J-S48038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

GARFIELD PATRICO ALEXANDER,

                            Appellant                 No. 232 MDA 2017


             Appeal from the Judgment of Sentence May 15, 2015
             in the Court of Common Pleas of Lackawanna County
               Criminal Division at No.: CP-35-CR-0001238-2014

BEFORE: OTT, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED SEPTEMBER 20, 2017

        Appellant, Garfield Patrico Alexander, appeals nunc pro tunc from the

judgment of sentence imposed pursuant to his jury conviction of two counts

each of aggravated assault and terroristic threats, and one count each of

simple assault, recklessly endangering another person, unlawful restraint,

and criminal attempt-aggravated assault.1 We affirm.

        We take the following factual background from the trial court’s March

30, 2017 opinion and our independent review of the certified record.




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  18 Pa.C.S.A. §§ 2702(a)(1), 2706(a)(1), 2701(a)(1), 2705, 2902(c)(1),
and 901(a), respectively.
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     On July 16, 2014, the Commonwealth filed a criminal information

against Appellant charging him with criminal attempt-homicide, aggravated

assault, terroristic threats, simple assault, recklessly endangering another

person, and unlawful restraint, related to a domestic incident that occurred

on June 11, 2014. On February 23, 2015, the Commonwealth amended the

information to include a count for attempt-aggravated assault.            The

Commonwealth also filed a motion in limine seeking to introduce prior bad

act evidence pursuant to Pennsylvania Rule of Evidence 404(b).           After

argument, the trial court granted the motion over Appellant’s objection. On

March 17, 2015, trial commenced.

     The trial court aptly describes what occurred at trial in its March 30,

2017 opinion:

           The evidence at trial demonstrated that on or about June
     11, 2014, members of the Scranton Police Department were
     directed to report to 917 Slocum Avenue, Scranton,
     Pennsylvania to assist in the investigation of a domestic dispute
     which resulted in the stabbing of a seventeen (17) year old
     male. Upon arrival, police officers were notified that the victim
     was in critical condition and had already been transported to the
     hospital.

            At trial, the victim, Dyshawn Cunningham, (hereinafter,
     “Victim”)[,] identified his stepfather, [Appellant,] as the
     individual who stabbed him during a domestic dispute that
     morning at his residence.       The victim stated that he was
     awakened by a loud fight between his mother and [Appellant].
     After being awakened, the [V]ictim went downstairs and noticed
     that [Appellant] was on top of his mother assaulting her. The
     [V]ictim then ordered [Appellant] to get away from his mother,
     at which point [Appellant] pulled a knife and screamed[,] “Get
     [down] on the ground, [I’m gonna take] everyone out tonight!”
     (N.T. Trial, 3/18/15, at 100-01). The [V]ictim then attempted to

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      protect his mother by striking [Appellant] with a piece of wood,
      at which point [Appellant] stabbed him once in the left chest and
      twice in the back. [Appellant] then fled the residence.

              During the trial, [Appellant’s] wife and the [V]ictim’s
      mother, Danielle Alexander, corroborated [the Victim’s] details
      of the events that occurred on June 11, 2014. [Ms.] Alexander
      testified that on the morning of the incident, she was awoken by
      [Appellant] “coming in, he was screaming, yelling at me, and he
      grabbed me by my hair and drug me out to the kitchen.” (N.T.
      Trial, 3/17/15, at 169). After having dragged [Ms.] Alexander
      by her hair into the kitchen of her home, he pinned her down on
      the ground [] with his knees on her shoulders. She then
      testified that [the Victim] came down while [Appellant] was
      assaulting her, and he said[,] “Get off my mom.” (Id. at 171).
      [Appellant] then “got up and turned around and said, []‘No, you
      guys are going to listen to me tonight. Both of you get down on
      the ground, put your hand[s] behind your back. I’m going to
      take everybody out tonight.’”       (Id. at 171-72).      She then
      testified that [Appellant] pulled out a butcher knife while she was
      still laying on the ground, at which point she thought, “He [is]
      going to kill him, kill me.” (Id. at 173). She then stated that
      [Appellant] then “raised the knife [up] over his head and I just, I
      blocked my face with my arms.” (Id. at 177). She then heard
      [the Victim] and [Appellant] “struggling” and “[b]y the time I got
      up, my son─I knew it had to be my son, but by the time I got
      up, he was gone.” (Id. at 178). She then testified that she ran
      after her son, [the Victim], who was halfway down the street
      yelling for help. By the time [Ms.] Alexander reached her son,
      “he was halfway down the street and he was leaning on the
      neighbor’s concrete wall.       And he was yelling, ‘Mom, I’m
      stabbed.’” (Id. at 179). [Appellant] then fled the scene in a
      rental car, while the EMT and Scranton Police responded to the
      crime scene.

