Com. v. Tressler, L. ( 2018 )

J-A06004-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellant
v.
LORI ANN TRESSLER,
Appellee No. 970 WDA 2017
Appeal from the Order Entered June 22, 2017
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0000011-2016
BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 15, 2018
The Commonwealth files this interlocutory appeal pursuant to Pa.R.A.P.
311(d) from the trial court’s order granting Lori Ann Tressler’s (“Appellee”)
motion in limine. The Commonwealth charged Appellee with homicide for the
death of Robert Lee Engle (“Victim”), who suffered a single stab wound to the
heart. Appellee sought to exclude evidence of her numerous prior stabbings
of Victim under the general ban on the admission of prior bad acts evidence.
The court granted that motion, and the Commonwealth has certified that the
trial court’s order has substantially handicapped their case. After careful
review, we affirm in part and reverse in part.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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The following preliminary facts were taken from the multiple affidavits
of probable cause filed in this case.1 Appellee and Victim were romantically
involved and living together in Smithfield, PA, a small borough in Fayette
County. The pair were out drinking with two friends on the evening of August
21, 2015, which continued into the early morning of August 22, 2015. When
they returned home, Victim became involved in a verbal altercation with
Appellee and her son, Jeffrey Tressler (“Jeffrey”), outside of their mutual
residence. At some point, Victim may have pushed Appellee to the ground.
Subsequently, the Commonwealth alleges that Appellee retrieved a kitchen
knife from inside the home, returned outside, and stabbed Victim once in the
chest. Victim sought help by walking to a neighbor’s home and knocking on
their door but, shortly thereafter, he collapsed and died from his wound.
On January 20, 2016, the Commonwealth charged Appellee by criminal
information with homicide, 18 Pa.C.S. § 2501. On February 22, 2017,
following the Commonwealth’s giving notice of its intent to introduce prior bad
acts evidence, Appellee filed a motion in limine seeking to exclude that
evidence. See Appellee’s Motion in Limine, 2/22/17, at 1-3 (unnumbered
pages). Specifically, Appellee sought to exclude evidence that the
Commonwealth had previously charged her with aggravated assault, simple
assault, and harassment, against Victim on a prior occasion, charges which
were ultimately dismissed or otherwise withdrawn. She also sought to exclude
____________________________________________
1See Affidavit of Probable Cause, 8/22/15, at 1 (Trooper Broadwater); and
see Affidavit of Probable Cause, 8/22/15, at 1-2 (Trooper Dowlin).
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evidence that she had been previously listed as the accused or the victim in
incidents of domestic violence in prior police reports, incidents which did not
result in formal charges, and testimonial evidence from “numerous” witnesses
regarding these prior charged and uncharged incidents. Id. at 1-2 ¶ 4. Even
more broadly, Appellee sought to exclude
any and all evidence referencing any prior incident between
[Appellee] and the alleged victim, including but not limited to, the
2009 criminal charges and related incident; any other criminal
matter; any protection from abuse proceedings or other domestic
abuse proceedings involving [Appellee]; any prior bad acts
involving [Appellee] and any other individual; and any statements
referencing any prior incidents that will prejudice [Appellee]’s
case….
Id. at 2 ¶ 7. Appellee argued that such evidence is “clearly prejudicial” to her
case, and inadmissible under Pa.R.E. 404(b)(1) (“Evidence of a crime, wrong,
or other act is not admissible to prove a person's character in order to show
that on a particular occasion the person acted in accordance with the
character.”). Id. at ¶ 6.
On June 22, 2017, the trial court entered an order granting Appellee’s
motion in limine with regard to this prior bad acts evidence, and
contemporaneously provided an opinion in support thereof.2 Trial Court
Opinion (TCO), 6/22/17, at 1. Specifically, the trial court precluded the
Commonwealth
from introducing evidence of [Appellant]’s prior bad acts related
to the 2009 incident for which [Appellant] was charged and
____________________________________________
2The trial court also denied the motion in limine with regard to other matters
not pertinent to this appeal.
