J-S31019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    KAINE A. FOWLER

                             Appellant               No. 1389 WDA 2018


       Appeal from the Judgment of Sentence Entered September 5, 2018
                 In the Court of Common Pleas of Mercer County
               Criminal Division at No.: CP-43-CR-0000872-2017


BEFORE: OLSON, STABILE, and McLAUGHLIN, JJ.

MEMORANDUM BY STABILE, J.:                       FILED AUGUST 27, 2019

        Appellant Kaine A. Fowler appeals from the September 5, 2018

judgment of sentence entered in the Court of Common Pleas of Mercer County

(“trial court”), following his jury conviction for first-degree murder.1   Upon

review, we affirm.

        The facts and procedural history of this case are undisputed. Briefly,

following a recorded, wiretapped confession to Dustin Socci, a jailhouse

informant, Appellant was charged with first-degree murder in connection with

the June 19, 2016 shooting death of Troy Hall (the “victim”) in Sharon,

Pennsylvania.      On August 20, 2018, prior to the commencement of trial,

Appellant’s counsel made an oral motion in limine seeking to preclude, under

Pa.R.E. 404(b), the Commonwealth from introducing into evidence any

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1   18 Pa.C.S.A. § 2502(a).
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reference to Appellant’s “prior bad acts” as detailed in the wiretap recording

of his conversation with the jailhouse informant. N.T. Hearing, 8/20/18, at 3.

The trial court denied the motion in limine, noting it would provide a cautionary

instruction to the jury. Id. at 5-6. The case proceeded to trial, at the start

of which the trial court instructed the jurors to disregard any references to

Appellant’s “bad acts from his past.” N.T. Trial, 8/21/18, at 7-8. The trial

court explained “the Commonwealth is not introducing this evidence as

evidence of [Appellant’s] character. In fact, you may not consider any of this

evidence as proof of [Appellant’s] character or his credibility.” Id. at 7. In

addition to the multitude of witnesses, the Commonwealth called to the stand

Mr. Socci, the jailhouse informant to whom Appellant confessed. During Mr.

Socci’s testimony, the Commonwealth played for the jury the wiretap

recording of Mr. Socci’s conversation with Appellant. See N.T. Trial, 8/22/18,

at 78.

         Following the Commonwealth’s case in chief and based on the testimony

of several witnesses who observed Appellant drinking alcohol on the night of

the murder, Appellant made an oral motion to amend the criminal information

to include a count for third-degree murder and sought an instruction on

voluntary intoxication vis-à-vis third-degree murder. N.T. Trial, 8/23/18, at

58-60. The trial court granted the motion to amend. Id. at 60.

         Appellant did not offer any witness testimony. Instead, at the close of

evidence, Appellant orally moved for judgment of acquittal, which the trial

court denied. N.T. Trial, 8/24/18, at 9. The jury ultimately found Appellant

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guilty of first-degree murder, but did not return a verdict on the third-degree

murder charge. On September 5, 2018, the trial court sentenced Appellant

to life imprisonment without the possibility of parole. Appellant did not file

any post-sentence motions. On September 26, 2018, Appellant appealed to

this Court.    The trial court directed Appellant to file a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal. Appellant complied, raising the

following two assertions of error:

      [I.] That the trial court abused its discretion by denying
      [Appellant’s] motion in limine regarding the introduction of
      evidence of prior bad acts in the form of wiretap recordings and
      such evidence was more prejudicial than probative.

      [II.] That the evidence introduced at trial was sufficient to
      establish a voluntary intoxication defense negating the intent
      element for first degree murder and, therefore, [Appellant] could
      only be found guilty of third degree murder.