(Trial Court Opinion, 3/30/17, at unnumbered pages 2-3) (some record

citations omitted; record citation formatting provided).

      On March 19, 2015, the jury found Appellant not guilty of criminal

attempt-homicide and convicted him of the aforementioned crimes. On May

15, 2015, the court sentenced Appellant to an aggregate term of

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incarceration of not less than seven and one-half nor more than fifteen

years. Appellant did not file post-trial motions or a direct appeal.

       On April 25, 2016, Appellant filed a pro se petition pursuant to the

Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, seeking leave

to appeal nunc pro tunc. The trial court appointed counsel on May 3, 2016

and, on January 19 and 26, 2017, it entered orders reinstating Appellant’s

direct appeal rights nunc pro tunc. On January 30, 2017, Appellant timely

appealed.2

       Appellant raises two questions for our review:

       1.   Whether the trial court erred by permitting the
       Commonwealth to introduce Ms. Alexander’s testimony of prior
       bad acts pursuant to Rule 404(b) over defense objections?

       2.   Whether the trial court abused its discretion when it
       excused a juror?

(Appellant’s Brief, at 4) (unnecessary capitalization omitted).

       In his first issue, Appellant challenges the trial court’s grant of the

Commonwealth’s motion in limine seeking the admission of prior bad acts

testimony pursuant to Pennsylvania Rule of Evidence 404(b). (See id. at 8-

12).    Specifically, Appellant argues that the court erred in allowing Ms.

Alexander’s “inflammatory and incriminating testimony” about prior domestic


____________________________________________


2
  On March 1, 2017, Appellant timely filed a statement of errors complained
of on appeal pursuant to the court’s order. See Pa.R.A.P. 1925(b). The trial
court filed an opinion on March 30, 2017. See Pa.R.A.P. 1925(a).



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abuse involving Appellant because this “unfairly prejudiced [him] and the

probative value was minimal.” (Id. at 12). Appellant’s issue lacks merit.

            In evaluating the denial or grant of a motion in limine, our
     standard of review is well-settled. When ruling on a trial court’s
     decision to grant or deny a motion in limine, we apply an
     evidentiary abuse of discretion standard of review. A trial court
     has broad discretion to determine whether evidence is
     admissible, and a trial court’s ruling regarding the admission of
     evidence will not be disturbed on appeal unless that ruling
     reflects manifest unreasonableness, or partiality, prejudice, bias,
     or ill-will, or such lack of support to be clearly erroneous. If the
     evidentiary question is purely one of law, our review is plenary.

Commonwealth v. Gill, 158 A.3d 719, 725 (Pa. Super. 2017) (citation

omitted).

            Generally, evidence of prior bad acts or unrelated criminal
     activity is inadmissible to show that a defendant acted in
     conformity with those past acts or to show criminal propensity.
     Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be
     admissible when offered to prove some other relevant fact, such
     as motive, opportunity, intent, preparation, plan, knowledge,
     identity, and absence of mistake or accident. Pa.R.E. 404(b)(2).
     In determining whether evidence of other prior bad acts is
     admissible, the trial court is obliged to balance the probative
     value of such evidence against its prejudicial impact.

Commonwealth v. Winslowe, 158 A.3d 698, 713 (Pa. Super. 2017) (case

citations omitted). “[O]ur courts will allow evidence of prior bad acts where

the distinct crime or bad act was part of a chain or sequence of events which

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

Commonwealth v. Drumheller, 808 A.2d 893, 905 (Pa. 2002), cert.

denied, 539 U.S. 919 (2003) (citation and internal quotation marks

omitted).