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charges were dismissed. In addition, the Commonwealth, during
its case in chief, is precluded from introducing evidence of prior
attempted stabbings or occasions when [Appellant] retrieved a
knife while arguing with … [V]ictim in this case.
Order, 6/23/17, at 1. Notably, the trial court reserved judgment “on the
admissibility of prior bad acts evidence once the defense rests, should the
Commonwealth present any rebuttal witnesses.” Id. Thus, the scope of the
trial court’s order was limited to the Commonwealth’s case in chief.
On July 6, 2017, the Commonwealth filed a notice of interlocutory
appeal pursuant to Pa.R.A.P. 311(d) (“In a criminal case, under the
circumstances provided by law, the Commonwealth may take an appeal as of
right from an order that does not end the entire case where the
Commonwealth certifies in the notice of appeal that the order will terminate
or substantially handicap the prosecution.”). The trial court did not order the
Commonwealth to file a Pa.R.A.P. 1925(b) statement. Instead, the trial court
issued a statement in lieu of a Pa.R.A.P. 1925(a) opinion, incorporating its
June 22, 2017 opinion. Statement in Lieu of Opinion, 8/4/17, at 1-2.
The Commonwealth now presents the following single question for our
review:
Whether the [t]rial [c]ourt erred in precluding the Commonwealth
and thereby substantially handicapping the prosecution, from
introducing evidence of [Appellee]’s prior bad acts, including
testimony regarding instances when she had previously stabbed
the decedent and/or [Appellee]’s previous propensity to retrieve
a knife during arguments with the decedent?
Commonwealth’s Brief at 4.
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The standard of review for evidentiary rulings of the lower court is well
settled. Admissibility of evidence “is a matter addressed to the sound
discretion of the trial court, and an appellate court may reverse only upon a
showing that the trial court abused its discretion.” Commonwealth v.
Odum, 584 A.2d 953, 954 (Pa. Super. 1990) (quoting Commonwealth v.
Claypool, 495 A.2d 176, 178 (Pa. 1985)).
The Pennsylvania Rules of Evidence provide that: “Evidence of a crime,
wrong, or other act is not admissible to prove a person's character in order to
show that on a particular occasion the person acted in accordance with the
character.” Pa.R.E. 404(b)(1). Nevertheless, “[t]his evidence may be
admissible for another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.” Pa.R.E. 404(b)(2). Our Supreme Court has determined that Rule
404(b)(2) does not provide an exclusive list of exceptions. See
Commonwealth v. Lark, 543 A.2d 491, 497 (Pa. 1988) (stating that the “list
of ‘special circumstances’ is not exclusive”). Nevertheless, “[i]n a criminal
case this evidence is admissible only if the probative value of the evidence
outweighs its potential for unfair prejudice.” Id. (emphasis added).
The Commonwealth asserts that the precluded evidence was admissible
in their case in chief under numerous Rule 404(b)(2) exceptions, and that the
evidence’s probative value outweighed its potential for unfair prejudice. In its
opinion, the trial court rejected the application of any Rule 404(b)(2)
exception and, alternatively, ruled that even if admissible under one of those
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exceptions, the potential prejudice of such evidence still outweighed any
probative value.
Thus, we must engage in a two-step analysis of the trial court’s ruling
to determine if the court abused its discretion by excluding the prior bad acts
evidence at issue. First, we must decide if one or more of the Rule 404(b)(2)
exceptions apply to the evidence in question. If not, our inquiry ends, and we
must find that the trial court did not abuse its discretion. If we do find that
one or more of the Rule 404(b)(2) exceptions apply, we must consider
whether the trial court abused its discretion by ruling that the probative value
of such evidence was outweighed by its potential for unfair prejudice.