Rule 1925(b) Statement, 10/18/18, at ¶¶ 1-2 (unnecessary capitalization

omitted).     In response, the trial court issued a Pa.R.A.P. 1925(a) opinion,

concluding that Appellant’s issues did not merit relief.          With respect to

Appellant’s first assertion of error, the trial court observed:

      Without [Appellant] specifically referencing which bad acts were
      more prejudicial than probative, [the trial court] has reviewed the
      transcript of the wiretap in order to ascertain what [Appellant]
      considers to be prior bad acts. The first bad act pertains to
      [Appellant] having sexual relations with women in front of [the
      victim]. This bad act is admissible to prove motive. It is more
      probative than prejudicial because, according to [Appellant], [the
      victim] was very insecure about women, and he frequently
      complained to [Appellant] about his inability to find an intimate
      partner. Essentially, by having sex in front of [the victim],
      [Appellant] was taunting [the victim] with his sexual prowess.


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      When this was no longer amusing to [Appellant], he became
      “irked” at [the victim].

            The second bad act involves an incident that occurred
      between [Appellant] and [the victim]. Although the incident did
      not become a physical altercation, [Appellant] did challenge [the
      victim] to come outside and fight. According to [Appellant], the
      incident occurred because [the victim] “ran his mouth.” [The
      victim] refused to engage [Appellant] in a fight. According to
      [Appellant], [the victim] cried instead. [Appellant] went on at
      length about what he would have done to [the victim] had the
      fight become physical. This prior bad act is admissible to prove
      intent.    It is more probative than prejudicial because it
      demonstrates [Appellant’s] willingness [to] use violence on [the
      victim] when [the victim] “irked” him.

Trial Court Opinion, 1/2/19, at 1-2 (record citations and unnecessary

capitalization omitted).     Addressing Appellant’s second issue regarding

voluntary intoxication, the trial court concluded that “[a]lthough there was

evidence of [Appellant] drinking during the night of the murder, there was

absolutely no evidence that his alcohol consumption overwhelmed or impaired

him to the point of losing his faculties or sensibilities.” Id. at 2.

      On appeal, Appellant repeats the same two issues for our review, which

we shall address seriatim.

      It is well-settled that a trial court’s grant or denial of a motion in limine

is subject to an abuse of discretion standard of review. See Commonwealth

v. Sherwood, 982 A.2d 483, 495 (Pa. 2009) (“The admissibility of evidence

is a matter for the discretion of the trial court and a ruling thereon will be

reversed on appeal only upon a showing that the trial court committed an

abuse of discretion.”).    “An abuse of discretion is not merely an error of

judgment; rather discretion is abused when the law is overridden or

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misapplied, or the judgment exercised is manifestly unreasonable, or the

result of partiality, prejudice, bias, or ill will, as shown by the evidence or the

record.” Commonwealth v. Antidormi, 84 A.3d 736, 745 (Pa. Super. 2014)

(citation omitted), appeal denied, 95 A.3d 275 (Pa. 2014); accord

Commonwealth v. Trinidad, 96 A.3d 1031, 1036 (Pa. Super. 2014). Similar

to other pretrial motions, such as suppression,2 when an appellant challenges

the grant or denial of a motion in limine, our scope of review is limited to the

relevant pretrial hearing transcripts. See In re Interests of L.J., 79 A.3d

1073, 1088-89 (Pa. 2013) (noting that our scope of review is limited to the

evidence presented at the pretrial hearing).           Moreover, generally “it is

inappropriate to consider trial evidence as a matter of course, because it is

simply not part of the [pretrial] record, absent a finding that such evidence

was unavailable during the [pretrial] hearing.” Id. at 1085.

       Evidence is relevant if it logically tends to establish a material fact in the

case, tends to make a fact at issue more or less probable, or supports a

reasonable      inference     or    presumption   regarding    a    material    fact.

