J-S56006-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                    v.

ANTHONY CAIBY

                         Appellant                  No. 3145 EDA 2016


             Appeal from the Judgment of Sentence April 6, 2016
               In the Court of Common Pleas of Monroe County
             Criminal Division at No(s): CP-45-CR-0002035-2013


BEFORE: BOWES, STABILE, AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                       FILED NOVEMBER 21, 2017

      Anthony Caiby appeals from the judgment of sentence of life in prison

without the possibility of parole, plus a consecutive sentence of forty-two to

eighty-four months incarceration, imposed after he was convicted of first

degree murder, two counts of criminal conspiracy, tampering with physical

evidence, abuse of a corpse, and possession with intent to deliver (“PWID”).

We affirm.

      At approximately 4:30 p.m. on October 8, 2005, the victim, David

McEntire, left his home.     His family never saw him again.   Mr. McEntire’s

disappearance remained a mystery until 2009, when Lisa Stavish was

arrested for retail theft.    Ms. Stavish intimated to her arresting officer

specifics of a murder of a man named “David.” Ms. Stavish offered details of


* Retired Senior Judge specially assigned to the Superior Court.
J-S56006-17



the event, and stated that she witnessed Edwin Kelly, James Gaines, and

Appellant attack and kill the victim in Mr. Kelly’s house.       Based on the

information provided by Ms. Stavish, investigators executed a search

warrant on Mr. Kelly’s residence.    At that time, Mr. Kelly agreed to speak

with police.   Thereafter, Mr. Kelly confessed to his participation in Mr.

McEntire’s murder and corroborated specific details of the incident recounted

by Ms. Stavish, that were not made public, including that they had returned

the victim’s van to his place of work, left the keys in the ignition, and locked

the doors.

      At the time of his death, Mr. McEntire was addicted to crack cocaine.

Appellant sold the victim cocaine during the month preceding the attack, and

used Mr. Kelly’s house to distribute the illicit substance.     On October 8,

2005, Appellant lured the victim to Mr. Kelly’s residence. When the victim

entered the living room, Appellant bludgeoned him in the head with the claw

end of a hammer. The assailants then moved the victim to the basement

where he was shot in the legs four times with a .22 caliber rifle. Ms. Stavish

administered Mr. McEntire two “hot shots,” an injection of bleach and

cocaine, using cocaine provided by Appellant.           Following the second

injection, the victim died.   After Mr. McEntire perished, the conspirators

burned his body in a fire pit behind the house, and disposed of the remaining

bones near a junkyard in West Hazelton, Luzerne County. His remains were

never recovered.

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      Based   on    the   foregoing,    Appellant   was   charged   with    the

aforementioned offenses. Prior to trial, Ms. Stavish and Mr. Kelly reached

plea agreements with the Commonwealth, agreeing to plead guilty to third-

degree murder in exchange for their testimony against Appellant. They each

received a sentence of seven to twenty years incarceration following their

pleas. Also prior to trial, the Commonwealth filed a notice of its intent to

introduce evidence of other crimes, wrongs, or acts pursuant to Pa.R.E.

404(b).   After a hearing on the matter, the trial court permitted the

Commonwealth to introduce evidence that Appellant was subsequently

arrested for assault and drug dealing, as well as evidence of another assault

he participated in at Mr. Kelly’s residence, which was never reported to the

police. It ruled other proposed prior bad acts evidence was inadmissible.

      Following a jury trial, Appellant was found guilty of first-degree

murder, conspiracy to commit first-degree murder, PWID, conspiracy to

commit PWID, abuse of a corpse, and tampering with physical evidence.

The trial court imposed a sentence of life in prison without the possibility of

parole on the first-degree murder conviction and a consecutive sentence of

forty-two to eighty-four months incarceration for PWID.      Appellant filed a

post-sentence motion, which the trial court denied, and filed a timely notice




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of appeal to this Court.1          Appellant and the trial court complied with

Pa.R.A.P. 1925, and this matter is now ready for our review.

       Appellant raises five questions for our consideration:

       1. Did the lower court err in finding sufficient evidence to
          support the jury verdict of First Degree Murder when the
          Commonwealth failed to establish [Appellant] committed
          murder or acted with any specific intent to kill?

       2. Did the lower court err in finding sufficient evidence to
          support    the   verdict   regarding    [PWID]     when      the
          Commonwealth failed to present any evidence that
          [Appellant] possessed or constructively possessed a
          controlled substance and did so with the intent to deliver it?

       3. Did the lower court err in denying [Appellant’s] request for a
          new trial when the jury’s verdict was against the weight of
          the evidence and is so deficient as to shock one’s sense of
          justice?

       4. Did the lower court err in denying [Appellant’s] request for a
          new trial for prosecutorial misconduct during closing remarks?

       5. Did the lower court err in denying [Appellant’s] pretrial
          motion regarding notice of 404(b) other crimes evidence
          thereby permitting the Commonwealth to introduce
          prejudicial bad act evidence?

Appellant’s brief at 4.

       Appellant’s first two issues challenge the sufficiency of the evidence

underpinning his convictions for murder in the first degree and PWID. We


____________________________________________


1
  After trial, Appellant’s trial counsel was permitted to withdraw. The trial
court appointed current counsel, who filed an amended post-sentence
motion, and represents Appellant on this appeal.