The prior bad acts evidence at issue, generally speaking, consists of
testimony by various witnesses concerning prior incidents where Appellee
used a knife to stab Victim. With regard to the prior bad act that resulted in
Appellee’s arrest for assault charges, the Commonwealth would call two police
officers to testify about the facts of that specific case. With regard to various
acts that did not result in an arrest or criminal charges, the Commonwealth
would call Appellee’s son, who would testify that Appellee “personally
stab[bed] [V]ictim at least 20 times, and that he was personally stabbed by
… Appellee.” Commonwealth’s Brief at 7. Additionally, the Commonwealth
would call Victim’s mother to testify that she often observed Victim with “fresh
stab wounds on his body, which … Appellee would brag that she had caused.”
Id. Where it is appropriate to differentiate between these categories, we will
refer to “prior arrest evidence,” “testimony of Appellee’s son,” and “testimony
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of Victim’s mother,” respectively. We will refer to this evidence, collectively,
as the prior bad acts evidence (“PBA evidence”).
Motive
The Commonwealth claims that the PBA evidence was relevant to
demonstrate Appellee’s motive to stab Victim. To be admissible under Rule
404(b)(2), there “must be a specific logical connection between the other act
and the crime at issue which establishes that the crime currently being
considered grew out of or was in any way caused by the prior set of facts and
circumstances.” Commonwealth v. Ross, 57 A.3d 85, 100 (Pa. Super.
2012) (quotation marks omitted). The Commonwealth alleges that the PBA
evidence “supports a finding of motive[,]” because of “similarities between the
prior bad acts and the crime at issue,” which the Commonwealth sets forth as
follows:
(a) Appellee utilized the same type of weapon, specifically, a
kitchen steak knife; (b) Appellee primarily attacked the same
victim, namely Robert Engle; (c) Appellee was engaged in an
argument with [V]ictim at the time of the stabbings; and, (d) []
Appellee was imbibing in alcohol at the time of the incidents, or
immediately prior thereto.
Commonwealth’s Brief at 10.
The trial court rejected this theory, indicating that it could not find any
logical connection between the PBA evidence and a potential motive for
Appellee’s stabbing of Victim. TCO at 3. Indeed, the Commonwealth does
not even postulate a motive that is ostensibly suggested by the PBA evidence
at issue in this case.
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In Commonwealth v. Martin, 387 A.2d 835 (Pa. 1978), thirteen days
prior to his murder, the victim had struck the appellant with a chair when the
appellant was attempting to rob others. Our Supreme Court held that it was
reasonable to conclude that a revenge motive for the subsequent murder
could be demonstrated by evidence of the prior bad act. Martin, 387 A.2d at
838. Notably, there was very little that was similar between the prior bad act
and the subsequent murder in that case, apart from the involvement of the
same parties. By contrast, in Ross, it was alleged that the appellant had
sexually assaulted, strangled, and ultimately drowned the victim. Numerous
prior bad acts by Ross bore similarities to the murder, including his inebriation
during the offenses, his choking of the victims, his sexual assaulting of the
victims with a foreign object, and common attributes shared by each of the
victims. Nevertheless, the Ross Court concluded that evidence of such prior
bad acts evidence did not tend to demonstrate a motive in the new case.
The instant case is more analogous to Ross than it is to Martin. While
significant similarities exist between the PBA evidence and Victim’s murder,
there is no obvious logical connection between the PBA evidence and the
current offense in terms of Appellee’s motive. Accordingly, we conclude that
that the trial court did not abuse its discretion when it precluded the
Commonwealth from introducing the PBA evidence under a motive theory.
Intent/Lack of Accident
Next, the Commonwealth suggests that the PBA evidence was relevant
to prove Appellee’s intent to kill Victim or, relatedly, that Victim’s death did
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not result from an accident. The Commonwealth states that “[g]iven the
circumstances surrounding [Victim]’s murder, [resulting from] a single stab
wound to the heart, there can be a question as to [Appellee’s] intent….”
Commonwealth’s Brief at 10. The Commonwealth further argues:
Appellee may raise the defense that she did not intend for the
victim to die as a result of the stabbing. During her oral recorded
statement, Appellee told police that she threw a drawer full of
kitchen utensils at [V]ictim. The Commonwealth contends that
this prior bad act testimony will demonstrate that Appellee's intent
was to inflict a stab wound on the victim on the night in question[].
