*1 444 A.3d 261
156 HARRIS, Appellant v. B. Francis CORRECTIONS, Com DEPARTMENT OF PENNSYLVANIA Varner, Coordinator, missioner, Wetzel, Dorina Grievance John Officer, Tracy Gilmore, Superintendent, Grievance Robert Doe, Appellees Shawley, Jane John and MAP 2016 No. 57 Pennsylvania. Supreme Court January DECIDED: ORDER PER CURIAM Order of the NOW, January, this 17th day
AND Motion re- Appellant’s AFFIRMED. Commonwealth Court of law stu- of counsel appointment appointment questing Requesting Appellant’s Motion dent assist is DENIED. Pro Tunc Nunc are DENIED. Application and Letter Appellee Pennsylvania,
COMMONWEALTH HICKS, Appellant Ray Charles No. CAP Pennsylvania. Court Supreme 13, 2016 September ARGUED: March DECIDED: *5 LaBar, Jason Allen Esq., County Defender, Monroe Public for Appellant.
Elmer D. Jr., Christine Esq., Mancuso, Michael Kim- Esq., berly Ann Metzger, Esq., Monroe County District Attorney’s Office, Amy Zapp, Esq., for Appellee.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
Justice Dougherty delivers the Opinion of the Court with respect to II I, Parts and IV and judgment announces the the Court. Justices join Todd and Mundy opinion in full. joins Chief Justice Saylor I, in Parts II and IV and judgment and files concurring opinion. Justice Baer also files a concurrence. Justices Donohue and file dissenting Wecht opinions, joins and Justice Wecht the merits portion Justice Donohue’s dissent.
OPINION JUSTICE DOUGHERTY
Appellant Ray appeals Charles Hicks from the sentence imposed by death County Monroe Court Common Pleas after a jury convicted him first-degree murder, tampering evidence, of corpse.1 abuse For following reasons, we affirm the judgment of sentence. 2502(a), 4910(1), § §
1. 18 Pa.C.S § 18 Pa.C.S and 18 Pa.C.S respectively. Background
I. Radziewicz, a 29, 2008, Corporal Jody January member On Police, of the Pennsylvania unit State of the forensic services *6 body parts crime process called to several scenes where was Route 80 in on stretches Route 380 and were discovered at 91. and Counties. N.T. At Monroe Lackawanna 11/5/14 locations, numerous troopers various recovered black these body parts ties bags containing with handle garbage blue Id. at except Surprising her woman, of a hands. 91-93. body parts fact that Radziewicz was the most Corporal severed, saw, knife or relatively probably with a cleanly were 102, 121. However, blood. Id. from at there was blood free and neck jagged cut in the shoulder area and and a where Id. at 157. The body. the rest head were severed from on the head to Route 380 from on-ramp victim’s was found Tobyhanna, yards in Monroe County, Route 423 about 83, 163. Id. at from appellant’s house. autopsy
Dr. Saralee Funk at Monroe performed Office, rape prepared; a kit County Coroner’s and was hairs, taken from footprints, other DNA evidence were and victim. Id. eventually at The victim was 198-201. identified compared as Deanna Null after dental records were and to be a match. Id. at 206. Dr. Funk’s autopsy determined timing of ambiguities stated there around the report were trauma could not ruled out until injuries,' pre-death at testing completed. N.T. 141-42. additional was 11/6/14 testing, Shortly autopsy after before additional Dr. health crisis led to her Funk serious which retire- suffered N.T. at 206-07. ment. 11/5/14 autopsy report was later reviewed and additional test- Ross, completed Wayne Dr. a forensic
ing pathologist was multiple Pennsylvania. working counties N.T. 11/6/14 face, marks and on the victim’s observing swelling 20. After due to trauma Dr. Ross this was blunt force from concluded or fist six times being hit hand at least while face with she was still alive. Id. at 28-33. pre-death Dr. found Ross also lacerations, on including the back of the victim’s head injuries, consistent struck with a being he determined were or a Dr. pipe. crowbar 34-38. Ross concluded the victim suffered least impacts seventeen different to her face and head area while she was still alive as there was swelling and hemorrhaging which would not have occurred had the victim been deceased to the trauma. Id. at Further pre- injuries torso, death were found the victim’s including all being multiple twelve ribs fractured times. Id. at 51. Dr. Ross concluded injuries these resulted from being stomped with a boot shoe. Id. at 54. Dr. Ross also found evidence the victim strangled while alive based the red-purple appearance of her face hemorrhaging the throat area. Id. at 61-64. Using process staining,” called “blood and based on blood clotting tissue, and blood around the neck Dr. Ross concluded the victim was alive when her neck and head were severed from her torso. Id. at Dr. Ross ultimately 75-90. concluded the victim’s cause death of strangulation combination *7 sharp force injury her neck. Id. at 90.2
Anthony Bullock was by police interviewed stated victim had brought appellant to his home in the Scranton area on or 25, January about 2008. Id. at 221. staying After for a hours, few appellant and the victim left Mr. Bullock’s home. This Id. was the Mr. last time Bullock saw the victim and stated she seemed nervous during visit, and withdrawn which was not like her normally outgoing demeanor. at Id. 224. Mr. Bullock appellant stated returned few hours later for looking crack cocaine without the victim. Id. at 222. Joseph McCallister police was also interviewed and told he had introduced the victim to a man for looking who was prostitutes and in in drugs January the Scranton area of 2008. Id. at 173-76. gave McCallister police description of the man and his vehicle police told the man he stated in Tobyhanna. worked at Id. 178. February 7, 2008,
On Trooper Kent Lane was on surveil- looking lance for vinyl a dark colored sedan with a roof as Donohue, dissent, conflicting 2. Justice expert notes there was testi mony regarding the manner of the victim’s and whether her death neck J., injuries pre- postmortem. Dissenting Opinion, were Donohue at 510-11, n.11, 1153-54, 156 A.3d at n.11. on Id. at 148. While traveling Route described McCallister. Trooper near the of Route Lane ob- intersection 380, at Mercury Marquis parked blue served a dark Grand Id. at 149. After Street, Prospect residence. appellant’s number, searching plate the license Lane determined Trooper Hicks,” R. was but the owner vehicle “Charles hold was on investigation regarding placed appellant while However, other leads were N.T. at 120. followed. 11/10/14 information March Shawn Hilbert received Trooper at being present appellant’s about the same vehicle residence. confirming at 153. further Charles Hicks N.T. After 11/6/14 Burleson, vehicle, Trooper Texas owner Hilbert Texas driv- Intelligence Department provided called the Hicks, for men photographs er’s license two Charles named son, who same Burleson. father and resided address Id. at 156-57. warrant and ap-
Police secured a search the vehicle proached appellant following in a lot vehicle. parking after agreed police to the Appellant go N.T. 126. 11/10/14 interview, Id. During appellant barracks interview. he as a from acknowledged prostitute knew the victim Scran- one or her on occasions ton had been with two 2008. Id. at 132. also stated he beginning Appellant January cocaine and problems addicted to crack had some alcohol. Id. However, appellant at 133. ever becoming denied violent with the victim. Id. at 146. During search from vehicle, police pair recovered blood-stained boots 63-64. There were blood also traces 21-23, trunk. seat. Id. at When asked front present passenger *8 boots, on appellant the blood he did not know about stated Id. got Appellant how it there. at then informed a 156. for his home. Id. at warrant secured search had been 157. Johnstone, a New Police Trooper dog Matthew York State handler, was called in to assist the State Police Pennsylvania of residence in their search and vehicle human appellant’s at After no N.T. there was alert to remains. 18-19. 11/7/14 appellant’s in or the of remains the vehicle exterior such Id. moved property, Trooper the house. at Johnstone inside 19. The K9 a in living alerted to room area briefcase Id. at 20-21. The the floor in of corner one basement. briefcase very map contained a detailed handwritten Scranton N.T. at 172-73. Collected from the area. 11/10/14 basement saw reciprocating was Sawzall blade and medium a length length brown at 196. N.T. Medium hairs hairs. 11/7/14 and skin particles items, also various were recovered from brush, a including bag a found inside tool scrub recovered from 43-52. part another N.T. The house. at 11/10/14 profile DNA taken the hairs on the brush were from scrub Id. at 89. match DNA profile determined victim. Five garbage bags strings, blue black with draw unused to the bags containing body parts, were identical victim’s were house. found in the attic of the N.T. 143. 11/7/14 Fingerprints bags on the from the attic garbage found The appellant. matched those N.T. 36. search 11/10/14 the home pair wrapped a human produced also hands socks, pages February newspaper Ziplock dated bags; large found access for the panel hands were inside bathroom plumbing. at 162-168. found N.T. Socks 11/7/14 appellant’s Ziplock found in the bags bedroom unused kitchen wrap were exact matches those with used hands. Id. from fingerprints the recovered at 186-189. hands those of victim. matched N.T. at 37. 11/10/14 Appellant taken mur- custody into with the der of Null. Deanna
Prior filed a trial, pursuant Commonwealth notice 404(b)(3) Pennsylvania informing Evidence appellant Rule of prior of its intention to acts through introduce evidence testimony eight whom had a women appellant sexual in prostitution-type relationship, which and/or volved the such illegal use of narcotics as crack cocaine. 404(b) Notice, Pa.R.E. at 1.3 The Commonwealth’s 3/26/10 crime, 404(b)(1) provides wrong 3. Rule "evidence act is or other prove person's admissible to character to show that order particular person occasion acted accordance character.” with the However, (2) 404(b)(1). provides Pa.R.E. subsection such rule purpose, proving “may admissible another such motive, intent, preparation, plan, identity, opportunity, knowledge, ab- *9 to to sought introduce the evidence order Commonwealth showing mo by the case buttress circumstantial intent, tive, identity any as well to rebut defense based and as on accidental death. at 1-2. The witnesses— proposed Mayfield, Denise Lakessia Roshe Cheryl Phillips, identified Lakisha Downing, Suzanne Lakisha Muhammad Wash a/k/a Hicks, Lovell, Chavez, ington, Misty Kay Karen and Sheinina testify alleged Kim to assaults on appellant’s Alston—would edged with beating, choking, and threats them included Id. The Commonwealth testi weapons. posited proposed mony part would common scheme on demonstrate in pros appellant prostitutes, engaging victimize or women substances, their addictions to satisfy titution controlled case. Id. at 1-2. present as the in the such victim 404(b) Appellant testimony a motion to Rule filed exclude and, response, the trial court ordered the Commonwealth an offer proof file each witness. Commonwealth witnesses,4 eight alleging offers of for seven proof filed of the similarities to experiences appellant striking their with bore for the all following the victim’s reasons: were women murder prostitution drug appellant, who had use with engaged using drugs with the having had admitted sex and who victim; by being were beat- primarily witnesses assaulted hands, force appellant’s en or the blunt choked with type trauma the victim was consistent with this suffered assault; edged several witnesses were threatened with injuries by edged weapons, the victim numerous suffered arising weapons; appeared out of a sexual encounter disputes many assaults, appellant to be the motive Com- relationship a sexual with the victim. having admitted 404(b) Proof, 6. The monwealth’s Offers of Pa.R.E. 4/27/11 evi- argued probative value Commonwealth its effect as outweighed unfairly prejudicial dence case mistake, criminal sence of or lack accident. In a case this evidence is outweighs probative only if of the evidence its admissible value 404(b)(2). potential prejudice.” for unfair Pa.R.E. provide proof respect 4. The did not an offer of Commonwealth Mayfield. Lakessia Roshe against appellant was based primarily circumstantial evi- dence. Id. at 7.
After subsequent briefing by
parties,
the trial court
*10
determined the
of
testimony
Alston, Lovell and Chavez was
pursuant
admissible
404(b),
Rule
while the
testimony,
Phillips, Washington,
Downing
Hicks and
was inadmissible as
cumulative, and its prejudicial
outweigh
effect would
proba-
its
tive value. Tr. Ct. Opinion,
at 15. The Commonwealth
7/14/11
filed an interlocutory appeal and appellant cross-appealed. The
trial court’s ruling was
by
affirmed
the Superior Court, and
the Commonwealth petitioned this Court for allowance of
appeal. This Court accepted review
ultimately
reversed
Superior
decision,
Court’s
remanding
the trial
for
court
further proceedings regarding
admissibility
of testimony
from the excluded witnesses Phillips, Washington, Hicks and
Downing.
Hicks,
Commonwealth v.
625 Pa.
On the trial court testimony held the of Phillips, Washington admissible, and Hicks was again ruling while testimony Downing was inadmissible. The Commonwealth ultimately presented Alston, testimony Chavez and Washington at trial. during Twice trial significant and with detail charging while the jury at the guilt close of the phase, the trial court jury instructed the the witnesses’ testimony was not offered to appellant’s character, show bad for but “very limited purpose” motive, proving intent, plan common or scheme and lack of 59-60, 88; accident. N.T. N.T. 11/7/14 at 110-12.5 11/14/14 Specifically, charging jury while guilt phase, after the the trial court stated:
Allowed testimony into evidence was certain regarding alleged instanc- es between Mr. Hicks and occurring prior alleged other women to these offenses and the offense for currently. which he is on trial The testimo- ny Alston, Alston, referring I’m to was from Ms. Ms. Kim Ms. Lakisha Washington, Misty and Ms. you Chavez. That evidence is before for a addict, living in recovering drug she was
Alston, a testified prove or very absence accident that is to an purpose, limited intent, motive, occasion evidence of and ill will this and as on mistake case, prior Evidence of Deanna Null. bad this the victim towards acts, prove or generally admissible character criminal while not including showing purposes is for other propensity, admissible crimes, wrongs, may be of other acts absence of accident. Evidence motive, intent, In prove and absence accident. other admissible words, concerning you, if is the evidence circumstances it believed may only be that Ms. Null’s death instances used infer these other consider, Also, you may you choose to if consider accidental. finding during state the course what the the evidence when mind involving part. in this victim case. intent events That's Intent prior be inferred Evidence is a that can conduct. mental state from offenses, they to the offense if are related for occurrences trial, may is So show intent. it’s which the Defendant admitted to purpose which very limited that evidence is admitted. and may narrow way by you This not be considered other other regard just I this evidence purposes stated. You must not than showing person of bad character criminal that the Defendant guilt might propensity you in this from infer case. N.T, trial, addition, during *11 at 10-12. In the court instructed 11/14/14 jury follows: as Washington in from So the that comes Ms. and Ms. evidence both you may you yesterday heard and that hear Alston—the evidence that today you only being particular purpose, offered for a and is could limited, particular very purpose, consider for and it’s and that it by you—again, you're if is which would be it evidence because believed any judging credibility you by like would other believed witness—but if you things happened to would certain unrelated this case but show that only only point it’s can be at some earlier in time. And and used offered prove or this to mistake on occasion in case an absence accident this motive, okay. and and as of Mr. Hicks’ intent words, by you, In if the is the evidence other evidence believed concern- ing may on these other occasions the circumstances of incidents accidental, only not be used to infer Ms. Null’s death was not that Hicks, that, you by As well can this it was committed Mr. as consider respect intent. evidence with So, to is, during was state the course mind events what case, you by involving Ms. the victim in this It can’t be considered Null? is, And, you may way. must not use this other and or person Hicks is a of bad character evidence to infer that Mr. might you guilt. propensity infer criminal from And, later, N.T. Again, 59-60. court further stated: at 11/7/14 jurors I to the this the same caution the same instruction and gave Washington, you that this to Ms. and Ms. witness’ as Alston may testimony, you, not be by if believed is offered not to show and regarded Hick’s bad criminal tenden- scheme, of Mr. character motive, solely prove plan or lack of cies accident, to common but perpetrator identity of the particular as to witness and this for, okay. particular crime we’re here in this trial Id. at Virginia 2006 when she on relapsed marijuana and cocaine. at During N.T. 186-87. relapse, her brought she was to 11/6/14 appellant’s home a woman named Yvette. Id. at 187. Alston provided appellant with approximately of crack worth $200 cocaine. Id. at 192. After Yvette departed, appellant and Alston argued over for the drugs. Id. As Alston ob money appellant served become very angry, argument she ended and attempted house. Id. at 192-98. Appellant leave displayed gun verbally and Alston, threatened to kill while Alston again attempted leave and to give appellant refused Id. drugs. 193, 195. more at Appellant grabbed then Alston by the throat and choked her until she was unconscious. Id. at 196. When Alston regained consciousness, appellant sit ting her, top naked, both them were appellant and had knife her throat while attempting penetrate her Id. at sexually. 199. When appellant allowed Alston house, leave the clothes; he refused to give her her Alston ran naked, out the house a neighbor clothes, gave her and she called the police. Id. Charges 198. against appellant filed were eventually dismissed when Alston appear failed to court. Id. 207. Alston testified this was the first last time she ever appellant, saw and she in recovery has been drug from since. use ever at 200.