Commonwealth v. Spiewak, 617 A.2d 696, 699 (Pa. 1992). Once evidence

is found to be relevant and probative, it is inadmissible only if its probative

value is substantially outweighed by the danger of unfair prejudice to the

defendant.     Commonwealth v. Lilliock, 740 A.2d 237, 244 (Pa. Super.
____________________________________________


2 In Commonwealth v. Gordon, 673 A.2d 866 (Pa. 1996), our Supreme
Court noted that “[t]here is no essential difference between suppression
rulings and rulings on motions in limine to admit or exclude evidence.”
Gordon, 673 A.2d at 868.

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1999) (citing Commonwealth v. Foy, 612 A.2d 1349 (Pa. 1992), appeal

denied, 795 A.2d 972 (Pa. 2000)).

      Rule 404(b), relating to character evidence, crimes and other acts,

provides in relevant part:

      (1) Prohibited Uses. Evidence of a crime, wrong, or other act is
      not admissible to prove a person’s character in order to show that
      on a particular occasion the person acted in accordance with the
      character.

      (2) Permitted Uses. This evidence may be admissible for another
      purpose, such as proving motive, opportunity, intent, preparation,
      plan, knowledge, identity, absence of mistake, or lack of accident.
      In a criminal case this evidence is admissible only if the probative
      value of the evidence outweighs its potential for unfair prejudice.
      (3) Notice in a Criminal Case. In a criminal case the prosecutor
      must provide reasonable notice in advance of trial, or during trial
      if the court excuses pretrial notice on good cause shown, of the
      general nature of any such evidence the prosecutor intends to
      introduce at trial.

Pa.R.E. 404(b)(1), (2), and (3).       In addition, other crimes evidence is

admissible “where the acts were part of a chain or sequence of events that

formed the history of the case and were part of its natural development.”

Commonwealth v. Green, 76 A.3d 575, 583 (Pa. Super. 2014).                   When

offered for one of these legitimate purposes, prior bad act evidence is

admissible if its probative value outweighs its potential for “unfair prejudice.”

Commonwealth v. Hairston, 84 A.3d 657 (Pa. 2014); see also Pa.R.E.

404(b)(3).   Unfair prejudice means “a tendency to suggest decision on an

improper basis or to divert the jury’s attention away from its duty of weighing

the evidence impartially.”   Commonwealth v. Tyson, 119 A.3d 353, 360


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(Pa. Super. 2015) (en banc). The court “is not required to sanitize the trial to

eliminate all unpleasant facts from the jury’s consideration where those facts

are relevant to the issues at hand and form part of the history and natural

development of the events and offenses for which the defendant is charged.”

Id. Moreover, a cautionary instruction can ameliorate the prejudicial effect of

the proffered evidence, because jurors are presumed to follow the court’s

instructions. Id.

      Appellant argues that the trial court abused its discretion in denying his

motion in limine seeking to prevent the Commonwealth from introducing

evidence of his prior bad acts as contained in the wiretap recording because

such evidence is irrelevant. See Appellant’s Brief at 15.

      At the outset, we agree with the trial court’s observation that Appellant

has failed to identify, at any point before the trial court, any specific bad acts

that he sought to exclude from the wiretap recording. See Trial Court Opinion,

1/2/19, at 1 (Appellant did not specifically reference “which bad acts were

more prejudicial than probative”).     To the extent Appellant identifies any

specific bad acts, he does so for the first time on appeal by incorporating and

adopting the two instances that the trial court managed to decipher from the

wiretap transcript: one relating to Appellant having sexual relations in front of

the victim and the other relating Appellant’s invitation to the victim to fight




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Appellant. Although we could dismiss Appellant’s first issue based on waiver,3