There was no mistake or accident that a knife penetrated the
victim's heart. This prior bad act testimony supports this essential
and required element. Accordingly, prior bad acts testimony
should be permitted with regard to intent.
Id. at 10-11.
The trial court rejected this argument, reasoning:
The fact that [Appellee] may have retrieved a kitchen or steak
knife on many prior occasions when there were domestic disputes
with [Victim] does not necessarily tend to prove that her intent
on this particular occasion was in fact to kill him. Evidence of
these prior acts would simply show that [Appellee] responded to
domestic disputes by grabbing a kitchen or steak knife.
TCO at 3 (emphasis added).
The intent, absence of mistake, or lack of accident exceptions set forth
in Rule 404(b)(2) are often one and the same, especially when there is reason
to believe that the nature of a particular defense will be that the criminal act
in question was done unintentionally. In seeking to undermine or disprove
such a claim, there are few hairs to split between proving the actor’s intent,
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and disproving whether an act was accidental. These exceptions, therefore,
often go hand-in-hand, as they appear to do in this case.
Here, Appellee told police that she threw a drawer full of kitchen utensils
at Victim, clearly suggesting that the resulting single, fatal stab wound to
Victim’s heart was accidental. The PBA evidence tends to suggest otherwise,
given the wealth of evidence potentially demonstrating Appellee’s frequent
and intentional prior stabbings of Victim. The PBA evidence tends to suggest
that the stabbing at issue was not an accident and, simultaneously, that the
stabbing was intentional rather than unintentional.
Nowhere in our review of the relevant case law, nor in Rule 404(b)(2)
itself, could we find the applicable standard expressed in the absolutist
language used by the trial court, such that prior bad acts evidence must
necessarily prove or necessarily tend to prove one of the enumerated
exceptions to be admissible. To be sure, it is possible that a defendant who
acted intentionally on a thousand prior occasions could act unintentionally or
by mistake on the 1001st occasion of committing a similar act. Indeed, when
considering the identity exception, it is possible that a serial killer could
deviate from his usual pattern, or that another person could copy his
distinctive pattern. Nevertheless, what the prior acts tend to prove is not
synonymous with what they prove out of necessity. Evidence is relevant if it
“tends to establish a material fact, makes a fact at issue more or less
probable, or supports a reasonable inference supporting a material
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fact….” Commonwealth v. Boczkowski, 846 A.2d 75, 88 (Pa. 2004)
(emphasis added).
Thus, the standard applied by the trial court in dismissing the
Commonwealth’s argument based on the intent exception was too strict, and
appears to impose a weight standard on the PBA evidence, rather than merely
determining its admissibility. Here, the PBA evidence tends to make it less
probable that Victim died as the result of an accident or mistake. It similarly
tends to make it more probable that Appellee acted intentionally when she
stabbed Victim. Moreover, the trial court’s limited focus on the specific intent
to kill was misplaced. Appellee was not charged solely with first-degree
murder; she was charged with a more general provision, criminal homicide,
18 Pa.C.S. § 2501(a). “A person is guilty of criminal homicide if he
intentionally, knowingly, recklessly or negligently causes the death of another
human being.” 18 Pa.C.S. § 2501(a).
As noted previously, we are cognizant that the trial court limited its
ruling on the PBA evidence to the Commonwealth’s case-in-chief, which
suggests that the trial court is willing to reconsider its ruling depending on the
nature of the defense presented at trial. However, in Boczkowski, our
Supreme Court expressly rejected the notion that “evidence of an absence of
accident must or should be presented only as responsive evidence to a
specifically-forwarded defense of accident[,]” at least with respect to murder
prosecutions. Boczkowski, 846 A.2d at 88. This is because, “[i]n a murder
prosecution, the Commonwealth bears the affirmative burden of convincing
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the jury beyond a reasonable doubt that the death was only by homicide[.]”
Id. (emphasis added). Likewise, the Commonwealth always bears the burden
of demonstrating the mens rea elements of an offense.