Washington living Worth, testified she was Fort Texas 2008 when she first crack used cocaine. N.T. At 11/7/14 time, this Washington a prostitute and would offer sex drugs money. Id. at 81. One evening, to a Washington went area drug known entered ear with a man named Ronnie Hogan. Id. Washington Hogan went to the Inn Relax *12 Id. partied night all appellant. with morning The next appel- lant Hogan and left get Hogan’s the hotel to car fixed. Id. Appellant 62-63. then to Hogan returned the hotel without agreed to Washington take to get heroin. Id. at 64. Washington that, heroin, in using testified after she was and out day, consciousness all until up she woke in appel- lant’s truck on a Id. at 63-65. As parked dark property. Washington and crack in appellant truck, smoked appel- Id. at 66. Washington lant asked her to vagina. touch her “it’s like an request with the because she complied stated I give you me ... you give drugs that if unwritten rule to driving highway, appellant began back sex.” Id. When Washington at 67. As directions. Id. argued the two about vehicle, angrily grabbed by her appellant to exit the attempted Appellant inside. Id. calmed pulled her back neck Inn, Relax Washington drive allowed back down and kill her. if left the vehicle he Id. then told her she would but threat, Washington left the Notwithstanding appellant’s 68. manager, the attention of the hotel who vehicle and attracted only this was the time Washington Id. testified police. called at 69. saw Id. appellant. she ever living Arlington, Texas testified she was
Chavez at 90. appellant. when she met Id. period 2002-2003 time supporting her cocaine addiction unemployed Chavez was she was intro- Id. at 92. Chavez testified through prostitution. him a girlfriend drugs her and used with appellant duced to week, always but their encounters did couple times months of this relation- at 92-93. After several involve sex. Id. driving had an while argument and Chavez ship, appellant drugs. she was Id. at 93. Highway buying 360 about where you “I’m not can appellant, the bitch Chavez said and reached over the Appellant angry control.” Id. became console, choking Chavez until she felt she would black center out, fingernails process. Id. at cutting her skin with escape, closed it opened the vehicle door but 97. Chavez door, I’ll kill you.” after told her “Shut appellant pulled the car over and said he highway, exited the Appellant to his Id. at sorry; apartment. the two returned 95-96. apartment to leave the her own attempted Chavez When him clean vehicle, stay her to let pleaded with appellant said, “Misty, Appellant off neck. Id. at 97-98. the blood her why keep That’s I can’t I’m sick. I’ve done this before. wrong me.” Id. at 98. Chavez relationships. Something’s Finally, after this incident. Id. at stopped seeing appellant appellant a call from about Chavez testified she received Misty, “I hurt her. I hurt her.” year which he said during later *13 Id. at 101. Chavez stated she could hear a female screaming in the background during call. Id. phone
Appellant presented testimony Shane, Dr. John J. who had extensive experience forensic pathology but was certified. N.T. board at 11. Dr. Shane testified he 11/12/14 reviewed Dr. autopsy Funke’s report and concluded the vic- tim’s bruising lacerations occurred after her death. Id. at 15-33. Dr. also Shane concluded the victim’s cause of death most likely related to substance abuse and accidental. Id. at 37. At the guilt phase, conclusion jury convicted appellant of first-degree murder, tampering evidence, -with and abuse of corpse.
The Commonwealth moved to all guilt introduce phase evidence into the penalty phase, record and the trial court granted the motion with objection no from appellant. N.T. at 16. The Commonwealth jury asked the 11/17/14 find the torture aggravator, 9711(d)(8), § 42 Pa.C.S. stipulated to the mitigator significant no history, criminal 42 Pa.C.S. 9711(e)(1). § Id. at 6. Appellant introduced testimony from his which family focused their family’s history substance illness, abuse and mental as well as appellant’s depression and Id. at attempts at suicide. 46-47, 57. Appellant presented also testimony Weiss, Dr. Kenneth J. psychiatrist, who interviewed appellant and reviewed his medical history. Dr. Weiss appellant’s depression concluded caused a num- ber adverse childhood experiences, and drug his use exacer- bated depression his Id. and fueled violent behavior. 89- 92. Appellant presented testimony from several witnesses who him during interacted with his incarceration and testified he is a respected prisoner model with no disciplinary prob- 8, 10, lems. N.T. Finally, appellant 43-45. 11/18/14 introduced testimony of Dr. Carol Armstrong, a neuropsy- chologist, performed who various tests and concluded appel- lant has many cognitive impairments not occur in would a typical healthy ability individual and would affect his make good judgments. jury 20-27. The ultimately death, sentenced appellant finding aggravating factor of torture outweighed mitigating factors. claims raising motions related post-sentence
Appellant filed evidence, ineffectiveness sufficiency weight trial court’s admission counsel, challenging trial *14 his to Alston, relating Chavez Washington and testimony of it allowed the why explaining acts.6 In prior alleged on Common- part relied in court testimony, the witnesses’ (Pa. 2009), analyze to Super. A.2d Weakley, 972 wealth v. the Null’s Deanna murder similarities between the (court consid- at 1189 must factors. See id. several acts across (2) committed; “(1) the crimes in which were the manner er: (4) crime; loca- used; (3) the purpose ostensible weapons victims.”). (5) tion; type among the similarities significant
The trial court found in the attacking a woman appellant each incidents: involved behaving in the to her not reaction an immediate neck area as The court 30-31. way Opinion, he Tr. Ct. desired. 8/18/15 attacking in each used weapon noted the same was further Id. at neck, ie., hands. 31. appellant’s own around the victim crime of each was purpose the ostensible The court found con- expression attacked as identical—appellant always not location factor acknowledged The court did trol. Id. places, admissibility as the acts occurred different support consistent; the court noted Deanna type victim but all body types and were similar Null and witnesses were users, sexual interest each appellant demonstrated a drug was alone appellant the attacks occurred while woman, and prior incidents The were them. Id. court concluded with to the crime be admissible. Id. sufficiently similar to showing that, regard to common opined further The court with prove to “tends scheme, proof or of one incident plan the evidence others,” correctly jury id. and the told motive, intent, common plan be used establish could accident, scheme, identity well as and lack The details Id. at court perpetrator. 31-32. concluded insignificant details “simply other were acts various appoint motion withdraw Appellant’s counsel also filed a only The issue litigate appellant’s claims. new counsel collateral challenge by appellant appeal in Court on direct this raised 404(b) acts evidence. court’s Rule other admission trial likely that would no common perpetrated matter who crime,” the victim reiterating and the witnesses were involved use, in crack cocaine appellant had sexual relationship the victim and showed a sexual witnesses, interest of the possible causes victim’s death asphyxiation included decapitation, and appellant violently attacked all the wit- in their neck nesses area. Id. at 32-33. court post- denied sentence relief this direct appeal followed. Sufficiency
II. First-Degree of the Evidence Murder
Appellant does not challenge sufficiency of issue, evidence and did not brief the all capital but direct appeals, this Court conducts an of the independent review sufficiency evidence supporting first-degree murder conviction, if even the defendant does not the claim. See raise Commonwealth Zettlemoyer, 937, 942 Pa. *15 (to (1982) n.3 fulfill obligation review by imposed Pa.C.S. § 9711(h), shall Court of sufficiency support review ing murder, first-degree even where does not con appellant test sufficiency). The of standard suffi evidentiary review for ciency evidence, is whether the light viewed in the most favorable winner, the Commonwealth as the sup verdict ports jury’s finding the every of element the offense was proven beyond a reasonable doubt. Commonwealth v. Wat kins, 194, (2003). 577 Pa. 1203, 1211 A.2d The Common wealth may sustain this by burden wholly circumstantial evi jury dence and the all, free to or part, believe none the 204, evidence. Commonwealth v. Cousar, Pa. 928 A.2d 1025, (2007). 1032-33 “To obtain a for first-degree conviction murder, the Commonwealth must demonstrate that a human being unlawfully killed, was that the killer, defendant was the and the defendant with acted malice a specific and intent to kill.” Laird, 137, Commonwealth Pa. 988 A.2d 624-25 (2010), citing 2502(a). § 18 Pa.C.S. Specific intent and may malice through inferred evidence, circumstantial such as the use a deadly weapon on a vital part the victim’s Houser, body. Commonwealth v. Pa. 18 (2011). 1133-34 favorable to viewing light most
When victim, Commonwealth, with the record establishes sex, appellant drugs engaged badly used was whom beaten, decapitated strangled and saw blade knife Furthermore, history appellant to her prior death. had drug-addicted may violent conduct toward women who have prostitutes or with whom he otherwise had sexual been relationship. Also, person was the last seen with the appellant her found in his car disappearance, victim before blood was boots, on his walls of the victim’s hands were found in the his house other materials found the house matched the body. Although materials to discard victim’s there used conflicting expert testimony regarding was the circumstances pre- of the victim’s and whether her were death wounds testimony to believe post-mortem, jury free testimony Commonwealth witnesses and disbelieve jury’s unlawfully defense verdict that appellant witnesses. malice to kill specific killed victim with and the intent supported by not disturb the evidence record we will finding. 404(b) Crimes, Rule
III. Evidence Wrongs or Other Acts argues In only appeal, appellant briefed issue the trial court its discretion evidence of admitting abused Appellant criminal claims the allegations witnesses. analysis trial court in its mentioned erred above Weak- ley only factors similarities between because allegedly incidents and the victim’s death was appellant *16 his or neck area of all the used hands on around the women. Appellant significant there were differences between argues encounters, including: for arguing his reasons the women; relationship the location of the and his incidents (one girlfriend his the witnesses victim was while the and tjie argues others were further acquaintances). Appellant level distinguish is clearly of violence the “other acts” evidence perpetrated from on the victim. able the level violence far their similari- Appellant outweigh the dissimilarities insists
463 ties such testimony other acts prejudicial was irrelevant. 404(b)
The Commonwealth
maintains
Rule
evidence was
properly
legitimate
admitted
purpose
proving appel-
scheme,
lant’s common
identity,
and the lack
accident.
court,
argues
analyzing
Commonwealth
the trial
after
factors,
Weakley
correctly
significant
found
similarities be-
tween the crimes
against
committed
witnesses and the
victim,
murder of the
the fact the
including
witnesses were
attacked in
neck area
strangled
and the victim was
decapitated.
10-12, citing
Brief
Weakley,
Commonwealth’s
464 404(b)(1); 842, citing Pa.R.E. Arrington, 86 A.3d 715, Morris, 164, v. 426 720 493 Pa. A.2d
Commonwealth (1981) (law solely not allow use evidence which tends does has Such evidence prove disposition”). accused “criminal motive, or may lack identity, be accident show admitted 842, citing common A.3d at plan Arrington, scheme. 404(b)(2); 430, 12 Briggs, Pa.R.E. Pa. Commonwealth v. (2011) (Rule 404(b)(2) permits A.3d other acts evi motive, accident, common prove plan dence to lack identity). In crimes be scheme and order other admissible, outweigh probative potential its value must its prejudice against defendant, 404(b)(2), and unfair Pa.R.E. comparison logical a a crimes must show proffered currently charged. connection the crime between them Arrington, 86 A.3d recognized to the exception
This Court has long general inadmissibility is of other crimes evidence there where similarity—or striking logical prof a connection—between acts crime. As fered and the underlying Commonwealth, (1872), v. 72 Pa. early Shaffner the Court a connection as importance described the of such follows: crime,
It
rule
is a
that a distinct
unconnected with
general
indictment,
given
cannot
laid
be
against
presumption
It
to raise a
prisoner.
proper
ground,
crime, the
guilt,
having
committed one
on the
it
would commit anoth-
depravity
likely
it exhibits makes
he
er,
another,
To
...
make one criminal act evidence
them must
existed
the mind
connection between
have
linking
in-
actor,
together
purpose
for some
he
them
accomplish;
necessary
identify
or it must
be
tended to
actor,
that he
by connection
shows
person
must
the other.
one
have done
who committed
80, Wable, 382 Pa.
also Commonwealth v.
65. See
(1955) (there
connec
logical
must
“such
336-37
proof
naturally
crimes
of one
tend
tion
will
between the
person
accused is the
who committed
show
other”);
175, 169
564, 565
Chalfa, 313
A.
Commonwealth
Pa.
(1933) (other bad acts evidence “must show
logical
some
offenses”).
connection between the
“Sufficient commonality of
factors” between the other
underlying
incidents and the
crime
*18
the notion that
“dispels
they
merely
are
coincidental and
permits
contrary conclusion that
they
so
are
logically
connected they share a perpetrator.” Weakley, 972 A.2d at
In further explaining
logical
standard,
connection
this
“
Court has noted
‘much more is demanded than the mere
repeated
commission
class,
crimes
the same
such as
repeated burglaries or thefts. The device
must
used
be so
”
unusual
as to
distinctive
like a signature.’
be
Common
Rush,
wealth
104,
557,
(1994)
v.
538 Pa.
646 A.2d
560-61
(crimes containing uniquely similar attributes constitute a
signature),
(2d
quoting
Evidence, §
McCormick on
190 at 449
1972)
omitted).
(emphasis
Ed.
See also Commonwealth v.
Hughes,
423,
(1989) (similarities
521 Pa.
555
1264, 1282
A.2d
crimes
to insignificant
confined
details represent
signa
ture); Weakley,
(identity
This Court has consistently held there
no
abuse of
in allowing
discretion
other crimes evidence in circumstances
substantially
See,
similar
those presented here.
e.g., Com
Elliott,
(1997)
monwealth v.
Most Arrington, supra. Dennis standard Tondra dated defendant eventually had arrested Arrington years, a few but him physically emotionally series abusive incidents includ- *19 Arrington, beatings, 86 A.3d ing death threats and break-ins. a period time, was but Arrington at 837-38. incarcerated Id. at allegations. Dennis her 838. was released after recanted release, days Arrington’s Dennis found mur- Ten after was just previously from Arrington dered 357 feet the residence mother. Id. at 839. shared his linking to physical Arrington As there no evidence was largely circumstantial, murder and the case was the Common- to permitted wealth was evidence of other acts introduce involving Arrington’s families and girlfriends, three their friends, against their as well as crimes Dennis herself. Id. following presented Arring- was at 839. The trial. Victoria Dexter for time and Arrington ton’s dated some the relation- began telephone continuously follow and her Id. 843. Dexter to end ship progressed. attempted When her, Arrington threatened fire her relationship, set furniture, apartment, slashed her beat her and hit her brother Id. after Arrington with a baseball bat. incarcerated crimes, pleading paroled, to numerous but he guilty once Williams, dating whom he three times began Sandra assaulted Id. during two-year relationship. Arrington pistol- their Williams after her with a friend and whipped seeing male struck another male friend of Williams the shoulder with an axe firing gun before at him. Arrington Id. was again incarcerated, began dating release; Dennis after soon his death, after Dennis’s Arrington began dating Tanesha Jacobs. Arrington punched Id. in the smiling Jacobs face for aat group of men on a local beach and Jacobs the relation- ended ship; Arrington began stalking then her and threatening to kill her and her family until she left the country to live with her mother. Id. at 844. Arrington continued threats via telephone, brother, to kill threatening died, who Jacobs’s later when Jacobs to the returned United States for her funeral, brother’s Arrington’s stalking resumed. Shortly Id. thereafter, Arrington was arrested with Dennis’s Id. at murder.