we decline to do so.
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3 Rule 1925 requires an appellant to comply with a trial court’s order to file a
statement of errors complained of on appeal; any issues not raised in such
statement will be deemed waived. Commonwealth v. Lord, 719 A.2d 306,
309 (Pa. 1998). Rule 1925 expressly provides that “[t]he Statement shall
concisely identify each ruling or error that the appellant intends to challenge
with sufficient detail to identify all pertinent issues for the judge.” Pa.R.A.P.
1925(b)(4)(ii) (emphasis added). This Court has emphasized that “[w]hen
the trial court has to guess what issues an appellant is appealing, that is not
enough for meaningful review.” Commonwealth v. Smith, 955 A.2d 391,
393 (Pa. Super. 2008) (en banc) (citation omitted); see Commonwealth v.
Williams, 959 A.2d 1252 (Pa. Super. 2008) (finding the appellant waived his
challenge to the trial court’s denial of his request to suppress evidence
obtained in the search of his residence due to the vagueness of the appellant's
concise statement). Instantly, Appellant plainly violated Rule 1925. As
detailed above, Appellant raises for the first time on appeal, i.e., in his
appellate brief, specific bad acts contained in the wiretap recording, references
to which he sought to have excluded at trial. See Pa.R.A.P. 302(a) (“Issues
not raised in the lower court are waived and cannot be raised for the first time
on appeal.”). Moreover, other than adopting the two instances of bad acts
identified by the trial court, Appellant does not develop any cogent argument
with citation to the record and legal authority explaining how the trial court
abused its discretion in denying his motion in limine. See Pa.R.A.P. 2119(a)
(stating that the argument section of the parties’ briefs “shall be divided into
as many parts as there are questions to be argued; and shall have at the head
of each part—in distinctive type or in type distinctly displayed—the particular
point treated therein, followed by such discussion and citation of authorities
as are deemed pertinent.”); Commonwealth v. Johnson, 985 A.2d 915, 924
(Pa. 2009), (“[W]here an appellate brief fails to provide any discussion of a
claim with citation to relevant authority or fails to develop the issue in any
other meaningful fashion capable of review, that claim is waived.”) (citation
omitted), cert. denied, 562 U.S. 906 (2010); see also Commonwealth v.
Murchinson, 899 A.2d 1159, 1160 (Pa. Super. 2006) (deeming appellant’s
claims waived under Pa.R.A.P. 2119(a) because he did not develop meaningful
argument with specific references to relevant case law and to the record to
support his claims); Commonwealth v. Heilman, 867 A.2d 542, 546 (Pa.
Super. 2005) (recognizing that failure to provide “such discussion and citation
of authorities as are deemed pertinent” may result in waiver);



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       Instead, we review the two instances of bad acts the trial court identified

and Appellant adopted.         Based on our standard of review, and given the

circumstances of this case, we conclude the trial court did not abuse its

discretion in denying Appellant’s motion in limine. As the court found, the two

instances of prior bad acts were admissible under the motive and intent

exceptions to Rule 404(b)(1) to establish that Appellant murdered the victim

because the victim irked him. With respect to Appellant having sex in front of

the victim, Appellant did so to taunt the victim with his sexual prowess,

knowing that the victim “was in love” with the woman with whom he had sex,

was very insecure about women generally, and frequently complained to

Appellant about his inability to find an intimate partner.         N.T. Wiretap,

1/30/17, at 4-5. As for the second instance where Appellant challenged the

victim to a fight, it was relevant to establish Appellant’s intent because

Appellant described in detail what he would have done to the victim had the

victim fought him. Appellant remarked, “[If the victim] would have stepped

outside, I was beating his fucking face into the ground. That’s what would

have happened. I would’ve rolled his fat ass all over the ground and stomped

his fucking face into that shit. Fuck. It’s what would’ve happened.” Id. at

52. Accordingly, Appellant is not entitled to relief on his first issue.4

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Commonwealth v. Cornelius, 856 A.2d 62, 77 (Pa. Super. 2004) (declining
to review appellant’s claim where there was limited explanation and
development of the argument).
4 The trial court’s cautionary instruction here ameliorated any prejudicial

impact of the prior bad acts evidence. Hairston, 84 A.3d at 671.

