not appealable, “as it did not dispose
of all claims and all parties.” Id. at 667 (citing Pa.R.A.P. 341(b)(2)). We
explained that “[a]n interlocutory order, not appealable as of right under
Pa.R.A.P. 311, may be appealed only with permission of court,” id. at 668,
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and Strong’s “only recourse would have been to petition for permission to
appeal pursuant to Pa.R.A.P. 1311, which he failed to do.” Id. at 667 n.3.
Thus, we conclude that we lack jurisdiction to consider Appellee’s cross-
appeal of that portion of the September 10, 2015 order that permitted
evidence of C.D.’s PFA order and M.F.’s restraining orders against Appellee.
For the foregoing reasons, we reverse that portion of the
September 10, 2015 order excluding a certified copy of C.D.’s PFA order
granted May 20, 2014, certified copies of Appellee’s two violations of that
order, certified copies of M.F.’s temporary and permanent restraining orders,
a certified copy of A.C.’s PFA order granted December 16, 2014, and a
certified copy of Appellee’s violation of that order. We quash Appellee’s
cross-appeal. We remand this matter to the common pleas court so that the
case may proceed.
Order reversed in part; cross-appeal quashed; case remanded.
Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/2016
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