Upon being guilty first-degree found murder and sen- death, tenced Arrington challenged the admissibility other acts on appeal direct this Court. 841. The Court held the shared characteristics of Arrington’s conduct during his other proved a relationships logical connection his prior between bad acts and the underlying charged crime of Dennis’s murder:
[The] introduced order to him “portray as a habitual criminal with a propensity violent behav- Rather, ior.” it was offered to that [Arrington] establish acted pursuant a common plan scheme. The testimony concerning [Arrington’s] treatment other girlfriends dem- repeated onstrated efforts to preserve intimate relationships harassment, through intimidation, physical violence cul- minating in of a In deadly weapon. instance, the use each *20 (1) [Arrington]: activities; his girlfriend’s daily monitored (2) resorted to his partner violence when a wanted end men; (3) relationship or interacted with other inflicted head injuries or neck fist, with his a or handgun, an edged (4) weapon; and or harmed threatened to harm members his girlfriend’s family acquaintances male that he viewed as romantic rivals. Given the shared characteristics of each relationship, purview the evidence fell within the of Pa.R.E. 404(b)(2).
468 (citations omitted). 844 further concluded the at Court
Id. reliable, relevant, guilt, and probative and case, entirely “strengthened prosecution’s consisted 844-45, at The Court also Id. circumstantial evidence. ...” jury the fact court provided on that the trial with relied limiting “comprehensive instructions.” at Arrington, the evidence Like evidence allowed about Alston, prior relationships upon with assaults and appellant’s they strikingly similar Washington and showed Chavez were surrounding his with the relationship to the circumstances death, victim, injuries, subsequent her such there her appellant: them. case logical a connection between In each (1) body similar drug-dependent was introduced to women of (2) using drugs; for showed sexual types purposes (3) women, involving in the sometimes prostitution; interest way in a when the women he resorted violence behaved (4) injuries on woman disagreeable; inflicted found each hands, edged object, her neck targeting sharp area with (5) both; kill verbally threatened to woman.7 each only required logical These similarities not establish the connection between the assaults and circumstances death, they surrounding present victim’s “virtual scheme, purposes proving common intent and signature” They insignificant are identity. not mere details crimes of class, nothing to separate the same where there distinctive from, Compare common crimes. example, them street (logical 555 at connection similarities Hughes, A.2d where represent rather insignificant are not confined details but (no Fortune, signature) logical 346 A.2d connection to separate there is other acts from nothing where distinctive crimes). common street See also 972 A.2d Weakley, (sufficient dispels factors commonality of between crimes no they permits they tion are coincidental conclusion merely rely on trial the witnesses and victim 7. We court’s observation that ("The body types. Opinion, victim similar Tr. Ct. had 8/18/15 Our body type."). three all of a similar reliance is witnesses were McCracken, misplaced, 540 Pa. Commonwealth Cf. (1995) (trial findings based on observation witnesses court’s appeal). are entitled to deference
469
are so
as to
logically
perpetrator).
share
There
connected
presented
engaged
was substantial evidence
that Deanna Null
drug
beaten,
appellant,
strangled,
sex and
use with
and
her
weapon, ultimately
had
throat cut
result
by sharp-edge
Arrington,
ing
her
beheading
only
and death. As
material
assaults
prior
difference between the
under
lying charged
typically
crime is that
violent behav
appellant's
finally
However,
ior
to a
this
progressed
fatal attack.
differ
ence
analysis leading
admissibility
does
undermine the
not
Arrington,
incidents. See
regarding
the evidence
prior
1283, citing
Hughes,
844-45. See also
555
86 A.3d at
A.2d
at
(1984)
Clayton,
Commonwealth
506 Pa.
483
1345
A.2d
(other
choking victim who was
prior
acts evidence involving
injured
to show
killed
but not
admissible
defendant
killed
victim);
(one
Weakley,
A.2d at
choking
second
1190
differ
ence
identity
between the crimes at
which fails to
issue
undo
murder).8
analysis is
other crime
not culminate in
did
logical
Where a
connection
the other crimes and
between
charged
established, as it
underlying
has been
crime
here, the
probative
court must also determine whether the
See
outweighs
value of
unfair prejudice.
the evidence
404(b)(2) (crimes,
wrongs
Pa.R.E.
other
ad-
acts evidence
missible
when
only
potential
its
value
probative
outweighs its
(other
Morris, for unfair
at 720
acts
prejudice);
probative
evidence
when
worth
tenden-
outweighs
admissible
tocy
prejudice
Obviously,
unfairly
jury).
intro-
impact
significant
ducing
of other
is
may
crimes
evidence
Fortune,
highly
However,
346 A.2d
such
prejudicial.
787.
evidence
highly probative
also
when the Commonwealth’s
case is
largely
otherwise based
circumstantial evidence.
Justice
acts
presented
8.
declares
here
Donohue
crime,”
was "not
class as
even of
same
and insists
violent,
appellant's
on a
assaults
series of women are
neck-focused
wildly
underlying
from the
kill
different
murder because he did
J.,
Dissenting Opinion,
his earlier victims.
dismember
Donohue
(internal
omitted).
recognize
quotation
marks
We
A.3d at
stronger
there
an even
would be
correlation between
the other acts
appellant's
violence
victim's death had
murder
escalated to the
witnesses,
one or
most
such
more of the
but our
recent
is clear
case law
Arrington,
perfect
required.
is not
See also
match
A.3d at 844-45.
Weakley,
972 A.2d
Arrington,
plays
(prior
IV. Review of Death Verdict
As we have determined there was sufficient evi dence to appellant’s sustain conviction for first degree murder, 404(b) and his claim regarding Rule not evidence does warrant relief, we now determine whether the death sentence was the product passion, prejudice, or any factor, other arbitrary the evidence does not support of at finding least one aggravating circumstance. Arrington, at 857, 9711(h)(3). citing § Pa.C.S. Our careful review of the record reveals the sentence product of passion, prejudice, arbitrary other factor. To contrary, sentence on properly based admitted evidence showing appellant intentionally killed the victim her cutting throat *23 with a knife. We further conclude the evidence was sufficient to support the aggravating circumstance killing by means of torture as the expert Commonwealth witnesses testified the victim severely beaten and strangled being before decapi tated while she was still alive. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
The Prothonotary of this Court is directed transmit the complete of this record case to the of Pennsylvania Governor 9711(i). § accordance with 42 Pa.C.S. join
Justices and Mundy Todd the opinion. joins Chief Justice Saylor I, Parts II of the opinion and IV and files a concurring opinion.
Justice a concurring Baer files opinion.
Justice Donohue files a dissenting opinion.
Justice files a dissenting opinion. Wecht
472 SAYLOR, Concurring
CHIEF JUSTICE join I, majority opinion II and concur I Parts and IV the result the balance. relative III, agree I that various with Justice Donohue As Part Court, decisions of a number opinions this like the majority courts, distinct incorrectly have various other blended uncharged proffered, grounds relevance associated Dissenting A.3d at Opinion misconduct. See J,) (Donohue, misunderstanding (describing “decades-long required for truly pur of connection is what type about scheme”).1 As Justice Donohue pose a common also proving conjunction, a consequence or ably either explains, substantially of this diluted majority opinions Court have least one stringent with at standard associated putatively operandi these, via modus proof identity namely, See 504, 156 Opinion 1149-50.2 theory. Dissenting (Minn. 2016) (Stras, J., Griffin, State N.W.2d 257, 268 Cf. Supreme concurring) (positing of the Minnesota majority decisions operandi common-plan similarly Court conflated the modus have acts). pertaining generally theories to other relevance David Wigmore P. Leonard, Evid. of & Similar Events New Misconduct Other (2017) [hereinafter, (explaining Wigmore] dif § Leonard, 13.5 New logical underlying the ferences the distinct bases for relevance between theories); separate operandi plan scheme id. modus and common plan (observing that courts often mix the “common scheme" § 9.2 Imwinkelried, routes); admissibility ground J. with other The Edward Admitting Uncharged Theory Plan Evidence of Defendant’s Uncharged Doc A Crimes: trine, in the Misconduct Microcosm Flaws (indicating often that courts have (1985) Mo. L. Rev. and, broadly, plan misapplied theory of more the common relevance Leonard, general); uncharged doctrine David P. misconduct Knowledge, Uncharged 81 Neb. L. Use Misconduct Prove Evidence (opining “[m]any courts ... shown have (2002) Rev. *24 tendency strong in particularly poorly reasoned decisions these toward cases”), J., (Stras, concurring) (offering Griffin, at N.W.2d 269 2. 887 Cf. analogue experience similar observation about Minnesota 404(b)). generally Pennsylvania See Rule of Evidence Leonard, New accretion, misunderstandings Wigmore (“By § can essen slow ... 13.6 already blurry improper tially line dissolve the between character operandi reasoning. Proper use of legitimate inference and modus willingness operandi depends on the fact-finder’s modus only by is accept the actor conduct that that is identified notion distinctive.”); Milich, Degrading truly S. Paul Character Rule Trials, 775, (2013) (expressing 47 Ga. American L. Rev. 778 Criminal
473 My 506, dissent Pa. Arrington, Commonwealth v. (2014), A.3d 831 reflects my that the belief threshold of uncharged use identity misconduct as evidence of should high, remain the signature-crimes accordance with analysis 496-502, by related Justice Dissenting Donohue. See at Opinion (Donohue, J.); A.3d at 1145-48 Arrington, accord 555, J., Pa. at 860-61 (Saylor, dissenting).3 86 A.3d I matter, do not the present however, view as one truly implicating identity-based theory of relevance. In this regard, Appellant’s conceded to from attorney jury outset of that Appellant the trial was in company the victim’s or that, around time that aftermath, she died and in the N.T., he her body. dismembered See Nov. at 61 (reflecting the of concession counsel that was Appellant guilty of corpse, including abuse the statements “I’m going that: tell that you Mr. Hicks put [victim’s severed] hands car”); the wall” and “threw the out of body parts id.
(“I’m her[.]”). letting know that you he dismembered The sole a claim to defense was possibility what defense ie., as “drug dumping,” Appellant may dubbed have panicked when the victim of an purportedly died accidental overdose, drug to covertly he therefore decided dispose body. her focus at trial Consequently, main injuries whether various victim pre-mortem to the were (ie., Deanna post-mortem intentionally inflicted while Null alive incurred to the incident dismemberment and disposal body).4 her history currently
view exception, uses’ known "[t]he the 'other 404(b), expansion, ultimately swallowing one of Rule is inexorable evidence.”). prohibition against all but the of the remnants character (“Because Wigmore § generally legitimacy 13.5 Leonard, 3. New operands] theory’s any given depends application [the modus case conduct, highly vety similarity uncharged on the greater similarity required much maintained.”); if is the character ban is to Cammack, Using Mark the Doctrine Chances to Prove Acquaintance Rape: People Actus Reus in Abuse Child v. Ewoldt Reconsidered, ("Similarities (1996) 29 U.C. L. Rev. Davis. many support between crimes do that are common to criminals operandi probability admission rule under the modus because the (“The high,”); greatest similarity degree recurrence is id. at 366 required prove identity.”). offered to record, Parenthetically, my position Appellant’s from review of her bruising after extensive suffered the victim occurred *25 474 case, central relevance this critical aspect
Given upon other assaults Appellant’s trial of the evidence toward that the negating women defense death went words, employed by In other the evidence was an accident. reus of the mur- to establish the actus prosecution primarily corroborating autopsy report testimony and the by der by forensic that victim’s pathologist the Commonwealth than mishap. from “homicidal violence” rather death resulted 6, Ross, N.T., 2014, (testimony Wayne at 14-90 K. See Nov. M.D.). claims clearly This focus enhanced the Commonwealth’s necessity Significantly, of and relevancy the evidence.5 moreover, logical evidence—so relevance other-bad-acts depend lack employed demonstrate accident—does Indeed, testimony expert main he offered death tenuous. that seems point flatly support in witness, of this contradicted another defense Mihalakis, M.D., strongly pathologist Isidor who forensic "[m]ultiple agreed that victim died with the Commonwealth 2014, 76; N.T., 12, injuries that in a Nov. resulted death.” traumatic (“When you bruising, you 83 so much how can see also id. at have drugs?”). [the death] attribute 681, 685, 1496, States, 485 v. U.S. 108 United S.Ct. AccordHuddleston 1499, (1988) (indicating 771 other bad L.Ed.2d that acts 99 issue, "may disputed to the the truth as to a be critical establishment especially when that involves actor’s state of mind and issue only ascertaining by drawing mental inferences means of state York, 1343, conduct”); (7th Cir. from United States v. 933 F.2d 1350 1991) ("When having affirmatively requisite the defendant denies actions, explanation govern by proffering intent an innocent for his argument, ‘Evidence of another crime ment is entitled rebut explanation for his to undermine defendant’s innocent acts tends " Margaret (quoting Jack B. Berger, A. will be admitted.’ & Weinstein (1990)), grounds § on 404[12] other overruled Evidence Weinstein’s Williams, (7th State, 1999); 626 Wilson v. F.3d Cir. Wickizer v. (Ind. 404(b) 1993) ("The exception in intent Evid. R. N.E.2d goes beyond merely denying will when be available a defendant affirmatively presents charged culpability particular a claim of intent.”); State, Wynn contrary Md. 718 A.2d J., (1998) (Raker, (collecting dissenting) proposition cases for the recognized puts have defendant forth a courts once a "[o]ther mind, premised non-culpable on innocent or state evi defense logically criminal which tends claim of dence of other acts refute the propensity basis an innocent state mind on a other than criminal value, admissible.”). heightened probative and thus becomes attains § 8.06 generally John E.B. Myers Interpersonal Myers, on Violence Evid. (2016) ("Numerous approve [the cases admission other-misconduct (footnote omitted)) injury.” rebut a claim of accidental evidence] to great a degree of similarity, as between the uncharged misconduct, as is the case under the oper- modus theory.6 andi *26 lines,
Along jurisdictions these most recognize the “doctrine of chances”—also known as the of objective “doctrine improb ability”—as theory of logical relevance that not depend does on an impermissible inference of character, and which is most greatly suited to of disproof See, accident mistake. e.g., People Spector, v. 1335, Cal.App.4th 128 Cal.Rptr.3d (2011) (“There 31, 66-67 is broad consensus that similar acts may introduced of doctrine chances rationale to prove the defendant committed an actus reus when the defendant asserts that he did not cause the ... harm.” (quoting Cammack, Using the Doctrine Chances to Prove of Actus Reus in Child Acquaintance Abuse and Rape, 29 U.C. 386)). Wigmoee Rev. Leonard, See generally L. Davis New (“The § 6.3.1 of doctrine chances theory this context has by been embraced the large number of courts and commenta (footnotes omitted)); § tors.” Application id. 7.3.2.7 of this See, Johns, 535, e.g., 312, (1986) 6. v. State 301 Or. 725 P.2d (contrasting uncharged prove use of identity misconduct to from admis- intent, prove sion explaining "rigidity” that the associated with necessity striking the theory similarity establish operandi under modus required admitting prior "is not prove when acts to intent mistake”); Leonard, lack of Wigmore § (indicating, 7.5.2 in the New course of theory logical a discussion of the "intent” of relevance—of which the treatise author considers lack of accident to be a subset—that agree charged uncharged "[a]ll acts need not be as similar to required ”); Cammack, other operandi each theory’ the ‘modus Using the Doctrine Chances to Prove Actus Reus in Child Abuse and of Acquaintance ("[T]he Rape, 29 U.C. Davis. L. alleged Rev. at 406 long conduct need not be probability unusual so as the invention low, very probative since the value the evidence derives from the improbability sources.”); of fabricated accusations from diverse Ed- Imwinkelried, ward J. Use Uncharged Evidence an Accused’s Misconduct to Prove Mens Rea: The Doctrines Engulf Which Threaten to Prohibition, (1990) the Character Evidence 51 Ohio St. L.J. 589-90 (indicting “roughly that incidents must be similar” or "fall into the ("The general category”); degree same similarity id. at 596 between uncharged great the required degree incidents need not be as as the prosecutor operandi when the theory relies on the modus prove identity."). Although rea, prove the doctrine of can chances be used to mens it reus, or, case, may apply to establish actus as in this that the victim logical process “the instinctive depends upon
principle and abnormal events are reasonably that unusual determines Everett, 250 P.3d People chance.” unlikely recur (Colo. 2010) (citing 2 John App. Wigmore, Evidence (Chadbourn 1979)). § rev. At Trials Law Common Imwinkelried, Paradox: Evidentiary J. An generally Edward by Upholding Prohibition Defending the Character Evidence Relevance, The Theory Logical Doctrine a Non-Character (2006) Chances, (explaining Rich. L. 40 U. Rev. objective improbability on the the doctrine of chances focuses coincidence). commentator, leading per As the doctrine explained by a chances: theory [as
To qualifies determine whether asserted relevance], theory logical the trial non-character-based underlying must chain of inferences judge the entire trace *27 if path the inferential theory passes The muster theory. in consequence a fact of the item of evidence and between to the require any case not inferences as defen- does personal, subjective dant’s character.