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      In Drumheller, the trial court granted the Commonwealth’s motion in

limine seeking to introduce prior bad act evidence that consisted of four

protection from abuse orders (PFAs) filed by the murdered victim against the

defendant over the previous thirty-four months.        See id. at 901.     In

concluding that the trial court properly exercised its discretion, the

Pennsylvania Supreme Court stated:

      In the present case, the evidence suggests that the abuse by
      [the defendant] of [the victim] continued during this entire
      three-year period.     All four PFA petitions are relevant to
      demonstrate what the Commonwealth accurately characterizes
      as “the continual and escalating nature of [defendant’s] abuse of
      [the victim].” The challenged evidence shows the chain or
      sequence of events that formed the history of the case, is part of
      the natural development of the case, and demonstrates [the
      defendant’s] motive, malice, intent, and ill-will toward [the
      victim].

Id. at 905 (record citation omitted).

      Similarly, in this case, the Commonwealth sought to admit Ms.

Alexander’s testimony regarding a PFA and several incidents of domestic

violence that occurred approximately six months’ prior to the June 11, 2014

incident “to show [Appellant’s] ill[-]will, motive, intent, and malice in

committing the current criminal charges” and “to demonstrate a chain and

sequence of events which form the history of this case[.] (Commonwealth’s

Motion in Limine, 2/23/15, at 4; see id. at 2-4). These incidents included

Ms. Alexander’s waking up in the middle of the night with Appellant holding

a butcher knife to her neck and “ranting and raving” because he believed

she was cheating on him. (See N.T. Trial, 3/17/15, at 138; see id. at 137).

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On another occasion, Appellant crashed into her vehicle with her inside it

several times, disabling the vehicle, and eventually forcefully yanking her

out of the car because she had just dropped off two male friends. (See id.

at 223-24).    Also, Appellant started tracking Ms. Alexander on her cell

phone, and appearing in an agitated state wherever she was. (Id. at 147-

51). In spite of her fear of Appellant’s retribution, Ms. Alexander obtained a

PFA against him pursuant to an attorney’s advice, which excluded him from

her home. (See id. at 153, 157). Thereafter, Ms. Alexander was at home

when Appellant entered, swinging a machete at her, and slicing her

sweatpants. (See id. at 159, 166). In another incident, Appellant tried to

suffocate Ms. Alexander. (Id. at 167-68).

      The trial court granted the Commonwealth’s motion, finding that:

      Similarly to Drumheller, this [c]ourt found that [Appellant’s]
      prior incidents of abuse were admitted pursuant to [R]ule 404(b)
      because “they help the Commonwealth establish malice, intent,
      and ill will toward the victim” and “that it is part of a connected
      series or chain of events that led up to the June 11th event.”
      (N.T. Trial, 3/17/15, at 14).       Therefore, since these prior
      incidents of abuse are more probative than prejudicial, [the
      court] found that they [were] admissible at trial.

(Trial Ct. Op., at unnumbered page 6) (record citation format provided). We

agree.

      Additionally, we observe that, at trial, the court gave cautionary

instructions to the jury three times during Ms. Alexander’s testimony, and

once during its closing charge. Before Ms. Alexander testified to the prior

bad acts, the court advised the jury that the testimony was to be used only

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for the limited purpose of showing malice, ill-will, motive, or a chain or

sequence of events leading up to the incident in question, not as evidence

that Appellant was a person of bad character. (See N.T. Trial, 3/17/15, at

136-37).     Also, the court explained that the PFA was entered against

Appellant without any admission of wrongdoing, and advised that the jury

members were to consider this evidence for the limited purpose of showing

the chain or sequence of events.      (See id. at 152-53).     Next, the court

instructed the jury regarding testimony about incidents for which Appellant

was not on trial, that occurred after the entry of the PFA, and before the

incident in question, reminding them of its limited purpose. (See id. at 158-

59). Finally, in its closing charge, the court repeated that the prior bad acts

evidence was admitted for a limited purpose; and not to show that Appellant

is a person of bad character, or that he has criminal tendencies from which

they might be inclined to infer guilt. (See N.T. Trial, 3/19/15, at 79-80).

      “The law presumes that the jury will follow the instructions of the

court.”    Drumheller, supra at 906 (citations omitted).       Here, the court

informed the jury of the limited use of the evidence of Appellant’s prior

abuse of Ms. Alexander, namely that it could only be used to demonstrate

the chain or sequence of events that formed the history of the case and

Appellant’s motive, malice, intent, and ill-will. Because the prior incidents of

domestic abuse and the facts that formed the basis for the PFA formed the

chain and sequence of events leading up to the June 11, 2014 crime, and


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the trial court provided cautionary instructions, we conclude that it did not

abuse its discretion in admitting the Commonwealth’s Rule 404(b) evidence.