In Boczkowski,
evidence available to the Commonwealth … was suggestive that
[the victim]'s death could have been accidental, even if [the]
appellant did not affirmatively argue that inference. Illustrative
are the facts that [the] appellant told paramedics at the scene that
on the night she died [that the victim] had consumed fourteen
beers; that he and [the victim] had been celebrating an upcoming
event; that he had left her in the hot tub while he went to take a
shower; and that, upon returning, he found her unconscious and
face up in the hot tub.
Id. at 89.
Similarly, here, Appellee told police that Victim died after she threw a
drawer full of kitchen utensils at him. This statement constitutes evidence of
an accidental death, or at least, of an unintentional killing, evidence which the
Commonwealth must effectively rebut in order to prove any degree of
homicide beyond a reasonable doubt. Thus, based on our reading of
Boczkowski, and our analysis of the standard applied by the trial court, we
are compelled to conclude that the court erred by deeming the PBA evidence
inadmissible under either the intent or absence of mistake provisions of Rule
404(b)(2), in the Commonwealth’s case-in-chief.
Identity/Common Scheme, Plan or Design
Next, the Commonwealth argues that the PBA evidence was admissible
under the “identity” or “common scheme, plan or design” exceptions to the
prior bad acts ban. The definitions of these exceptions are similar, but
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diverge as to the purpose for which they are used. The identity exception is
set forth in Commonwealth v. Shively, 424 A.2d 1257 (Pa. 1981), as
follows:
“[]Evidence of other crimes is admissible when it tends to prove a
common scheme, plan or design embracing the commission of two
or more crimes so related to each other that proof of one tends to
prove the others or to establish the identity of the person
charged with the commission of the crime on trial, in other words
where there is such a logical connection between the crimes that
proof of one will naturally tend to show that the accused is the
person who committed the other.” Commonwealth v. Wable,
382 Pa. 80, 82, 114 A.2d 334, 336-37 (1955)….
Shively, 424 A.2d at 1259 (emphasis added). Thus, the purpose of the
identity exception is, quite obviously, to prove that the identity of the accused
and the perpetrator of crime are one in the same.
A prior-bad-acts-ban exception also exists for “a common scheme,
plan[,] or design embracing the commission of two or more crimes so related
to each other that proof of one tends to prove the other[.]” O'Brien, 836
A.2d at 969. While similarly defined, the common scheme, plan, or design
exceptions is used for purposes other than proving identity. In O’Brien, for
instance, it was used to bolster or otherwise corroborate the victim’s version
of events. Id. at 970.
The Commonwealth contends that the PBA evidence fits within these
exceptions because, in each incident described by the PBA evidence, Appellee,
while intoxicated, used a steak knife to stab the same person, Victim, and did
so during or following a domestic dispute with Victim. The trial court rejected
the identity claim, indicating that the evidence simply did not meet the strict
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Shively standard. TCO at 3-4. The court’s specific analysis of the common
scheme, plan, or design exception, however, is absent from its opinion. See
TCO at 3-4.
In our view, Appellee’s repeated use of the same weapon, against the
same victim, and in virtually the same circumstances (arguing with Victim at
home while intoxicated), demonstrates a pattern of conduct that is “unusual
and distinctive” to the extent that it is “like a signature.” Shively, 424 A.2d
1259. We are especially convinced in this regard due to the frequency of the
stabbings against the same target. Nevertheless, it does not appear that
identity is yet at issue in this case, nor does it appear likely to be an issue,
especially given Appellee’s statement to police. 3 Accordingly, we agree with
the trial court that the identity exception is ill-fitted to the facts of this case.
However, the common scheme, plan, or design exception is not
constrained by the purpose of proving identity, and we find the pattern
demonstrated by the PBA evidence to be at least as equally distinctive as the
pattern this Court observed in O'Brien. In that case, also an interlocutory
appeal from a trial court’s refusal to admit prior bad acts evidence under Rule
404(b)(2), the defendant was charged with sexually assaulting a minor. As
described by the Commonwealth in O’Brien, the new charges were strikingly
similar to a prior offense:
____________________________________________
3At oral argument, Appellee indicated that identity might be an issue as this
matter moves forward. If that were indeed the case, then the PBA evidence
would be admissible for that purpose as well.