‡ n ‡ the un- not proponent [T]he does offer evidence charged inference misconduct establish intermediate subjective personal, as to the defendant’s character. Rather, proponent offers evidence establish objective many improbability befalling so accidents becoming innocently defendant or the enmeshed defendant suspicious frequently. circumstances so added; omitted); at also (emphasis footnotes see Cammack, Chances Using to Prove Actus the Doctrine of overdose, physical drug opposed died from to an accidental violence as Rath, See, (Colo. e.g., Appellant People claimed. P.3d (“Other-crimes 2002) demonstrating design common operandi prosecutions for sexual assault has been modus admitted prove prove only to who crime but that the committed Imwinkelried, occurred."). alleged actually generally sex act The L.J, Misconduct, Uncharged Use Evidence an Accused’s 51 Ohio St. 586-93; Cammack, Using at Chances to Prove Actus the Doctrine of Acquaintance Rape, 29
Reus in Abuse U.C. Davis. L. Rev. Child 384-86. Abuse Acquaintance Reus in Child 29 U.C. Davis. Rape, (explaining, L. Rev. at Wigmore’s example, famous “as if a having companion hunter shot hunting his accidental, claims that the shooting was of the defen- dant’s having fired on other occasions be- companion accident’’).8 to disprove comes the claim admissible The underlying rationale developed the doctrine is further by another character- distinguished commentator—and from reasoning—as based follows: reasoning
The theory the doctrine chances avoids the forbidden logic, permissible character-based and thus is under It logical current law. founded on inference deriving actor, personal not from the characteristics but from infer- the external circumstances themselves. on ence is probability reasoning—reasoning based informal that does not formal require proof, only statistical but jury’s subjective evaluation of on intuition likelihood based and common experience. many cases, the intuitive And assessment is rather compelling. really Could it true that person many has so received stolen vehicles without It realizing—at any they were stolen? is thus point—that for one’s possible mind to travel from to the the evidence conclusion relying reasoning without forbidden character or on assumption experience given have would defendant notice the stolen nature vehicles ob- Imwinkelried, Paradox, Evidentiary 8. See also An 40 U. Rich. L. Rev. ("By negatively discrediting hypothesis, the random chance affirmatively probability assigned hypothe- doctrine increased the Moreover, only ses. necessarily yielded since the *28 final conclusion the accidents, logically one doctrine is that or some of the incidents are not assumption person’s unchanging an of the be embed- character cannot doctrine.”); Cammack, Using ded in the the Doctrine Chances of Acquaintance Prove Actus Rape, Reus in Child Abuse 29 U.C. Davis, ("The being is proven, L. Rev. at 388-89 defendant's fact that the act, indirectly through commission of the criminal is established process possibility of elimination. the is Once of rendered accident unlikely, plausible explanation the most for the occurrence is harm’s (footnote omitted)); (“The that the caused it.” defendant at 380 id. probative of disproving value the act evidence in similar the claim of improbability innocence on of rests the non-recurrent similar events chance.”). recurring by 478 circum- or under similar particular
tained from a source stances.
Leonard, Evidence, Neb. L. Uncharged Use Misconduct 81 of 161-62; (approving see also id. doctrine-of- 167 Rev. reasoning judgment it “does not involve a chances where character, defendant’s moral and thus does about in accordance an inference that the defendant acted require revealed”).9 character so tpait on charac- general employing I restriction realize as a hall- reasoning guilt recognized ter-based establish See, Cammack, justice. of e.g., mark of American system Actus in Child Using the Doctrine Chances Prove Reus of at 357 Acquaintance Rape, Davis. L. Rev. Abuse and U.C. Anglo- as “a of (couching pillar the character evidence rule Comment, law”); Rice, A Benjamin American Z. People Reconsidering Propensity v. Simpson: Voice from Loy. Cases, L.A. L. Rev. Spousal Rule Homicide (1996) (indicating against character prohibition originated inquisitorial practices response as omitted)). (citation such as of the Never- those Star Chamber theless, the use of there remains a material difference between Cammack, Reus Using See Doctrine Chances to Actus Prove Rape, Acquaintance at 407 Child 29 U.C. L. Rev. Abuse Davis. Imwinkelried, (citing A to the n.213 Edward J. Small Contribution Proposed Legislation Abolishing Debate the Character Evidence Over Prosecutions, Syracuse L. 1136- Sex Prohibition in Rev. Offense (1993), proposition invites for the accusations evidence "similar jurors repeated objective improbability rather to focus on accusations accused”); Leonard, subjective Use Un than the character Evidence, ("Doctrine 81 Neb. L. at 162 Misconduct Rev. knowledge one reasoning on chances does not involve inference knowledge proof or more occasions. occasion from one Rather, knowledge in each occasion lessens likelihood innocent Imwinkelried, Paradox, occasion.”); Evidentiary 40 U. each other An ("The jurors does to utilize Rev. at 439 doctrine not ask L. Rich. prediction on the propensity the basis conduct defendant’s alleged Instead, jurors doctrine to consider occasion. asks assessing objective plausibility improbability of a coincidence product that he was the of an accident or defendant’s claim a loss circumstances,”). accidentally suspicious or she enmeshed Johns, (offering development generally 322-24 an extensive P.2d chances, teachings to the Professors of the doctrine of with reference Imwinkelried). Wigmore and
479 prove evidence to “general disposition” evil and advancement “the demonstrate intention of composes part the Johns, crime,” including lack of accident or mistake. 725 Burr, at United States v. (quoting P.2d 322 n.2 25 F.Cas. (C.C.D. 1807)).
54 Va. Hence, I that find of represents chances a non- doctrine of path logical character-based com reasoning sufficiently that ports with the ideals underlying Rule of as well Evidence Cammack, as its express generally Using See terms. Doctrine Chances to Prove Actus Reus in Abuse and Child of Acquaintance Rape, U.C. (characteriz 29 L. Davis. Rev. ing the doctrine as chances an “alternative non-character theory of “captures relevance” best intuition court[s’] significance regarding similarity uncharged when acts reus”). are used to prove might actus That the evidence tend demonstrate is not controlling,10 bad character itself rather, but measure implicates protective pre additional 404(b) 404(b)(2) See scribed in Rule otherwise. Pa.R.E. Cammack, Using 10. See Chances to Actus Reus in Doctrine Prove Acquaintance Rape, Child Abuse and 29 U.C. Davis. L. Rev. 357-58 (explaining governing pro- the rule "does character evidence se,” person's per scribe rather, the admission aof character but evidence,” "prohibits one use "may of the the evidence support not be used to an inference actor that because the has a particular trait—dishonesty, example—she character for acted consis- occasion”); tently trait—dishonesty—on given with that some id. ("The preclude character evidence ban does not such evi- use long being non-propensity dence as evidence is offered for a (3d purpose.”); Sampson, United States v. 980 F.2d Cir. cf. 1992) (noting governing admissibility the basic rule of charac- exclusive); nature, ter evidence is inclusive in rather than 23 C.J.S. Rights (2016) (discussing § Criminal Procedure Accused admitting additional "latitude other crimes evidence” where "[t]he purposes inclusionary examples list of in an only rule evidence are general exceptions prohibition”). to the 404(b), In quality terms of the inclusive of Rule I also note that the relatively threshold relevance under Evidence Rule of 401 is a low ("Evidence one. See tendency Pa.R.E. is relevant if ... it has probable make a fact more or less than it would be without evidence; ... consequence determining fact is of action."). Wigmore ("[B]ecause generally § 7.3.2 Leonard, New prevails minimal definition ‘relevant evidence’ that in modem evi- law, logic dence chances applied doctrine of can be to a wide situations."). variety of (“In if the only a criminal case this is admissible probative potential value of its outweighs the evidence Notably, may also secure prejudice.”). unfair the defense *30 against imper to limiting cautionary guard and instructions See, reasoning. e.g., Commonwealth missible character-based (2014) Jemison, 508, 1254, 489, (“Any 626 Pa. 1263 v. 98 A.3d use prejudice greatly mitigated of unfair by possibility to cautionary jury, directing of to the them proper instructions relevant, non- consider the defendant’s offense a [for of purpose], not defendant’s character-based as evidence crime.”). or to commit propensity bad character Cal.Rptr.3d offers a salient Spector, decision of in the chances example application the doctrine a a prosecution following shooting context of murder death There, of a the victim the defendant woman. claimed To accidentally. disprove suicide or shot committed herself chances, theories, per appel- these defense doctrine that the defen- late court sanctioned the admission evidence upon dant had armed assaults previous committed several fairly women, period within a spanning over a years, (“[T]he set of circumstances.11 65-68 evidence discrete Id. at chances, show, operation of the by doctrine tended woman, Spector, it this time who unlikelihood for gun.”). reached Johns, Oregon
In P.2d Court Supreme ap- armed the admission assaults proved previous that his in which the claimed prosecution murder defendant death One of those incidents shooting accident. wife’s six before the years wife and a former had occurred involved Wigmore 315; § 7.5.3 killing, see also Leonard, See id. New logic court, (crediting given the Johns the defense accident, for the necessity making had claimed justi- “considerably and admission easier palpable” “more that "when particular circumstances involved evidence fueled 11. The by over a who with a lack or loss woman faced control alcohol interest, him and in whom he or sexual had a romantic was alone with anger, sharp swing, Spector extreme mood exhibited underwent bidding.” gun with a she refused to do the woman when threatened Spector, Cal.Rptr.3d
[00] l—l fy). Although Oregon Supreme acknowledged Court admissibility reasonable minds could differ as of this evidence, it judge “defer[red] the veteran trial who was effect on the jury better able decide evidence’s after hearing observing many throughout witnesses Johns, lengthy 326; accord Commonwealth trial.” P.2d Hoover, (2014) 599, 610, 107 630 Pa. (stressing the deferential abuse-of-discretion applied appel standard late courts on rulings, review trial-court evidentiary per “ such determinations cannot be ‘merely disturbed be an appellate cause court have might reached different con clusion, requires but a result of [reversal] manifest unreason ableness, bias, or or partiality, prejudice, ill-will, such lack ” erroneous,’ support so as to clearly a demonstration (citations that “the law is either or misapplied” overridden omitted)). *31 (Colo. Douglas v. People, 1998),
And in
acts absence homicide, crimes, against and other crimes accident sexual words, In other the more often defendant person. reus, actus the less is the likelihood that commits the accidentally innocently.”). acted defendant no that the doctrine of chances must be question There is caution, given to associ potential applied with substantial See, e.g., with propensity-based ate the rationale inference. to Wigmore § with (explaining, 7.3.2 reference Leonard, New that, application, “[tjhough of the doctrine’s this example reasoning, it close to forbidden character-based does omitted)).13 (footnote line” One court summarized cross the as follows: cautionary advice, safeguards, and associated this commentator, Imwinkelried, At Professor Edward least one to when to allow urges deciding courts be cautious whether to prosecution rely introduce evidence of other acts and so prove chances the actus reus. This is the doctrine ad- uncharged routinely misconduct becomes “[i]f because reus, the actus there will be little left prove missible cannot prohibition” prove be used such his or charac- conformity that a her defendant acted ter. rule,
To Pro- protect against exception swallowing recommends that the trial court deter- fessor Imwinkelried the prosecution mine whether has satisfied three criteria. First, other roughly is the evidence of acts similar Second, occur- crime? does number unusual has rences in which defendant been exceed involved *32 Third, there a frequency general population? rate the is over dispute prosecution real between the and defense actus occurred? reus whether Myers Interpersonal Evid, (noting § on Violence 8.06 13. Accord logic propensity- between of non-character-based and closeness strain concluding prevailing reasoning, while view is "[s]ince based survives,” defensible, "[djefendant's remedy theory is logically limiting request cautioning jury instruction not to use "argue proof probative of character” and evidence as substantially jury outweighed by danger of value the evidence of prejudice”). and unfair confusion Everett, (Colo. People 2010) 250 P.3d App. (quoting citing Imwinkelried, The Use an Evidence Accused’s of of Uncharged Misconduct, 589-93) (internal 51 Ohio St. L.J. at omitted). citations
In present case, discussed, as previously the defense at Appellant’s trial disputed the actus reus of the murder and affirmatively claimed In response, accident. prosecution sought to admit multiple instances in which Appellant had previously attacked women circumstances bearing degree of commonality. Majority Opinion 467-68, at 156 A.3d at Although I respectfully greatly disagree but with the majority’s depiction of these incidents as “strikingly similar” to the killing Null, Ms. or as reflecting signature,” “virtual 467-69, 1127-28, id. I do find them to be “roughly similar” and as substantially “falling] into the same general category,” Imwinkelreid, The Use Evidence Uncharged Accused’s Rea, Misconduct to Prove Mens 51 Ohio St. at 589-90, L.J. along the lines of Spector and Johns cases. See generally Leonard, Use Uncharged Misconduct Evidence, (“One 81 Neb. L. advantage Rev.
doctrine of theory chances is that it does not apply only to cases which there is similarity remarkable between the uncharged acts.”); supra see also note 6. Moreover, I conclude that there were a sufficient number incidents to dispel appearance coincidence, making it likely less that accident for Appellant’s accounted undisputed involvement in the chain of giving circumstances rise to his being held account for supra murder. See notes 8-9 and accompanying text.
Notably, although the prosecution did raise the doctrine by name, chances it did observe that “the need for the other crimes evidence is high that the against case the defendant is primarily based circumstantial evidence and the defen dant has already placed issue the precise [in] cause manner the victim’s death.” Offers of Proof dated Apr. 2011, Hicks, (C.P. Monroe), Commonwealth v. No. 391-2008 ¶ added).14 at 15 (emphasis See generally Kenneth W. Graham, Leonard, Evidence, generally 14. See Uncharged Use Misconduct (observing Neb. L. Rev. at logic that doctrine-of-chance is ‘‘not *33 484 (1st 2016) (“[E]ven § 22B Fed. Prac. ed.
