Com. v. Lowry, D. ( 2017 )

J-S38015-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DESCHAE LOWRY :
:
Appellant : No. 1338 EDA 2016
Appeal from the Judgment of Sentence March 30, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0007108-2014
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DE-SCHAE M. LOWRY :
:
Appellant : No. 1342 EDA 2016
Appeal from the Judgment of Sentence March 30, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0007099-2014
BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED JULY 25, 2017
Appellant, Deschae Lowry,1 appeals from the judgment of sentence
entered in the Delaware County Court of Common Pleas, following his jury
____________________________________________
1
The captions illustrate the alternative spellings for Appellant’s first name as
Deschae and De-Schae.
___________________________
*Former Justice specially assigned to the Superior Court.
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trial convictions for first-degree murder and theft, arising from the events
which occurred on August 1, 2014, when Appellant fatally strangled Victim in
her home and then drove Victim’s car from her home to Florida.2 We affirm.
The trial court opinion fully and accurately sets forth the relevant facts
and procedural history of this case. Therefore, we have no need to restate
them. Procedurally, this Court consolidated Appellant’s two notices of
appeal on June 2, 2016.
Appellant raises one issue for our review:
WHETHER THE COURT ERRED IN PERMITTING THE
COMMONWEALTH TO INTRODUCE EVIDENCE OF ALLEGED
PRIOR BAD ACTS OR OTHER WRONGS FOR WHICH
[APPELLANT] WAS NOT ON TRIAL SINCE THE PROBATIVE
VALUE OF THAT EVIDENCE DID NOT OUTWEIGH THE
POTENTIAL FOR UNFAIR PREJUDICE THAT FLOWED FROM
ALL THE EVIDENCE PERTAINING TO PROTECTION FROM
ABUSE MATTERS, AS WELL AS ALL OF THE TESTIMONY
SUPPLIED BY THE FIRST THREE COMMONWEALTH
WITNESSES[?]
(Appellant’s Brief at 7).
The standard of review for admission of evidence is as follows: “The
admissibility of evidence is at the discretion of the trial court and only a
showing of an abuse of that discretion, and resulting prejudice, constitutes
reversible error.” Commonwealth v. Ballard, 622 Pa. 177, 197-98, 80
A.3d 380, 392 (2013), cert. denied, ___ U.S. ___, 134 S.Ct. 2842, 189
L.Ed.2d 824 (2014).
____________________________________________
2
18 Pa.C.S.A. §§ 2502(a), 3921(a), respectively.
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The term “discretion” imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion,
within the framework of the law, and is not exercised for
the purpose of giving effect to the will of the judge.
Discretion must be exercised on the foundation of reason,
as opposed to prejudice, personal motivations, caprice or
arbitrary actions. Discretion is abused when the course
pursued represents not merely an error of judgment, but
where the judgment is manifestly unreasonable or where
the law is not applied or where the record shows that the
action is a result of partiality, prejudice, bias or ill will.
Commonwealth v. Goldman, 70 A.3d 874, 878-79 (Pa.Super. 2013),
appeal denied, 624 Pa. 672, 85 A.3d 482 (2014). “To constitute reversible
error, an evidentiary ruling must not only be erroneous, but also harmful or
prejudicial to the complaining party.” Commonwealth v. Lopez, 57 A.3d
74, 81 (Pa.Super. 2012), appeal denied, 619 Pa. 678, 62 A.3d 379 (2013).
Admissibility depends on relevance and probative value.
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, 570 Pa. 117, 135, 808 A.2d 893, 904
(2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2284, 156 L.Ed.2d 137 (2003)
(quoting Commonwealth v. Stallworth, 566 Pa. 349, 363, 781 A.2d 110,
117-18 (2001)).
The Pennsylvania Rules of Evidence govern the admissibility of prior
crimes, wrongs, or acts evidence as follows:
Rule 404. Character evidence; Crimes or Other Acts
* * *
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(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other
act is not admissible to prove a person's character in order
to show that on a particular occasion the person acted in
accordance with the character.
(2) Permitted Uses. This evidence may be admissible for
another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident. In a criminal case this
evidence is admissible only if the probative value of the
evidence outweighs its potential for unfair prejudice.
(3) 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).