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      We now turn to Appellant’s second issue.        Appellant argues that the

evidence was sufficient to establish a voluntary intoxication defense, negating

the specific intent element for first-degree murder. In other words, Appellant

claims that because he was under the influence of alcohol, he lacked the

specific intent to murder the victim and, as a result, his first-degree murder

conviction must be reduced to murder in the third degree. We disagree.

      Our Supreme Court has clarified that a defense of diminished capacity

due to voluntary intoxication is an “an extremely limited defense available

only to those defendants who admit criminal liability but contest the degree

of culpability based upon an inability to formulate the specific intent to kill.”

Commonwealth v. Hutchison, 25 A.3d 277, 312 (Pa. 2011). Further,

      [a] diminished capacity defense does not exculpate the defendant
      from criminal liability entirely, but instead negates the element of
      specific intent. For a defendant who proves a diminished capacity
      defense, first-degree murder is mitigated to third-degree murder.
      To establish a diminished capacity defense, a defendant
      must prove that his cognitive abilities of deliberation and
      premeditation were so compromised, by mental defect or
      voluntary intoxication, that he was unable to formulate the
      specific intent to kill. The mere fact of intoxication does
      not give rise to a diminished capacity defense. Evidence that
      the defendant lacked the ability to control his or her actions or
      acted impulsively is irrelevant to specific intent to kill, and thus is
      not admissible to support a diminished capacity defense.

Id. at 312 (citations and quotations marks omitted) (emphasis added). Thus,

to prove a voluntary intoxication defense, the defendant must show that he

was “overwhelmed to the point of losing his faculties and sensibilities.” Id.

(citation omitted).



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      Instantly, in support of his intoxication defense, Appellant points to the

testimony of Anna Johnson and Angel Hall. Appellant asserts that Ms. Johnson

“believed that [Appellant] was drunk the evening [the victim] was killed.”

Appellant’s Brief at 21. Additionally, Appellant asserts that Ms. Hall observed

Appellant taking shots at a party prior to the victim’s murder.        Id.   With

respect to Ms. Johnson’s testimony, Appellant’s recitation of her testimony is

woefully incomplete and misleading. Our review of the transcript reveals that

Ms.   Johnson    offered   the   following   testimony   concerning   Appellant’s

intoxication:

      Q. Do you think that [the victim] was drunk that night?

      A. We all got a little drunk.

      Q. Okay.

      A. I didn’t get too much drunk because I had to work the next
      morning.

      Q. Okay. What about [Appellant], was he drunk that night?

      A. I believe so. I’m not completely sure if he was drunk or just a
      little drunk. I know [the victim] was drunk.

      Q. Okay. You’re not sure about [Appellant]?
      A. No.

N.T. Trial, 8/21/18, at 56. Further, the victim’s mother, Ms. Hall testified that

when she saw Appellant after the party in the early morning hours, around

the time of the victim’s murder, Appellant did not appear drunk. Id. at 88.

On cross-examination, Ms. Hall clarified that she did not believe Appellant was

drunk. Id. at 103.




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      Based on the evidence presented at trial, we cannot conclude the trial

court erred in finding Appellant failed to present substantial evidence to

support his voluntary intoxication defense. Here, even though the jury was

instructed on the voluntary intoxication defense, it did not choose to accept

the   defense   and   convicted   Appellant   of   first-degree   murder.   See

Commonwealth v. Sanchez, 82 A.3d 943, 972 (Pa. 2013) (“We may not

substitute our own judgment for the jury’s, as it is the fact-finder’s province

to weigh the evidence, determine the credibility of witnesses, and believe all,

part, or none of the evidence submitted.”).        Thus, we agree with the trial

court’s conclusion that, “[a]lthough there was some evidence of [Appellant’s]

drinking during the night of the murder, there was absolutely no evidence that

his alcohol consumption overwhelmed or impaired him to the point of losing

his faculties or sensibilities.” Trial Court Opinion, 1/2/19, at 2. Accordingly,

Appellant’s second issue likewise merits no relief.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/27/2019




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