Jr., & Proc. Evid. unlikely, mistake cases where accident seems defense can to other such claim and door rebuttal open raise evidence.”). degree crimes To the Commonwealth's distinct, ability as court appellate is viewed has to focus affirm a as appearing valid verdict reason of record. See, Del., LLC, e.g., Dep’t Banking v. NCAS 596 Pa. Pa. (2008). 638, 653, 948 A.2d 761-62 Here, Appellant's history of violent upon attacks women that, to having be certainly probability reduced been found of a closely badly body with a whom associated bruised woman choked, is an contended had been there Commonwealth explanation for his to his innocent involvement admitted I body. Although agree with the courts dismemberment that the distinction between commentators this line reasoning and an inference impermissible propensity-based modest, I to may enough satisfy that it believe is logical to criterion and main- non-character-based relevance guard against inquisitorial-style tain the essential determina- guilt by tions of character.15 404(b) said,
That I trial requires reiterate that Rule courts “if the probative determine value of evidence outweighs 404(b)(2). In potential prejudice.” its unfair Pa.R.E. this respect, I maintain concerns about the potentially power character inferences other-acts evi- inevitable associated with ("Courts such”); always employ as labeled id. at often doctrine of such, reasoning labeling suggesting it chances without theory probably ubiquitous might is far in the cases than first more appear.”), ("[W]hile Douglas, designed 404] 15. Accord P.2d at is [Rule defendants, protect parties, especially criminal from human tenden- time, day, cy permit carry notions of character to at the same recognizes fact-finding it the difficult is better facilitated task when, unduly (citing prejudicial, if relevant admitted.” Cammack, (4th 1992)); § Strong, J.W. ed. Mccormick on Evidence Using Doctrine Chances Prove Actus Reus Child Abuse and ("The Acquaintance Rape, 29 U.C. Davis. L. at 411 n.225 doctrine Rev. improbability repeated chances focuses attention on the false accusa- against subjective person, tions same rather than the defendant's character, misuse.”); danger and therefore minimizes see supra note 13. dence, with requiring defendants effectively defend mini- trials concerning matters, collateral and about the efficacy jury instructions in this context.16 Nevertheless, Ias read *34 Appellant’s brief, argument the focus his of is upon the position high that of degree similarity is required estab- lish relevance only not operandi under modus theory, also but to demonstrate lack of accident.17 Accordingly, from my point view, of my difference position with such is enough to conclude my of review present the appeal.18
Finally, I appreciate judicial that treatment of the admission of of uncharged evidence misconduct criminal has cases subject been the of intense and sustained critical See, commentary. e.g., Milich, The Degrading Rule, Character at (“Many cases Ga. scholarly and articles have 47 L. Rev. 776 convoluted, detailed the contradictory, and aspects absurd and Milich, Rule, See 16. generally Degrading The Character 47 GA. L. REV. (positing at 789 limiting typical that nothing "the instruction offers more confusing than proper improper distinction between the and use evidence”); Sonenshein, 404(b) David A. The Misuse Rule of Courts, 215, Creighton the Issue 67, Intent 45 Federal L. Rev. 264- (2011) (discussing 270-71 concerning juror social science research misuse of evidence of non-efficacy other misconduct and asserted instructions); Reed, limiting cautionary Admitting the Accused’s History: 404(b), Criminal The Trouble With Rule 78 L. at 243 Temp. Rev. (indicating "very that few [limiting] believe that commentators instruc really tions jury’s curb the uncharged common-sense use of miscon duct”). recognize 17. I Appellant pages devotes several brief to an 404(b)’s abstract requirement discussion Rule probative to balance against prejudicial impact. value for Appellant See Brief at 8-10. He not, however, does meaningfully apply that analysis to the circum- case, including stances of reliance critical the defense on accident, suggestion of Accordingly, as with the broader themes above, aspect I noted do consider to be sufficiently developed this present for consideration. innocence, 18. In terms of presumption I observe trial that the explicitly court jury Appellant's directed apply trial to such N.T., 14, 2014, 95-96, presumption, see Nov. again, Appellant any does not offer prevailing basis to contest the assumption jurors See, charges Jemison, follow the e.g., from the court. 626 98 Pa. at Furthermore, A.3d at I note some American codes acts, liberally See, allow for the admission of e.g., F.R.E. 413(a) admission, (sanctioning cases, in sexual assault of a broad range of “that defendant committed other sexual assault”); 414(a) (same molestation). see F.R.E. child 486 rule.”); Davis, States the character United
applications “[ujncontr- 2013) (3d that, (observing 726 F.3d 441 Cir. 404(b) adoption, Rule has become the oversial at the time Reed, rule on Thomas J. evidentiary appeal” (citing cited most The Admitting History: Criminal Trouble with Accused’s Temp. (2005)). 404(b), generally Rule L.rev. 1979) (Chadbourne § H. rev. Wigmore, John Evidence cases, “bewildering variances (highlighting, survey in a jurisdictions and even the same rulings different jurisdiction”). justice It be that the would may well interests this revamping served Court consider well were See, Milich, e.g., Character present approach. Degrading Rule, (arguing the “propensity Ga. L. Rev. is an character proxy inference unreliable undesirable evidence, faithfully apply rule propensity efforts frustration”); Reed, Admitting often lead confusion *35 Temp. 250-53 History, Accused’s Criminal 78 L. Rev. (reflecting a proposal change).
Nevertheless,
our present
the fact
the matter is that
recognize
many
theories of
rules
that
non-character-based
inferences
logical
may generate
relevance
character-based
screening
prejudice
on
in-
depend
case-specific
jury
guard
to
use of
against impermissible
structions
other-acts
beyond
Again,
proceed
I find
it would
well
the
evidence.
framed,
into
present appeal,
of the
to delve further
scope
deeper
issues.19
Certainly,
approach
sharpen
I
to
support
of other courts
See,
admissibility
presently prevailing
calculus within the
framework.
Gomez,
845,
(7th
2014) (estab-
e.g., United
855
Cir.
States v.
F.3d
uncharged
lishing
protocol
miscon-
for the admission
evidence of
alia,
duct, requiring,
proponent
that the
other-act
inter
logical relevancy specifically
supporting
should address the
chain
checklist”);
directly,
straightjacket of
an artificial
"without
detailed, focused,
Davis,
(requiring
JUSTICE Concurring I agree with the majority Appellant not entitled to a new trial based his contention that the trial court erred admitting evidence acts pursuant Pa.R.E. 404(b). IWhile acknowledge evidentiary that the substantive ruling call, in this case I presents a close find unnecessary it reach In my view, that issue. it error assuming even was 404(b), admit this evidence pursuant to Rule that error was harmless under the factual predicate us. Specifically, before proved beyond its case Commonwealth reasonable doubt 404(b) admission, without the Rule and its whether not, no proper had on the I jury’s effect verdict. cannot countenance granting Appellant a new trial such cir- under Accordingly, cumstances. I in the majority’s concur decision to affirm judgment of sentence.
It is evidentiary that an erroneous ruling well-established a trial court does us to require grant where the relief error was Young, Commonwealth harmless. 561 Pa. (1999). we have Specifically, held harmless (1)
error exists where: the error not prejudice did the defen- minimis; (2) dant or the de prejudice erroneously admitted evidence cumulative other merely untainted (3) evidence; or admitted properly and uncontradicted *36 evidence of so guilt overwhelming prejudicial was that effect of the by comparison error could not have contributed 404(b), exceptions
exclusive list of set forth in Rule while contextualiz- ing logical theory the case under review as “the follows: relevance for intent,” 'prior crime’ evidence was offered is restricted to discussing any that we are not ... admissibility “[i]t follow under motive, theory opportunity, plan, knowledge identity of preparation, or any theory”). other unlisted Although certainly precision way such level was in in no observed case, present again, particularized this is on not a basis which the appeal grounded. has been
488 that explained the doctrine harm- have We verdict. “technique appellate designed review error is a
less obviating necessity economy by a judicial advance a error appellate court is trial where the retrial convinced Its is a beyond purpose reasonable doubt. was harmless that a proposition on the defendant premised well-settled one,” v. perfect trial but Commonwealth entitled a fair (citation (2012) Allshouse, 229, 163, 36 182 614 Pa. A.3d omitted). quotations internal
interlocutory ruling the trial court’s in appeal pretrial which argued it that the in evidence was order move needed forward with Appellant’s degree first prosecution. murder 311(d) Pa.R.A.P. (providing may that Commonwealth file in appeal an a criminal “from an not case order that does end entire case where Commonwealth certifies notice of appeal the order will or substantially terminate handicap prosecution.”). apparent In an effort maintain consistency position, in its the Commonwealth did not raise harmless error in the instant appeal and reiterated at oral argument this Court it before that was not pursuing harmless however, The Commonwealth’s position regard,
error. this not this from prevent examining does Court the harmless Rather, error an doctrine. the determination that error is is legal harmless determination and an court is appellate not by the Commonwealth’s concession. bound Sua sponte invocation harmless error these cir- under cumstances is consistent with undergirding both rationale principle harmless error doctrine and well-established an court can appellate any affirm valid judgment reason this appearing record. Court exercise While should restraint invoking when reason doctrine right finding where, error it sponte, harmless sua is appropriate here, the Commonwealth has demonstrated defendant’s beyond a guilt retrying reasonable doubt the defendant judicial Moreover, sponte would sua be waste resources. application capital of harmless error in a not novel. See case is Moore, error supra, (finding harmless in a case where capital trial erroneously court hearsay despite admitted evidence to assert the error Commonwealth’s failure harmless). Thus, I regardless position, of the Commonwealth’s deeming not are from precluded sponte do believe we sua our upon independent error be harmless based review below, I the record before us. For the reasons described admission prejudicial conclude that the effect 404(b) re- Rule insignificant compared maining overwhelming Appellant’s guilt such it in this did case. contribute verdict Appellant was accused both homicide case,
This far it typical. Ordinarily, from would corpse, and abuse of *38 guilty that a was of murder defendant highly suggestive be to that: the defendant the last light person was missing; multiple before she went that seen with the deceased containing her were garbage body parts dismembered bags home; garbage within miles of the that found defendant’s body those which contained her dismembered bags matching home; her the defendant’s and that parts where discovered were inside the wall of the defen- severed hands discovered However, in to closet. order a homicide dant’s bedroom avoid acknowledge trial to conviction, strategy here was Appellant’s time of that the victim around the her death and he was with in a disposed body maintain that he dismembered her overdose. N.T., she a drug after died of panic moment (counsel 11/5/2014, “I’m Appellant stating going [ ] at 61-68 corpse” Mr. Hicks of abuse you guilty tell overdose). of drug Consequent- that the victim died opining question jury for the whether ly, guilt-determinative or a drug manner of death was homicide overdose victim’s trial on whether and much of the centered there were injuries fatal indications that she sustained before she was by Appellant. dismembered presented expert
In this the Commonwealth testi- regard, alia, which, inter mony posited that the victim suffered exten- injuries sive she still alive and the manner while In homicide. the Commonwealth’s particular, her death was Wayne Dr. K. testified pathologist Ross that the victim expert death, trauma to suffered blunt force her head her crowbar, likely pipe or claw end of a hammer. inflicted that, Dr. in his N.T. at 35-42. Ross further testified 11/6/2014 homicide, view, likely was a result of a victim’s death strangulation sharp injury force her combination of 11/6/2014, at 90. neck. N.T. however, alone, testimony
Standing the Common- resolve the expert pathologist conclusively wealth’s does manner Far from of the victim’s death. regarding issue conclusion, however, Appel- contradicting Dr. Ross’s ultimate experts lant’s in fact bolstered the Commonwealth’s claim that the victim multiple suffered impacts to her body- head and while she was still alive and that the manner her death was Indeed, homicide. disagreeing while as to the nature of certain injuries, of the victim’s of Appellant’s both expert pathologists, Dr. John Shane Mihalakis, and Dr. Isidore testified as their conclusions that the manner of the victim’s death was homi- e.g., See, (cross-examination 11/12/2014, cide. N.T. at 43-45 Dr. Shane in agreed which he that he call would the victim’s homicide); N.T., death a 11/12/2014, at 76 (testimony of Dr. Mihalakis stating that the victim died of “homicidal violence” death.”).2 due “multiple injuries traumatic that resulted in Therefore, the expert testimony case, Commonwealth’s in this the victim pre-mortem suffered extensive injuries and the manner of her homicide, death was inwas fact *39 corroborated Appellant’s experts. Consequently, Appel- lant’s theory of death by drug overdose was reduced to nothing more than a bald assertion unsupported by any expert testimony. light
In of this overwhelming, uncontradicted, and indeed to the death, manner of the victim’s the Rule 404(b) testimony not to simply jury’s did contribute the verdict Rather, this case. jury’s the determination was based upon testimony the from all experts three that the manner of the victim’s homicide, death was rather than a drug overdose. Coupled with the fact that Appellant was the person last to be victim seen the before she was reported missing, that the victim’s body parts dismembered were found within miles 2. As dissenting opinion, Justice Donohue observes in her Dr. Shane initially Appellant’s drug theory testified in favor of overdose and disagreed experts with the pre-mortem Commonwealth’s as to the injuries nature of the specific victim’s and on the issue of whether there However, strangulation. was evidence apparently he abandoned this ultimately conclusion when opined he the that manner of victim’s death 11/12/14, Moreover, was homicide. See point N.T. at 44-45. at no did Mihalakas, Appellant’s expert, testify second Dr. that the victim died of Rather, drug overdose. Dr. Mihalakas testified that the victim sus- pre-mortem injuries, including tained extensive blunt force trauma alive, explicitly while she was still and the discounted that victim died N.T., 11/12/2014, drug "[wjhen of a (stating you overdose. at 83 have so bruising, you drugs?”). much how can attribute to [her death] (and Appellant acknowledged home dismem- Appellant’s victim), bags those which
bering garbage matching body parts contained her dismembered where discovered home, that the victim’s severed hands were uncovered and closet, in the wall of admitted properly his bedroom at trial sufficient establish uncontradicted evidence beyond doubt that the victim was murdered reasonable I Appellant responsible party. Consequently, was the erroneously if the conclude that even trial court admitted 404(b) evidence, prejudicial effect that evidence Rule Ap- insignificant compared remaining was therefore harmless. guilt error pellant’s to affirm majority’s I decision Accordingly, concur with judgment of sentence. DONOHUE, Dissenting JUSTICE Majority’s analysis I am from the compelled dissent my In ultimate allowance acts evidence this case. view, Majority the exceptions prohibition contorts evidence, stripping against thereby the admission bad acts (Hicks), Ray Appellant, presumption Charles Hicks of his allowing upon prior Hicks’ of innocence and conviction based violent to commit acts. propensity use of
Historically, this Court has held that bad acts strictly limited—recognizing “[i]t evidence should be that, proper presumption guilt ground raise crime, it it having committed makes depravity, one exhibits another,” commit likely person] thereby same [the would *40 relieving of its the Commonwealth constitutional burden beyond Commonwealth, a reasonable proof doubt. Shaffner 404(b)1 (1872). adopted codify 72 Pa. was our Rule to 404(b) Pennsylvania 1. Rule Evidence was in 1998 and its enacted principle basic to be with both Rule of intended Federal consistent Pennsylvania Evidence law. Pa.R.E. Order case Feb, 28, 2006, 404(b) provides: Cmt. Rule (1) crime, wrong, is Evidence a or other act not admissible prove person’s particular show that on a character order to person occasion the with the acted in accordance character. common law prohibition on the of propensity admission evi- dence while also law, as at providing, common that bad acts admissible, may be special under circumstances, to prove “motive, opportunity, intent, preparation, plan, knowledge, or lack of accident.” See Pa.R.E. identity, mistake, absence 404(b). To patrol the boundaries the prohibition between its exceptions, consistently we have required of pur- evidence portedly bad acts signature-like admissible evince either or logical similarities a true connection crime. The Majority posits that the testimony Alston, Misty of Kim Washington Chavez and Lakisha of Hicks’ probative scheme, intent, common accident, lack of identity. Majori ty Op. 467-68, 469-70, A.3d at Under guise standards, of our established in fact advancing but troubling therefrom, departure the Majority allows evidence alleged choking three incidents—bearing little relationship either this case to each proof other—as that Hicks beheaded the victim in this case with a saw blade. The Commonwealth conceded that it needed the bad acts testimo tony prove case.2 its most,
At
acts
evidence
in this
is
admitted
case
probative Hicks’ status as a drug-addicted
who,
man
when
similar,
encounters,
faced with
random
(allegedly)
has
exhibit-
violent
ed
tendencies toward women. Because the similarities
(2)
may
This evidence
purpose,
be admissible for
another
such
motive,
intent,
proving
opportunity,
preparation, plan, knowledge,
accident,
mistake,
identity,
absence
lack
(3)
crimes, wrongs,
proffered
Evidence of other
or acts
under subsec-
(b)(2)
may
only
tion
of this rule
be
upon
admitted in
case
a criminal
showing
probative
poten-
that the
value of the
outweighs
its
prejudice.
tial
404(b).