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All of the charges stemmed from [the] defendant's sexually
assaulting young boys. All of the victims shared similar personal
characteristics. Each boy was white, between the ages of eight
and eleven years old, and each boy knew [the] defendant because
his parents were friends of [the] defendant. Each crime was
committed after [the] defendant was alone with his victim, in [the]
defendant's home and often in his bedroom, after [the] defendant
had shown pornography to the victim. Each crime involved
deviate sexual intercourse—either oral or anal—and, in each case,
[the] defendant instructed the victim not to tell anyone what had
occurred.
O’Brien, 836 A.2d at 970.
The trial court in O’Brien precluded the Commonwealth from admitting
the evidence of the prior crime, finding that, although similar, the factual
similarities between the crimes did not rise to the level of a “signature.” Id.
at 970-71. The O’Brien Court reversed, reasoning that the trial court had
focused exclusively on the defendant’s actions, rather than “the factual
similarities of the incidents in their entirety.” Id. at 971. The appropriate
standard, the O’Brien Court determined, was to examine “the habits or
patterns of action or conduct undertaken by the perpetrator to commit crime,
as well as the time, place, and types of victims typically chosen by the
perpetrator.” Id. (emphasis added, quoting Commonwealth v. Smith, 635
A.2d 1086, 1089 (Pa. Super. 1993)).
Here, we agree with the Commonwealth that the PBA evidence
establishes a pattern that is at least as distinctive as that which occurred in
O’Brien. Appellee has repeatedly targeted the same victim, with the same
type of weapon, in very similar circumstances (while having a domestic
dispute, after becoming intoxicated). By contrast, in O’Brien, there was only
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a single prior bad act at issue, which had involved an entirely different victim.
Accordingly, we conclude the trial court erred when it determined that the
common scheme, plan, or design exception did not apply to the PBA evidence.
Probative Value and Unfair Prejudice
Having determined that multiple Rule 404(b)(2) exceptions applied to
the PBA evidence, we now turn to addressing the trial court’s alternative
analysis that, even if admissible under a Rule 404(b)(2) exception, the PBA
evidence is unduly prejudicial in relation to its probative value. Even if facially
admissible under an Rule 404(b)(2) exception, the PBA evidence may only be
admitted at trial “if the probative value of the evidence outweighs its potential
for unfair prejudice.” Pa.R.E. 404(b)(2).
In conducting the probative value/prejudice balancing test,
courts must consider factors such as the strength of the
“other crimes” evidence, the similarities between the
crimes, the time lapse between crimes, the need for the
other crimes evidence, the efficacy of alternative proof of
the charged crime, and “the degree to which the evidence
probably will rouse the jury to overmastering hostility.”
McCormick, Evidence § 190 at 811 (4th ed.1992). See also
Commonwealth v. Frank, 395 Pa. Super. 412, 577 A.2d
609 (1990) (enumerating balancing test factors, including
ability for limiting instruction to reduce prejudice).
Commonwealth v. Kinard, 95 A.3d 279, 286 (Pa. Super. 2014)
(quoting Commonwealth v. Weakley, 972 A.2d 1182, 1191 (Pa.
Super. 2009)). The admission of evidence becomes problematic
only when its prejudicial effect creates a danger that it will stir
such passion in the jury as to sweep them beyond a rational
consideration of guilt or innocence of the crime on trial.
Commonwealth v. Sherwood, 603 Pa. 92, 114–16, 982 A.2d
483, 496–98 (2009) (internal quotation marks and citation
omitted).