“Evidence of crimes other than the one in question is not admissible
solely to show the defendant’s bad character or propensity to commit
crime.” Commonwealth v. Collins, 550 Pa. 46, 55, 703 A.2d 418, 422
(1997), cert. denied, 525 U.S. 1015, 119 S.Ct. 538, 142 L.Ed.2d 447(1998). Nevertheless:
[E]vidence of other crimes is admissible to demonstrate
(1) motive; (2) intent; (3) absence of mistake or accident;
(4) 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 (5) the
identity of the person charged with the commission of the
crime on trial. Additionally, evidence of other crimes may
be admitted where such evidence is part of the history of
the case and forms part of the natural development of the
facts.
Id. at 55, 703 A.2d at 422-23; Pa.R.E. 404(b)(2). See also
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Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, 1283
(Pa.Super. 2004) (en banc) (reiterating “other crimes” evidence is
admissible to show motive, intent, absence of mistake or accident, common
scheme or plan, and identity). “Factors to be considered to establish
similarity are the elapsed time between the crimes, the geographical
proximity of the crime scenes, and the manner in which the crimes were
committed.” Commonwealth v. Taylor, 671 A.2d 235, 247 (Pa.Super.
1996), appeal denied, 546 Pa. 642, 683 A.2d 881 (1996). See also
Commonwealth v. Andrulewicz, 911 A.2d 162, 169 (Pa.Super. 2006),
appeal denied, 592 Pa. 778, 926 A.2d 972 (2007) (upholding consolidation
of three cases against defendant for sexual assault of three minor females
because cases demonstrated defendant’s common scheme, and jury could
separate evidence for each case).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Kevin F.
Kelly, we conclude Appellant’s issue merits no relief. The trial court opinion
fully discusses and properly disposes of the question presented. (See Trial
Court Opinion, filed December 2, 2016, at 10-34) (finding: court permitted
Commonwealth to introduce only prior acts evidence Commonwealth
proposed in its Rule 404(b) motion, which related to events which occurred
within three years preceding Victim’s death; court allowed Commonwealth to
offer prior acts evidence to establish Appellant’s malice, ill will, motive,
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and/or requisite intent, including troublesome nature of relationship between
Victim and Appellant; court also permitted Commonwealth to present prior
acts evidence to show chain and sequence of events on which Appellant’s
offenses are grounded; Commonwealth’s prior acts evidence bore logical
connection to Victim’s death; court allowed Commonwealth to elicit
testimony from Tyeria Sanders concerning tumultuous nature of relationship
between Victim and Appellant, including specific arguments, Appellant’s theft
of money from Victim, and Appellant’s assaultive and menacing conduct
toward Victim; Ms. Sanders also testified as to murderous threats Appellant
made toward Victim; court permitted Commonwealth to elicit testimony from
Caren Tribble about nature of relationship Victim had with Appellant and
incidents of domestic violence between Victim and Appellant, which occurred
in two years preceding Victim’s death; Ms. Tribble testified that she saw
marks and bruises on Victim and observed domestic violence incident
between Victim and Appellant that occurred outside Ms. Tribble’s workplace
ten months prior to Victim’s death; court allowed Commonwealth to elicit
testimony from Cindy Void regarding nature of Victim’s relationship with
Appellant and incidences when Appellant took Victim’s car without
permission; court permitted Commonwealth to present testimony of Sandra
Robinson, court clerk services employee, regarding protection from abuse
(“PFA”) petitions Victim had completed and PFA orders Victim had obtained
against Appellant; court permitted Commonwealth to present testimony of
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Officer Michael DeHoratius about his encounter with Victim three weeks prior
to Victim’s death when Appellant violated PFA order by appearing at
Appellant’s home; additionally, court provided jurors with cautionary
instructions, as to limited purposes for which jury could have considered
Commonwealth’s prior acts, immediately following testimony of Ms. Sanders,
Ms. Tribble, Ms. Void, Officer DeHoratius, and Ms. Robinson; court instructed
jury to consider prior acts evidence only for purposes of Appellant’s malice,
ill will, intent, and motive, and to show chain and sequence of events leading
to Victim’s death; court specifically instructed jury not to consider prior acts
as evidence that Appellant had bad character or criminal propensities;
prejudicial effect of Commonwealth’s prior acts evidence did not outweigh
probative effect of evidence). The record supports the trial court’s rationale,
and we see no reason to disturb it. See Ballard, supra; Drumheller,
supra; Collins, supra. Accordingly, we affirm on the basis of the trial court
opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/25/2017
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Circulated 06/29/2017 02:33 PM