Pa.R.E.
2. The Commonwealth
argues
necessary
"the bad acts evidence was
this
circumstantial evidence
case.
evidence rebutted
defense of
accident. The evidence established a motive for the crime. The evidence
helped
identify
perpetrator
defendant as the
of the murder. The
helped
evidence also
finder
determining
fact
the defendant's
1;
intent at the time
of murder.” Commonwealth’s Brief at
see also
515-16,
infra, pp,
between the to grossly those of bad acts are insufficient establish prior com- identity, true no exist for signature, grounds proving a scheme, mon intent or lack of accident. And because the bad of a support acts do not an inference that Hicks conceived plan single, overarching encompassing each acts crime, not a testimony does demonstrate for logical showing connection motive or common purposes Therefore, I its scheme. hold that the trial court would abused to its discretion in the Commonwealth introduce allowing 404(b) evidence. to evi prohibition against propensity
Two exceptions is dence in our Bad act evidence are embedded decisional law: 1) logical if connection exists admissible between bad trial, together acts crime on them for some linking and the 2) to or purpose accomplish, the defendant intended bad from signature principles acts evince a crime. These derive our landmark decision in v. Commonwealth: Shaffner
To make one criminal act evidence of
another,
[1]
a connec-
tion
them
in the
of the
between
must have existed
mind
actor,
linking
together
purpose
them
some
he intended
accomplish;
[2]
it must be
necessary
to
identify
actor,
a connection
that he
person
which shows
who committed the
must have
the other.
one
done
added);
Pa. at 65
Shaffner,
(emphasis
Majority Op.
see
463-64, 156
provides
1125.
substantial
thus
Shaffner
link that
guidance
type
exception
will create
crime,
“general
rule that a distinct
unconnected with
indictment,
given
against
laid
cannot be
in evidence
If
Shaffner,
exists,
John from poison, Sharlock died of the same kind which Nancy, wife, died; the symptoms [defendant’s that his were hers, the same as both, that the upon [defendant] attended house; and that both died the [defendant’s Sharlock on 1871, of wife, the 17th February Nancy, and the on the 11th of substance, June 1871. In this was an offer to show that the poisoned Sharlock, as that he [defendant] also poisoned his own wife.
Shaffner, Despite 72 Pa. 65-66. some apparent similarities Sharlock, the of surrounding between circumstances the death the the of paramour’s husband, defendant’s and death the wife, defendant’s we held the evidence of Sharlock’s death required Nancy. lacked the connection to the of death It together is obvious that to connect deaths of the Sharlock latter, and Nancy, and make the former the upon they bear must have as contemplated by prisoner parts been both mind, of one in in plan taking his which the Sharlock’s life was part of his life of taking Nancy. He purpose must, therefore, contemplated Nancy have the death taking the life In order to let in before Sharlock. Sharlock, poisoning must had judge have before his mind some fact or facts this determi- exhibiting pre-existing nation to Nancy’s take life. Herein the defec- tive. that “if not (cautioning judge clearly perceive does
connection, given benefit doubt should be concluding and act prisoner,” the other evidence was inadmissible). (which
Thus, motive, plan, show or in design scheme turn intent, may identity, accident, tend to or show some absence issue), fact in it must possible other that the be conclude 988, (1938) ("Motive, intent, mistake, L. Rev. 1026 n.190 absence of Intent, plan identity really plane. are all on absence the same mistake, Motive, identity probanda. plan, facts in are issue—facta may probantia, scheme are facta tend show facta probanda.”) contemplated acts and crime were “both charged “it is parts prisoner plan of one mind” such part pur “was of his committing obvious” act It committing appear Id.4 crime. must pose” crimes, fact ... offenses, though “that the other distinct are previously of a field of part larger operation, conceived 175, 169 A. Chalfa, 313 part v. Pa. executed.” Commonwealth (1933) 65); 564, 565 Shaffner, 72 Pa. (citing see (1925) 403, Weiss, 130 A. 284 Pa. Commonwealth motive “if the act indicate the (explaining proven may defendant, plan preceding action or follow either crime, joined so ing closely of the and is commission guilty thereto he was probability as to show the received”); it charged, offense Commonwealth properly can (1971) Schwartz, 445 Pa. 285 A.2d v . *43 or for ... (excluding intent[,] design “to motive show killing” the police prior shooting officer where another police ground to believe the “give officer did sufficient being grew crime out of or in currently considered circumstances”); the see way by caused set facts and Evidence, McCormick, (2013 ed.) (cautioning § 190 7th scheme, prove the of a “each crime existence common integral should be an over-arching plan explicitly of an part defendant”). plan conceived and the Absent a executed true motive, mere similarities the bad acts and between grounds crime on trial are for admissi insufficient establish bility. “to
A of anoth- way make one criminal act evidence second [showing] he who er” is “a connection demonstrate other,” impossi- one it making must have done committed the “identify Pa. actor.” 72 person ble not Shaffner, end, for 65. To have proving identity, this we purpose acts the crime on trial must consistently the bad held uncanny similarity the details.” Com- share “an all almost (1955). Wable, 80, 334, 114 Pa. 337 382 A.2d monwealth v. on high admissibility bar based Further clarifying is acts, explained Court has that bad act our similar versa, subsequent in the Or case of act evidence. vice 497 trial, admissible to on prove accused committed the crime when the incidents are:
so nearly as to identical method earmark them as the handiwork of the much is accused. Here more demanded repeated than the mere of crimes of the commission class, same as repeated burglaries such or thefts. The devise must so used distinctive as to be unusual signature. like a Rush, 104, 557,
Commonwealth v. Pa. 646 560-61 538 A.2d (1994) Evidence, ed.) (em- McCormick, (1972 § (citing 190 2d added); phasis Bryant, Commonwealth v. 515 Pa. (1987) I”). sum, (“Bryant In where circum- surrounding
stances each of crimes demonstrate distinc- signature method, tive the connection between bad acts sufficient, and the crime on trial is allowing bad acts be evidence crime appropriate. By way example, Wable, on the defendant trial for Pitts, of Harry murder truck driver shot in who was head on July 28, asleep of his truck while the cab Wable, Pennsylvania Turnpike. A.2d at 336. trial court July 25, admitted evidence of two other crimes—a July murder shooting—both perpetrated against truck in their sleeping drivers cabs on near the In Pennsylvania Turnpike. holding that the trial court’s admis “signa sion evidence was this Court proper, articulated ture” nature of the crimes: fact, however,
Apart from that the crimes all occurred three them in day neighbor- intervals and two of the same *44 hood, striking similarity there was a in manner in the which they were committed. and Pitts were each Woodward lying against found on the seat of cab with his his head the on resting door and a pillow. Each had apparently been in the In early morning attacked hours. each instance the poked murderer his gun through had the door window in head, shot his victim the In being death instantaneous. each instance the bullet entered the head about the had angle. same In each the evidently instance was motive robbery, being actually apparently Woodward robbed but a in prevented accomplish- case Pitts getaway
hurried Shepard was robbed and purpose. ment of that his case identical in with practically detail shooting crimes, fortunate that except the other he was to led defendant’s result death. What wound did Shep- that a watch which had been stolen from arrest was pawnshop in a in Cleveland and found ard was discovered weapon there defendant. pawned have been had was identified shootings performed been all belonging as defendant. added). (emphasis method, signature
By demonstrating distinct virtue crime, each the evidence identically executed as to Wable It a connection admitted. established between properly on trial of one will “proof crime such bad acts is the who naturally person accused tend show Id.; Pa. Shaffner, crime on trial.” committed the see com- “a connection which shows that he who (indicating that other” is mitted the one must done the admissible have not neces- identity). Although show bad acts Wable did that the defendant had conceived an overarch- sarily establish truck ing plan of which the attack each driver was for or that one was committed integral purpose part, striking this that because of other, Court indicated charged, acts and the crime similarities between Wable, of a common 114 A.2d probative bad acts were scheme. (and inadvertent) perhaps conflation This erroneous signature requirement requirement proving with the opened decades-long common misunder- scheme door truly of connection is standing type required what about common purpose proving scheme. have, Wable, Indeed, many our cases since like Wable “striking showing signature-like allowed bad acts properly improperly to the crime while character similarities” prov for the izing identity purpose admissible See, Miller, e.g., scheme. Commonwealth v. ing common (1995) incorrectly, (positing, Pa. evincing signature a true are “relevant and admissi bad acts *45 scheme, ble for of purpose establishing plan the a common design embracing the commission or more two crimes so related to each other that of one proof naturally prove tends others”); 237, May, Commonwealth v. 540 Pa. 656 A.2d (1995) 1335, 1340 (equating, incorrectly, the “common scheme” “ Common exception ‘signature and the exception”); crime’ wealth v. Hughes, (1989) Pa. 555 A.2d (admitting evidence similar acts for strikingly bad showing scheme, purpose identity and common despite absence of overarching plan). an to the conflation of Contrary the requirements cases, shown in these invocation common exception scheme should be limited to circumstances plan from which a true or motive can Striking be inferred. similarities, on the hand, may other be admissible show accident, lack identity, intent or may shown by evidence of a common scheme.
In Wable contrast to the bad act evidence that clearly accused, earmarked those crimes the “handiwork” of Bryant, evidence Commonwealthv. act 531 Pa. IF’), (1992) (“Bryant merely general A.2d 703 showed similarities, the perpe- insufficient establish identity II, Bryant trator, or any permissible purpose. other In trial for elderly defendant was on the murder woman Steckle, lying ground named Edith who had been found on the home, “brutally viciously injured face, floor her Id. at 706. The trial head, court body, legs.” arms admit- testimony subsequent ted bad act attack for which about a Id. defendant had convicted. We defendant’s been vacated the judgment of new trial sentence remanded case anything we because conclude there was “un- could connecting usual” or crimes so as to “distinctive” two “that ... were same individu- prove perpetrated both al.”
Both same time of crimes occurred approximately night Appellant’s within a one and one-half block However, ages drastically, home. varied victims’ to the victims different races. Further- being addition more, as to Mrs. questionable whether the.evidence although Phillips Ms.
Steckle was assaulted sexually widely was also known that Mrs. Steckle lived assaulted. It *46 three-year-old with her alone Ms. lived son. Phillips while Furthermore, Steckle,] Phillips [unlike Mrs. Ms. Steckle], Ms. Phil- punched only in the Mrs. [Unlike head. a dragged lips Finally, to second-floor bedroom. radio, television, ring from Mrs. and were taken Steckle’s home, only in taken while dollars cash was from Ms. thirty in though a and radio Phillips portable even television were full sight burglar. II similarities Bryant
We confirmed where where differ- “any uniqueness” the crimes lack and between abound, to we hard pressed ences between will “be them Id.; that the conclude committed both crimes.” same individual also, Patterson, 374, v. 484 Pa. 399 e.g., see Commonwealth (1979) not (finding act evidence did “identical crime establish method” where involved sunglasses, pick, light-tinted attacker wielded an ice wore who raped garage victim in a bad act his while involved sunglasses, raped attacker gun, who a wore dark carried despite rapes occurring victim in an apartment, both area, commencing same late at night, alleyways); Fortune, 464 Pa. 346 A.2d Commonwealth (1975) (where ages victims different were and weapons were identical, unexplained “too ... or incon- many details are gruous say crime tends show naturally that one other”). person accused is the who committed the analysis This of our law is consistent with commenta- case 404(b) admitting who are critical of generally tors courts similarities, opposed on as to either a evidence based mere Imwinkelried, or a plan. Uncharged true signature true (2005) authorities); Evidence, (collecting § 3:24 Misconduct Evidence, (2013 ed.). McCormick, § see also 7th According Imwinkelried, proof of a number of acts similar bad may probative professional the defendant’s status as be criminal; may to show that and the similarities tend when similar, committing opportunities faced with random crime, the repeatedly roughly chooses to use defendant However, if same insuf- methodology. similarities are [i.e., signature] ficient establish modus is no there plan mind, inference of a true the defendant’s proponent offering dispo- ... character, forbidden ... sition, propensity evidence.
1 Imwinkelried, Evidence, § Uncharged 3:24 Misconduct (2005) added). (emphasis Specifically, admon- Imwinkelried justification ishes the use of scheme” “common as to admit theory unlinked pattern acts that a systematic Id, course of to a “plan.” “spurious conduct amounts Neither a nor plan commit a of similar crimes should plan” series permitted as that the committed crime accused Id.', on trial. 65-66. Shaffner, see Pa.
Signature-like for proving similarities are ab- essential *47 sence of for accident Com- they proving identity. are (2004). Boczkowski, 75, monwealth Pa. 846 A.2d Boczkowski, similarity In that remarkable explained we “the appellant’s between of were the manner in both wives of concerning one makes the circumstances killed” evidence death that the death support reasonable other’s inference “was not accidental, rather, a result appellant’s but was added). There, the deliberate act.” Id. defendant (emphasis was on for in a hot murdering trial his wife died tub. She who in good reported The her thirties health. defendant police to the getting that before tub drinking she had been argued previous and that had the Her night. he and his wife autopsy asphyxiation, drowning, revealed not from she died as the defendant court admitted suggested. had evidence concerning the defendant’s former wife’s circumstances death, wife, abuse of and we found no discretion. His former bathtub, good who died in was also in her thirties her death, At health. of his wife time former’s defendant reported had to that she police drinking had been before getting they fought night. that previous the tub and had His wife’s revealed her autopsy asphyxiation former case, cause death. In each defendant had fresh scratch marks arms, on his and torso following hands his wife’s death. similarities, act prior striking
Id. at 82. these bad Given the defendant’s was admissible mens rea evidence establish intent to rebut his claim of an accident. view that acts agrees my
The learned Concurrence or constitute a “striking must evince similarities” evidence for “signature purpose proving admitted crime” i.e., identity, person that the accused is the who committed J.) 472-73, 156 (Saylor, at Concurring Op. crime on trial. See C. 1130; Arrington, 624 Pa. A.3d at also Commonwealth v. see (2014) C.J., (Saylor, dissenting). Concluding, 86 A.3d (as not do), I acts here do present signature similar” to the circumstances sur “strikingly are case, of the victim in the Concurrence rounding death this testimony prove would also find the inadmissible to defen identity. dant’s however, would Saylor,
Chief Justice admit a much admission. anyway, upon based lower standard C.J.) 483-84, Op. at To Concurring (Saylor, 156 A.3d 1137. accident, “rough- posits the Concurrence show absence ly may similar” on a “doctrine bad acts be introduced prove committed the actus chances” rationale a defendant no reus5 when asserts actus reus occurred defendant all, harm from some victim’s because resulted instead I how innocent force. 156 A.3d at fail see acts, “roughly similar” bad the stated admission (by act murder none than purpose proving the other Hicks), allowing of Hicks’ than different propensity proof violent toward women serve as he *48 committed the crime. charged of chances allows urges
The Concurrence that the doctrine (within for the admission of similar acts the same general crime) objective as the “to the category charged establish of improbability many befalling so accidents the defendant the becoming innocently suspicious defendant enmeshed wrongful Dictionary 5. Black’s Law defines actus reus as "the deed that comprises physical generally the result of must human conduct and liability; coupled a with mens rea to establish criminal forbidden murder, killing. first-degree As to is the act of act.” the actus reus Dictionary (8th 2004). Black's Law ed. frequently.” circumstances so at 1133 (citing Edward J. Imwinkelried, An the Evidentiary Defending Paradox: Char- acter Evidence Prohibition by Upholding a Non-Character Relevance, Theory Logical Chances, The Doctrine 40 U. of of 439). Rich. L. I disagree Rev. I am strongly unper- by suaded the to Concurrence’s effort characterize the doc- trine of largely chances—in a academic terms—as “non-char- logical acter” of theory relevance. practical matter, view,
As a inis, the my merely doctrine an for admitting excuse propensity otherwise inadmissible testi- mony. Especially applied us, to the facts of the before case its threatens to application oppose swallow the I rule.6 the notion that apply stringent we should a less (“roughly simi- lar”) for admitting standard the purported evidence when purpose is to prove actus reus.