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Commonwealth v. Diehl, 140 A.3d 34, 41 (Pa. Super. 2016), appeal denied,
160 A.3d 757 (Pa. 2016).
The trial court’s analysis of this matter, in its entirety, is as follows:
The Court has carefully considered that even if the Commonwealth
could show any of the exceptions set forth in Pa.R.E. 404(b)[(2)],
the probative value of the evidence does not outweigh the
potential for unfair prejudice. It would be difficult, if not
impossible, for a jury not to simply conclude that [Appellee]
stabbed and killed [Victim] on this occasion since she stabbed or
tried to stab him on one or twenty previous occasions. The
purpose of Rule 404(b) is to prohibit the admission of prior bad
acts to prove "the character of a person in order to show action in
conformity therewith." The prior bad acts testimony offered in
this case would certainly cause the jury to conclude that if
[Appellee] stabbed [Victim] previously, then she must have
stabbed him on this occasion.
TCO at 4.
The court’s analysis is problematic for two reasons. First, the court does
not describe, nor even acknowledge, the probative value of the evidence in
question. As discussed above, the PBA evidence is probative of Appellee’s
intent, the cause of Victim’s death (in terms of lack of accident/mistake), and
the establishment of a common scheme, plan, or design between the prior
bad acts and the current offense to bolster the accounts of the
Commonwealth’s proposed eyewitnesses. The PBA evidence at issue is
especially probative in this matter given Appellee’s statement to police. Thus,
it appears that the trial court’s analysis understates, if not outright ignores,
the significant probative value of the PBA evidence in this case.
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Second, the trial court’s summation of the prejudicial nature of the PBA
evidence is fatally nonspecific. The court merely notes the risk of prejudice
involved in all cases involving evidence of prior bad acts – the risk of the jury
assuming that a defendant would act “in accordance with the character” traits
demonstrated by the prior bad acts. Pa.R.E. 404(b)(2). In its analysis, the
trial court did not discuss any particular risks presented in the specific
circumstances of this case that would make the generic risk presented by the
PBA evidence more or less likely.
In our view, the significant probative value of the PBA evidence at issue
generally outweighs the risk of unfair prejudice to Appellee. “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.” Commonwealth
v. Ivy, 146 A.3d 241, 251 (Pa. Super. 2016). Moreover, “[i]t is presumed
the jury follows the court's instructions.” Commonwealth v. Speight, 854
A.2d 450, 458 (Pa. 2004). Thus, the risk of unfair prejudice should be
mitigated significantly by the trial court’s issuing cautionary instructions
regarding the PBA evidence. Accordingly, with regard to the proposed
testimonies of Appellee’s son and Victim’s mother, we conclude that the
probative value of that evidence is not outweighed by the risk of unfair
prejudice, assuming, of course, that proper and adequate cautionary
instructions accompany their respective testimony.
However, we reach the opposite conclusion with regard to the prior
arrest evidence, for the following reasons. First, Appellee’s prior arrest and
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the resulting charges did not ultimately result in a conviction. Second, the
proposed witnesses for the prior arrest evidence are two police officers who
were not represented by the Commonwealth as eyewitnesses to the bad acts
in question and, therefore, are likely to be indirect sources for the PBA
evidence arising from Appellee’s arrest on those charges. Third, the
involvement of the criminal justice system in the prior arrest evidence risks
the jury’s placing undue weight on the veracity of those specific allegations.
Finally, the prior arrest evidence would be largely cumulative given the
proposed testimonies of Appellee’s son and Victim’s mother. Thus, the
additional probative value of the prior arrest evidence, beyond what would be
provided by Appellee’s son and Victim’s mother, is minimal, whereas the risk
of unfair prejudice from the prior arrest evidence is substantially greater.
In sum, we conclude that the trial court abused its discretion by
precluding the proposed testimonies of Appellee’s son and Victim’s mother, as
such evidence is admissible under several Rule 404(b)(2) exceptions, and
because the probative value of that evidence outweighs the risk of unfair
prejudice. However, with regard to the prior arrest evidence, we conclude
that while it does satisfy several Rule 404(b)(2) exceptions, the risk of unfair
prejudice outweighs its probative value.
Order affirmed in part, reversed in part. Remanded for further
proceedings. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/15/2018
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