See Gill, supra at 725. Appellant’s first issue does not merit relief.

      In his second claim, Appellant argues that “[t]he trial court abused its

discretion by excusing a seated juror.”      (Appellant’s Brief, at 12).    We

disagree.

      “The discharge of a juror is within the sound discretion of the trial

court. Absent a palpable abuse of that discretion, the court’s determination

will not be reversed.”   Commonwealth v. Treiber, 874 A.2d 26, 31 (Pa.

2005) (citation omitted). “Alternate jurors . . . shall replace principal jurors

who become unable or disqualified to perform their duties.”        Pa.R.Crim.P.

645(A).

      Instantly, the trial court describes the pertinent background of this

matter as follows:

      . . . [V]oir dire and jury selection took place on March 16, 2015.
      After the selection of the jury, the members of the panel were
      advised that [trial] would reconvene one (1) day later and
      commence [] on March 17, 2015. When trial reconvened the
      next day, [the trial court] raised a concern about juror No. 5.
      [The court] thought he may have been sleeping and/or texting.
      The juror was then brought into the courtroom outside the
      presence of the remaining jurors to be questioned. . . .

(Trial Ct. Op., at unnumbered pages 6-7). The following relevant exchange

occurred between the court and the juror:

      THE COURT:       . . . I brought you out here just because I had
      to ask you a couple of questions, okay?


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     JUROR:            Okay.

     THE COURT:         During the course of this morning, I have an
     obligation to observe all of the jurors to make sure that they are
     . . . performing their duties and being attentive jurors, and I, at
     first, I thought you might have been texting on your phone,
     because I couldn’t see your hands.

     JUROR:            Oh.

     THE COURT:       So I thought─because you were looking down
     throughout the testimony this morning at your hands. I couldn’t
     see your hands, so I thought, too, maybe you’re writing in your
     notebook.

     JUROR:            Okay. Yeah.

     THE COURT:        So I had a concern, and then I thought maybe
     you were drifting off to sleep. . . . So, were you?

     JUROR:            No.

                                 *     *      *

     THE COURT:        Okay. And the only other concern that I had
     was that I noted that when the tape was being played, a
     transcript was disseminated. . . . And all of the jurors read along
     with the transcript . . . except you. . . . Do you know why . . .
     you didn’t read along?

                                 *     *      *

     JUROR:            It was just too much. . . . [I]t was too much
     for me to handle, I think. I don’t know.

     THE COURT:        Too much information?

     JUROR:            I suppose so.

     THE COURT:      Do you have─[I]s there something that I need
     to know? Are you having─do you have concerns? Is there
     something that’s concerning you or troubling you about your
     service here?


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     JUROR:            Um─

     THE COURT:        And there’s no wrong answer.

     JUROR:           Well, I just─I guess I have moral─or I just
     don’t─I have a moral objection to the whole thing.

     THE COURT:        You have a moral objection to the whole
     proceeding?

     JUROR:            Yeah. Yep.

(N.T. Trial, 3/17/15, at 208-11). Thereafter, Appellant’s counsel questioned

the juror. That exchange included, in pertinent part:

     [COUNSEL]:         . . . Sir, you don’t feel you could be fair and
     impartial even if the [j]udge instructed you that you need to be
     to be a juror?

     JUROR:           I just have moral obligations          for   finding
     someone guilty. I’m trying to think, I just─

     [COUNSEL]:        Okay.

     JUROR:            I just─

     [COUNSEL]:        But if the [j]udge─

     JUROR:            I’m sorry.

     [COUNSEL]:      That’s all right.     You have trouble standing in
     judgment of somebody else?

     JUROR:            Yeah. Basically.

     [COUNSEL]:          All right. If the [j]udge tells you, or has told
     you that in order to be a proper juror for this trial you can’t have
     any preconceived beliefs or notions that would cause you not to
     be fair, is it your answer that you can’t be fair?

     JUROR:            I guess not.




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(Id. at 214-15).     Following the above questioning, the trial court excused

the juror and replaced him with an alternate. (See id. at 218).

      Based on the foregoing, where the juror stated that his moral and

ethical beliefs precluded him from being able to sit in judgment in a criminal

trial, the trial court properly exercised its discretion when it dismissed him

“to ensure impartiality and fairness to both parties.”     (Trial Ct. Op., at

unnumbered page 9); see also Treiber, supra at 31. Appellant’s second

issue lacks merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/20/2017




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