Even if I to were concede that the doctrine of chances rests upon rationale, not, I do I non-character would limit application circumstances, its to a narrow set consistent Imwinkelried, with its Citing theoretical underpinnings. recognizes, Concurrence fails at least three apply, but C.J.) important Concurring Op. limitations. See (Saylor, at 483-84, First, required degree A.3d 1136-37. similarity crime between bad acts and must place them, least, the very “the same general catego- within ry.” case, was, according Id.7 In instant victim Notably, argued 6. prosecutors "several commentators have are smuggling now inadmissible character evidence into the record Imwinkelried, guise invoking under chances.” doctrine Uncharged Use an Evidence Accused's to Prove Misconduct Mens Engulf Rea: The Which Evidence Doctrines Threaten the Character Prohibition, (1990). potential 51 Ohio St. L.J. The doctrine’s stronger given prohibition eviscerate the character evidence still reality limiting jury’s little to common- instructions do curb 404(b) perhaps sense or mis-application unconscious evidence. See C.J.) n.16, Concurring (Saylor, Op. at 1138 n.16. degree similarity discussing necessary In to achieve non- chances, application character another commentator doctrine (cited Concurrence), by explains: but Imwinkelried acts, likely physical
The closer the in the less the acts similarities pair may For example, were a car thieves coincidence. accused good they permission claim to have had belief that had take faith showing they previously Evidence had stolen a automobile. *49 504 body on her
Commonwealth, prior beaten entire severely infra, By con- note and beheaded. being suffocated 404(b) allege Hicks not inflicted trast, witnesses did the them, upon certainly trauma were any they force blunt 404(b) Moreover, witnesses, Id. as the decapitated. not of class charged not and was never attempt with Hicks did fact, inflicted the In he allegedly upon violence murder. 404(b) or on their necks witnesses—putting hand hands against to any charges not lead whatsoever throats—did Hicks, in in acts this case were not Clearly, bad admitted against one general category” perpetrated as the “the same Donahue, Pa. Commonwealth victim. Accord (1988) that, purpose (explaining through of accident acts are proving absence similar,” the must Commonwealth show “a “strikingly cases”). in both similar result obtained Donahue, on trial for in In the defendant murder which child alleged the victim was abuse. Id. death of caused of alleged allowance acts of We affirmed in over resulting “pattern the prior bruises” child abuse it was probative because body victim’s of whether same accidental, injuries charged victim the were case they claimed As defendant described were. detail herein, charged the differences bad acts and between matter crime in instant far outnumber their similarities. crime, it brutality Given the extreme cannot be injuries that the “a said same similar result obtained [all] cases,” making case from Donahue. See distinguishable this id.
A
important
limitation that
Concurrence ac-
second
is that the
chances
knowledges,
apply,
but
doctrine
fails
very
proving or disproving
little
stereo would have
inferential value in
However,
showing
had made
coincidence.
that defendants
strongly
other
indicate
similar
'mistake'
cars would
a lack
coincidence.
Lansverk,
Misconduct
Eric D.
Admission
Evidence Other
Wash
Logical
ington
to Prove
or Absence Mistake or Accident:
Intent
404(b),
L. Rev.
1230-
Rule
Inconsistencies
Evidence
Wash.
(1986) (internal
omitted).
footnote
depends
upon
having
defendant
committed the similar bad
act
indeed many more times than
frequency
“the
many times,
*50
C.J.)
rate
the general population.”8 Concurring
(Saylor,
Op.
483-84,
at
156 A.3d at
The large
1136.
and high
number
of
frequency
prior
the
give
incidents are what
any
the doctrine
claim,
tenuous,
however
to embodying a
ratio
non-character
(not
nale.
numerosity
frequency
Absent
to mention “strik
404(b)
similarities”),
ing
the proffered
support
evidence cannot
the
of
necessary
determination
“objective
improbability”
accusations,
the defendant would face
yet
similar
be
many
so
innocent
to this
476-77,
one. Id. at
at
1132-33
added).
(emphasis
Thus,
view,
in my
any
of
application
the
doctrine of chances
textbook-type
should be limited to
cases
(4th
Woods,
1973).
like United States v.
With there suffi- child cient proof that defendant had done act law forbids. when all of Only concerning the evidence the nine other collectively children and Paul is considered is the impelled conclusion probability that the all of some explained, 8. As be Imwinkelried has it must clear that "the accused has frequently typical person suffered the loss more than endures such Imwinkelried, accidentally.” losses The Use an Accused's Evidence Uncharged Misconduct to Prove Mens Rea: The Which Threat Doctrines Prohibition, Engulf L.J. en the Character Evidence Ohio St. at 591. Accordingly, highly is consider "it relevant the number losses the judge determining accused has suffered" and "if the has no basis for frequency among general popu of such occurrences accidental judge frequency genuinely lace” or "if doubt[s] ... whether the general population^]” the accused’s losses the incidence for the exceeds judge must exclude the evidence. Id. 590. deaths, seizures, cyanotic respiratory deficien- the other so accidental or attributable to natural causes was cies were some or all of the remote, the truth must be Paul and think at the hands of the defendant. other children died We abuse, one of the crime is infanticide child also that when repeated especially incidents relevant because only prove it the crime. may Woods, 484 F.2d acts in here, indisputably
Unlike
Woods were
same
as the
crime. Also unlike
general category
here,
(cyanosis)
incidents
Woods had occurred
similar
There
least
other times and led
seven other
twenty
deaths.
(as
that,
objective probability
matter of
little
as a
doubt
character),
subjective
the defendant Woods
opposed
*51
contrast,
By
act of
the
committed the criminal
infanticide.
entirely
in the
case
three bad acts admitted
instant
were
in
similarity
charged
insufficient
of
to the
crime
degree
both
in
than an
number/frequency
support anything
to
other
as to Hicks’ character.9
improper inference
A
of
application
limitation to the
doctrine
third
liability
there
some
of
chances is that
must be
disclaimer
both
charged
The
respect
prior
with
instances and
crime.
universally
almost
by
commentators cited
Concurrence
See,
Imwinkelried,
e.g.,
in these terms.
describe
doctrine
Paradox,
(explain-
An
any specific
analysis.
with
“absence
accident”
re-
spect
signature,
the existence of a common scheme or
404(b)
Majority
heavily
relies
on this Court’s
Rule
recent
Arrington,
decision Commonwealth v.
624 Pa.
86 A.3d
(2014).Arrington,
view,
my
the unfortunate culmina-
requirements
tion of
the conflation
to establish a
signature
necessary
crime
to establish
common
those
had its
plan,
genesis
scheme
conflation
Wable. See
supra,
It falls
within
p.
squarely
A.3d at 839. The court admitted evidence girlfriends, and harassed other had assaulted three physically relationship by characterizing triggered each the abuse or up him attempting interacting the woman to with break men. Id. 842. with other girlfriend Arrington former testified that had followed
One incessantly, her threatened to harm her broth- and telephoned furniture, er, set fire to her slashed threw her apartment, terrace, beatings off her belongings upon a and inflicted two Id. at 843. A upon two her ex- and brother. second attacks Arrington her girlfriend physically testified had assaulted two-year relationship, three times over course their face, separate pistol-whip- to the including punch a and two Id. head, The jaw respectively. jury to her and heard pings testimony Arrington struck additional had this woman’s male an axe and fired at her gun friend shoulder with Id. third ex-girlfriend friend’s brother. testified face, Arrington punched continually her in the harassed had her, family to kill and followed threatened her her Id. at 843-44. relationship. when she ended their A Majority of this Court “shared characteris- held daily tics of his girlfriend’s relationship”—monitoring each activities; resorting partner when his wanted violence men; inflicting or end interacted with other relationship injuries fist, or handgun edged head or neck to harm of his weapon; harming members threatening girlfriend’s family—rendered the evidence under admissible Arrington 404(b)(2), Notably, Majority Rule did similari- “signature “striking find purport method” supra, cases. ties,” from Wable departing even our line 498-99, Indeed, 1146-47. these pp. A.3d at crucial terms reason; appear opinion, good nowhere there clearly nothing signature-like Arrington’s connect dis- They violent acts. were not out in an identical parate carried Arrington fashion, Majority ostensibly as the conceded listing five Arrington employed distinct inflict methods
509 injury on his or their partners Arrington, male friends. See 86 at 844. A.3d
Instead, explained we that “in for evidence other order activity criminal to a to common admissible establish ... scheme ‘a must establish a comparison crimes ” logical connection between them.’ Com (quoting (1995)). Miller, monwealth v. Pa. Majority Arrington’s then “re Arrington concluded that to peated preserve through efforts intimate relationships harassment, intimidation, in physical culminating violence the use of a deadly weapon” plan amounted to “common a Thus, ultimately scheme.” Id. Arrington, in held we similar, acts, repeated, entirely but unconnected constitut most, women, ing, pattern of abusive toward behavior of logical necessary establish the kind connection for the purpose showing identity.10 a common scheme to establish See id. historical makes my jurisprudence As overview our clear, they Arrington do not. The were other bad acts in clearly part committing not in the defendant’s purpose Thus, holding Arrington prece- crime in charged. lacks and, veil, support very dential thin permits under propensity prove of the violent of a the crime defendant charged. For the I present same reasons dissent matter, I overrule our it Arrington would decision our departure requirements from cornerstone jurisprudential establishing plan nothing a common scheme evinces required signature purposes showing close identi C.J., dissenting) ty. Arrington, (Saylor, A.3d at 860-61 “as further law (cautioning gravitates decisional ground crimes, further from away centering signature identity/propensity distinction devolves a matter semantics”). bar, case at if
Turning there is “unusual and anything surrounding distinctive” the circumstances the victim’s about death, beaten, strangled, it is fact brutally she was noted, Arrington rely 10. As on the acts evidence Court did had, exception. Arrington’s support if a “lack it accident" Even conclusion relation- that the shared abusive characteristics ships logical establish a and the sufficed to connection between them leap crime is a from monumental the standard articulated (a case) required similarity child abuse bad act Donahue and outcomes to establish lack of accident. blade; body with a saw her decapitated and dismembered *54 along highways; in two garbage bags then strewn parts were in the wall of Hicks’ bed and her hands were found buried socks, newspaper, closet, layers in athletic wrapped room 91-93; 11/5/2015, N.T., at detergent plastic bags. and See N.T., N.T., 11/6/2014, 28-90; 11/7/2014, at at 162-68. Had that Hicks had sought to introduce evidence Commonwealth of women in a manner demon previously attacked number surrounding in strating “uncanny similarity all the details” death, as to its question would be little victim’s there Instead, at acts Wable, See 114 A.2d the bad admissibility. 337. generic with merely here share some characteristics admitted and, degree, acts each other a lesser violent simply “striking” no perpetrated against the victim. There are 336; See id. see also Boczkow “remarkable” similarities. at ski, Moreover, nothing at there is A.2d 89. “distinctive” apart acts that set them from other about the bad would I, (citing Bryant “crimes of the same A.2d at 86 class.” See Evidence, (1972 ed.)). McCormick, Indeed, § 190 2d the bad as the acts on here not even “of class” relied are the same charged crime.11See id. Ross, Although expert, Dr. testified the Commonwealth's forensic beaten, strangled, decapi was and that tated, victim was alive when she strangulation was that her cause of death a combination of and neck, 11/6/2014, 59-90, N.T., injury sharp and Hicks’ force to the Shane, bruising expert, Dr. testified that victim's and lacerations death, likely occurred after her that her cause of death was most and N.T., 11/12/2014, Notably, related to Dr. substance abuse. at 15-38. nothing [the victim] Shane testified that "there was to indicate strangled” "any while still or that there was intervention she was compression alive.” Id. at 27. He further testified that there were no injuries, fingernail signs strangu injuries, no no other “forceful body. strangulation” on at 28. He lation” or "manual the victim's Id. tongue on the consistent also testified that the bite marks victim's were overdose, drug countering they awith Dr. Ross’ conclusion that result strangulation. experts, ed is, 38. Another of Hicks’ Dr. Mihalak- from Id. at strangula Dr. there was no evidence of concurred with Shane that testified, body. "I choking tion or on the victim's See id. at 78-79. He ligature markings any any fingernail in the neck. I didn’t see did see marks, scratching neck.” 79. More I didn’t see in the Id. at over, Shane Dr. Mihalakis testified immunohisto- both Dr. Ross, analysis typically chemistry, Dr. method of forensic used tissue, unnecessary or when used on and considered unreliable live 27, 67. decomposed like that of the See id. at used on tissue victim. signature is particularly absence from apparent
extraordinarily categories broad Majority creates its strained effort required “striking elucidate the similarities.” Op. 453-54, Majority Majority 1127. The that, case, “(1) indicates each Hicks drug- introduced dependent body women similar types purposes using “(2) drugs” and a sexual women, showed interest involving sometimes prostitution.” The fact Hicks allegedly attacked is hardly women a distinctive It feature. merely narrows his victims half approximately popula- tion. That these women drug were dependent encountered Hicks in the context of drug-use and, sometimes, prostitution, unremarkable, is also given that Hicks especially was himself drug I Moreover, addicted. find no support the record the Majority’s that all statement women similar had *55 body types.12 Concurrence, post In his Justice Baer draws an ex facto conclusion that controversy Concurring Op. there was no toas the cause of death. See (Baer, 491-92, J.) recognize 156 A.3d at While I Dr. testimony may ambiguous, Shane’s be it viewed as nonetheless raised question the whether from the victim could have an overdose. The died prove, unequivocally, defendant had no burden to the victim's death resulted from an accident. had to raise only He a reasonable theory. Contrary death doubt to Commonwealth’s cause of to assertion, ambiguous testimony Justice to Baer's not tantamount Moreover, testimony. charging jury, uncontradicted See id. correctly presented jury’s considering trial court role contradicto case, ry expert testimony evidence: opinions "In this and of Dr. Shane, Ross, Dr. to with may and Dr. Mihalakis seem conflict each aspects. you other in certain If find that the conflict is more than irreconcilable, superficial, you may that the is real and conflict decide any, parts, testimony opinions you if contradictory what of the and N.T., 11/14/2014, choose to believe.” at 109. neck, setting Even aside violence inflicted the victim’s none to resembling savage come bad acts close to treatment victim, 404(b) body at issue in victim’s this case. Unlike none of the trauma, witnesses suffered blunt force let alone estimated seventeen hand, impacts by to the head inflicted fist and face a or foot said have N.T., 11/6/2014, by been suffered Unlike victim. at 27-45.
victim, 404(b) torsos, injuries none witnesses suffered to their let multiple by stomping 404(b) kicking. alone fractures to each of their ribs or And, victim, at 46-54. unlike the none of the witnesses suffered a head, crowbar, by likely pipe laceration to back of her inflicted or claw hammer. end of a Id. at 35-42. woman, tall, 12. The was approximately victim a white 5’ 7” 150-160 pounds long (Autopsy black hair. Commonwealth’s Exhibit 35 “(3) case, Hicks that, each Majority next posits The in a he way when the women behaved resorted violence (4) disagreeable; injuries on each woman inflicted found hands, edged object, sharp her neck area with his targeting (5) both; verbally each woman.” Id or threatened kill easily ap- Regrettably, descriptions these are could more crimes, maybe vast even majority to the plied violent drug-addicted arise so to crimes violence that between aside, might putting drugs Even one partners. sexual sex that a interac- safely majority violent assume substantial finding person tions in this occur as result one world Moreover, fac- as a person’s “disagreeable.” another behavior victim matter, no evidence that tual record offers way disagreeable prior in a her death Hicks found behaved kill her. verbally that he threatened to in this case far The differences attacks between the are similarities, this much than the case pronounced making more Bryant II, and Fortune Patterson Wable than more like Boczkowski. Alston, Ms. causing Hicks her allegedly choked (his) gun her and a consciousness. He with a lose threatened (hers), during pocket raped knife her the assault. He not was glass prostitute She threw table her. was trading contrary, providing not was drugs. sex To the she Hicks, upset drugs to who was that she was apparently murdered, approximately years Report). the time she she was At reveals that Ms. Alston is a black woman and record old. alleged years approximately 41 old when the incident with Hicks *56 Proof, 4/27/2011, at C occurred. Commonwealth’s Offers of Exhibit Ms, (Alston approxi Report). and was Police Chavez is a white woman Id, mately years allegedly her. at old at the time Hicks attacked (Chavez Report). Washington B Police is a black woman Ms. Exhibit years her with old at the time of encounter approximately who was (Washington Report). E Police I have discovered Id. at Exhibit Hicks. respective weights indicating heights, no in the record 404(b) Majority descriptors body types other of the witnesses. 1925(a) which, notably, cite opinion does not to to the trial court's cites it the three witnesses [sic] finds that "the anything when victims 467-68, body type.” Majority Op. similar were all of a See 31). 8/18/2015, (citing Opinion, Trial To the Court relying its own observations as to court was on extent the trial types, many years elapsed body I had would observe that witnesses’ trial, be no there would bad act incidents between
T—i CO freely in sharing supply. more her The incident occurred on Hampton, Virginia Hicks’ only home the first and occasion 2006. See met, N.T., 11/6/2014, in two at 184-200. Alston, Washington prostitute. Unlike Ms. Ms. awas She did with on allegedly drugs alleged Hicks the occasion attack, during only encounter, occurred their first and Worth, in Fort Texas 2003. Unlike the incident with Ms. Alston, Hicks not threaten a Washington gun did Ms. with knife, a but his with car. Rather than her throat grabbing his home, grabbed while in he the back her neck while never In fact, following alleged car. She lost consciousness. assault, car, she was able drive the which Hicks her allowed He told him, do. her that he someone to wanted love he but did not attempt penetrate during her the assault. He did (or else) glass not throw table she tried to anything when Although leave. allegedly he to run her threatened over with out, if she got his car he through did not follow this threat. See N.T., 11/7/2014, at 60-86. prostitute at allegedly
Ms. Chavez Hicks was time her. him seeing attacked She been times couple had a week (or weeks) every couple of for three to five months. She always that their using drugs testified her encounters involved but not Hicks always did involve sex. reportedly clean her, at the he sober time unlike his state he attacked when allegedly the other two allegedly attacked witnesses. He grabbed Ms. neck Chavez’s both while were they hands driving together. Hicks’ truck she felt like She testified she blacking say but did not she became uncon- out scious. Hicks to kill Ms. opened Chavez when she threatened ultimately pulled car door but he off road and calmed edged down. He did not throw at her or use an anything He for weapon. apologized hurting brought her and he her to finger- his clean from neck house her caused blood Their Texas in Arlington, nails. encounter 2002- occurred N.T., 11/7/2014, at 86-106. To the extent there are similarities between bad acts crime, they entirely and the are insufficient to show a identity, or lack signature purposes proving true intent way changed types body trial court know that the witnesses’ had during that time.
514 acts, do not fall infrequency The
of accident. crime, charged general category as the same purpose, their the latter heavily against admission weighs version of doctrine of if some diluted applied even we connection from which a true Moreover, required chances. is might motive be inferred absent. common scheme or than a pat- more testimony nothing is indicative admitted no from which to tern violent There is behavior. overarching plan Hicks conceived an draw inference crime, or charged acts and the any bad encompassing as “part purpose” acts he committed at 65-66. Shaffner, the victim. See 72 Pa. Neither murder Majority By nor claim otherwise. the Commonwealth admission, all, as plan own there was no Commonwealth’s a merely spontaneous reaction to Hicks’ violent behavior was Rather, it a definition of speculated disagreement. advances no requires at all but instead “common scheme” that scheme random, it is justifies long admission of unlinked acts so as crime, no similarity charged some with the possible discern or unintentional. matter how attenuated 404(b) accomplish purpose, its it must If is intended Rule light of the common strictly principles construed law it, century this Court more than underlying articulated Shaffner, Instead, Pa. 65-66. the bad acts ago. 72 See testimony precisely here was used establish what allowed 404(b) i.e., Hicks prohibits, that because had acted Rule past, women in the he was therefore violently toward three commit, far capable of, propensity and would have extensive, ultimately acts of fatal violence more brutal case, years this several later. perpetrated By the victim drawn, Majority permitting such an inference to be all but Hicks’ of innocence and the Common- presumption eliminates case, Hicks prove, guilty burden to this wealth’s Pa. Stanley, Commonwealth v. first-degree murder. See (1979). A.2d lack- completely bad act evidence Finally, admission to the is not ing in the connection crime necessary Fortune, (remanding error. harmless new trial because a jury improperly “whenever receives evi- *58 crimes, dence of other impact significant”). the is Our stan- dard harmless error is determining appellate clear. If an court “concludes beyond reasonable doubt that the error verdict,” could not have contributed the the error is harm- Mitchell, Commonwealth 258, less. Pa. 202, 576 839 A.2d (2003) Story, Commonwealth v. (citing 476 Pa. (1978)). However, A.2d “if there is a reasonable possibility that the may error have contributed to verdict, it is not harmless.” Id. The Commonwealth bears burden of establishing doubt. beyond harmlessness reasonable we will Specifically, find harmless error where: (1) the error did not or the prejudice preju- defendant minimis; dice was de
(2) the erroneously merely admitted evidence was cumula- tive of other substantially untainted evidence which was evidence; similar erroneously to the admitted (3) the properly admitted and uncontradicted evidence of guilt overwhelming was prejudicial so and the effect error so insignificant by that error comparison could not have to the contributed verdict. (1999). Young,
Commonwealth v. 166, 193 Pa. In matter, the instant the Commonwealth has re- itself peatedly argued against its case unambiguously Hicks was circumstantial and that it largely viewed the bad testimony acts as essential the elements proving first- reasonable doubt. See degree beyond murder Common- (arguing wealth’s 12-14 the “fact that the case was Brief in coupled circumstantial its with the defense of evidence being died, in which suggested accident manner the victim all warrant that the conclusion Commonwealth’s need [404(b) was, fact, see also Offer of great”); ] evidence ¶ Proof, 4/27/2011, 15 for other (arguing “the need crimes high primarily is against evidence the case [Hicks] on circumstantial evidence already based has [Hicks] placed precise issue cause and manner [sic] death”); see also Statement Pursuant to Pa.R.A.P. victim’s 1925(b), (explaining that “the of murder this proof 8/8/2011 [404(b) “[t]he ] evidence entirely
case is circumstantial” that the victim’s death jury conclude would allow assault”). the result defendant’s did no witnesses to crime and Hicks
There were 12-13. As Brief at confess Commonwealth murder. See hereinabove, strangulation decapitation whether described question. very a role in the victim’s death was much played 404(b) jury permitted the supra, note allegedly Hicks had improper inference because draw 404(b) witnesses, throat or neck injury to the inflicted her. strangled must also the victim and In he have beheaded post- fact, opinion ruling in its the trial court stated 404(b) motions “elucidate helped sentence that the *59 victim,” opposed it who as to that killed the [Hicks] 8/18/2015, As we Opinion, at 16. another. See Trial Court said Young, more is to evidence imagine “[i]t difficult as a [him] to than that which prejudicial identifies a defendant Young, 748 at 193. of a crime.” A.2d capital perpetrator of question testimony the Ms. Accordingly, there is no that Alston, Ms. Washington significantly preju- and Ms. Chavez Hicks. diced it reasons, is to that impossible
For these same conclude the 404(b) merely of evidence cumulative other untainted “was admission, the Commonwealth’s By See id. own evidence.” 404(b) it testimony, evidence to lacked sufficient absent a that reason- prove beyond Hicks caused victim’s death Moreover, doubt. did able “uncontradicted evidence” murder, committing as to Hicks overwhelmingly point corpse of to crime merely committing the abuse opposed supra, following by drug the victim’s death overdose. See note damning 11. Even most evidence— uncontradicted buried in Hicks’ that the victim’s hands were found wall—is corpse guilt consistent with Hicks’ abuse and innocence to the itself. Because murder acts its admission was far from wrongly admitted and because harmless, judgment I reverse the of sentence and would this case for a new trial. remand WECHT, Dissenting
JUSTICE
404 of
Pennsylvania
Rule
Rules of
Evidence generally
bars the
bad acts
to prove
use
a person
that
acted
with his
conduct.
previous
accordance
See Pa.R.E.
seeking
party
admission
the evidence cannot use
to
those acts or
that
convey
jury
opposing
behaviors
“X”
before,
must
he
party
have
because
has done “X”
done
many
cogently
times
Justice Donohue
before.
describes
evidence,
prejudicial impact
admitting
such
and the manner
it
obligation
Commonwealth’s
satis
diminishes
fy
proof beyond
its
a
burden
reasonable
constitutional
492,
(citing
doubt. See Diss.
Rule 404 and the its errone- significant. ous application Basic human nature and ration- are al thought logic rule very tend default toward It prohibits. well-nigh is natural and that a juror inevitable drug a person considers to be dealer told when drugs multiple in the person past, same times or that has dealt that, juror if person will has women conclude assaulted before, Although presume he do so we likely again. will instructions, jurors judge’s follow see Commonwealth trial Chmiel, (2011), it is Pa. difficult opinions naturally set aside that arise confine evidence whose inflammatory purpose nature to a limitations no thought conflict with I have processes. doubt intuitive *60 jurors capable this are this rising across Commonwealth to challenge, they so on in daily and that do basis our court- not, however, This putting rooms. does obviate the fact that aside such daunting any innate reactions is task person.
Moreover, Rule 404’s are exceptions both numerous and 404(b)(2). danger broad. This creates the See Pa.R.E. obvious that not will the rule. If courts exceptions devour do rule, to scrupulously purposes adhere terms reality. this danger becomes concerns, by
These as well as those highlighted Justice Donohue, problems that can fair taint illuminate the otherwise
518 Moreover, they incorrectly applied. 404 is
trials when Rule acts evidence must prior underscore the that bad requirement only through when passed and admitted strictly limited skillfully by Donohue. rigorous articulated Justice inquiry not satisfy inquiry. in this that evidence case does contested above, I reason, light in forth my For that concerns set that Majority’s holding from respectfully dissent the learned join in prior acts I the merits bad evidence was admissible. dissenting opinion. of Justice Donohue’s portion to a I Donohue that entitled agree with Justice Hicks is trial, Justice slightly grounds. new albeit on different Unlike Donohue, I that sufficed believe the trial evidence would have of the discovery to the trial court’s error harmless. The render in compel- victim’s severed Hicks’ walls particularly hands affirmatively has cho- ling. Oddly enough, the Commonwealth argument. this forego Throughout sen to concede and this case, Court, including argument oral the Com- before this has that acts prior monwealth insisted Hicks of the Diss. proving guilty Op. essential murder. See 509-10, (setting forth instance A.3d 1152-53 each essentiality which the Commonwealth asserted the evidence). From appeal, the outset of this the Commonwealth that, admis- has concede if this Court deemed the elected erroneous, sion of the such would not be error harmless, the evi- inasmuch as Commonwealth viewed beyond Hicks’ a reasonable necessary prove guilt dence doubt.1 case, In this never invoked the harmless error Commonwealth has might Ordinarily, question this of whether the doctrine. raise may apply invoke we it. Commonwealth must the doctrine before Generally, precedential I that Court adhere to our declaration "this may judgment harmless even if such an affirm a based on error Allshouse, argument parties.” v. is raised Commonwealth 163, (2012). However, apparent there is 614 Pa. A.3d principle tension between that the well-settled rule the "Com- demonstrating bears burden of harmless error.” Com- monwealth Chmiel, (2005). Although Pa. monwealth invocation, apply I we it believe that can the doctrine without assign party proof burden of seems inconsistent applicable only proceedings, determining appellate while simulta- party neously has without satisfied burden papy Nonetheless, way. light raising addressing the doctrine unequivocal harmless error abandonment of the Commonwealth's *61 my surprise
I confess position, Commonwealth’s discovery because the victim’s hands in buried Hicks’ powerful wall seems uniquely and itself. Other parts of victim’s body dismembered were found within proximity close to Hicks’ police residence. found blood Hicks’ and on the seat passenger boots vehicle. The victim’s DNA was located on a scrub brush found Hicks’ Moreover, fingerprints home. were from garbage recovered bags that also were found in belonged his home. The prints Hicks and the those that bags matched used dispose were If body the victim’s severed not a parts. there was mountain evidence, Although there was a formidable hill. this evi- appears dence compelling,2 captains Commonwealth its ship. consistently own And it if inscrutably has maintained enough this evidence was not Hicks convict without of the prior admission bad acts.
I would hold the Commonwealth to litigation position, its I accept believe courts should enforce party admissions concessions when It is particularly important reasonable.3 this, do so in situation such as because the Commonwealth investigated, charged, prosecuted Having prepared Hicks. trial of this case, undertaken the the Commonwealth undoubtedly understanding many has a knowledge and its far more I obtain my nuances intimate than ever could from cold detached review the paper record. has
Because Commonwealth the harmless conceded inquiry, error I for a remand the case new trial. would otherwise, I Majority respectfully Because holds dissent. here, (and should) principles be claim tension between these can resolved another case. Ross, example, pathologist, 2. There was still For one more. forensic Dr. numerous, opined injuries upon violent were the victim inflicted death, including impacts before her at least seventeen different to her strangled neck. head and Dr. Ross also determined that the victim injuries particularly while alive. Hicks still These were relevant because person was the last seen wffh the victim while she alive. generally Busanet, Commonwealth v. 54 A.3d Pa. claim, (2012) (rejecting part, ineffective assistance counsel because legal appellant's point). concession of a relevant notes are dissenting opinion, As there Justice Wecht incompatible from this Court seemingly pronouncements two burden to raise respect to the Commonwealth’s harmless Traditionally, held that we have Commonwealth error. doubt an error was beyond must reasonable establish See, 271, e.g., Mayhue, v. 536 Pa. harmless. Commonwealth (1994). however, 421, recently, this Court More A.2d recognized a judgment has that we affirm based may if that not raised argument error even harmless ability “an has appellate Commonwealth because court judgment appearing verdict reason as valid affirm 619, Moore, Commonwealth 594 Pa. record.” v. A.2d Allshouse, (2007); also, supra (finding see right confronta violation defendant’s constitutional tion failure to despite harmless the Commonwealth’s raise Thus, on appeal). ordinarily error argument harmless while has the it persuasion1 when Commonwealth burden harmless, sua sponte asserts that a error was particular not inappropriate invocation the harmless error doctrine is judgment of nothing as it more than a valid affirm does sentence on alternative basis. admissibility of the that, seeking I Rule appreciate 404(b) case, this Commonwealth filed an regard law in this states that 1. While much the case Common view, proof,” my accurately is more it wealth has a “burden See, e.g., persuasion, Commonwealth Enim burden described (2014) concurring) (Saylor, J. pah, 630 Pa. addressing (noting imprecise when burdens of are often that courts proof observing proof is sometimes used to the term burden of (citation omitted). persuasion) refer to the burden of