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consider them together. We utilize the following standard when reviewing a

challenge to the sufficiency of the evidence:

      Whether viewing all the evidence admitted at trial in the light
      most favorable to the verdict winner, there is sufficient evidence
      to enable the fact-finder to find every element of the crime
      beyond a reasonable doubt. In applying the above test, we may
      not weigh the evidence and substitute our judgment for the fact-
      finder. In addition, we note that the facts and circumstances
      established by the Commonwealth need not preclude every
      possibility of innocence. Any doubts regarding a defendant’s
      guilt may be resolved by the fact-finder unless the evidence is so
      weak and inconclusive that as a matter of law no probability of
      fact may be drawn from the combined circumstances. The
      Commonwealth may sustain its burden of proving every element
      of the crime beyond a reasonable doubt by means of wholly
      circumstantial evidence. Moreover, in applying the above test,
      the entire record must be evaluated and all evidence actually
      received must be considered. Finally, the trier of fact while
      passing upon the credibility of witnesses and the weight of the
      evidence produced, is free to believe all, part or none of the
      evidence.

Commonwealth v. Fitzpatrick, 159 A.3d 562, 567 (Pa.Super. 2017)

(citation omitted).

      The Crimes Code defines murder, in pertinent part, as an “intentional

killing.” 18 Pa.C.S. § 2502(a). To convict a person of first-degree murder,

the Commonwealth must establish: “(1) a human being was unlawfully

killed; (2) the defendant was responsible for the killing; and (3) the

defendant acted with malice and a specific intent to kill.”       Fitzpatrick,

supra at 567 (brackets and citation omitted). A killing is intentional if it is

done in a “willful, deliberate and premeditated fashion.”       18 Pa.C.S. §

2502(d). However,

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      [t]he period of reflection needed to establish deliberation and
      premeditation may be as brief as a fraction of a second. Indeed,
      the deliberation and premeditation needed to establish intent
      exists whenever the assailant possesses the conscious purpose
      to bring about death.          The Commonwealth may use
      circumstantial evidence to establish the elements of first-degree
      murder, including the element of intent.

Id. (citing Commonwealth v. Rivera, 983 A.2d 1211, 1220 (Pa. 2009)

(internal citations omitted)). Finally, “[w]hen there is no direct evidence of

intent to kill, the fact-finder may glean the necessary intent from the act

itself and from all surrounding circumstances.”   Id. (citation omitted).   As

such, “[s]pecific intent to kill can be proven when the defendant knowingly

applies deadly force to the person of another.” Id. (emphasis omitted).

      Appellant contends there was insufficient evidence that he “planned or

perpetrated the killing of the victim.” Appellant’s brief at 22. He concedes

that he participated in disarming and assaulting the victim, who arrived at

Mr. Kelly’s house bearing a shotgun, but argues that he did not act with

malice or a specific intent to kill.       He maintains that Ms. Stavish

administered the hot shots which ultimately killed Mr. McEntire. As such, he

concludes the evidence does not establish that he committed murder in the

first degree.

      Instantly, Ms. Stavish testified that Appellant and Mr. Kelly suspected

the victim of being involved in the theft of $1500 and an ounce of cocaine

from Mr. Kelly. When the victim arrived at Mr. Kelly’s house, “there was a

lot of yelling going on and [Appellant] struck him over the head with a

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hammer, the claw end and he was bleeding profusively [sic][.]” N.T.,

1/8/16, at 151-152.         She stated that this attack occurred “right in the

opening to a living room of the house,” and involved “[Appellant], [Mr.] Kelly

and [Mr. Gaines] all kicking him.” Id. at 152; 161. After this attack, Ms.

Stavish continued, the assailants dragged Mr. McEntire to the basement, and

subsequently, she “heard about three or four gunshots go off.”       Id.   She

noted that, following the victim’s death, they dropped his van off at his

workplace, burned his body, and disposed of the remains in a remote area of

Hazleton. Id. at 154-156.

       Mr. Kelly corroborated much of Ms. Stavish’s testimony. He observed

that the victim arrived at his house carrying a shotgun.2 N.T., 1/11/16, at

15.   Mr. Kelly stated that he, Appellant, and Mr. Gaines took the weapon

from Mr. McEntire and “proceeded to give him a beating.” Id. At that point,

Mr. Kelly left the residence to conduct a drug transaction. However, when

he returned, the victim had been moved to the basement, and Mr. Kelly

heard gunshots which originated from that location. Mr. Kelly testified that

____________________________________________


2
   The record suggests that the victim brought the shotgun to Mr. Kelly’s
house not to defend himself, but rather, to trade for drugs. This theory is
bolstered by evidence that Mr. McEntire had exhausted his financial
resources, and that he may have traded another firearm to Appellant at
some point. Shortly after the victim’s death, his wife reported to police that
her personal firearm was missing. That firearm was later recovered in
Brooklyn, New York, within one-half mile radius of an apartment complex
linked to Appellant and Mr. Gaines.



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Ms. Stavish injected the victim with a hot shot of “coke and bleach,” and

that Appellant provided the cocaine. Id. at 15, 25. After the victim died, he

stated that “[the victim] was taken out to my burn pit in a carpet, gas

poured on him and he was burned.” Id. at 15.

     In addition to this testimony, the Commonwealth offered forensic

evidence collected during the search of Mr. Kelly’s residence. Trooper John

Corrigan testified that there was evidence of blood located throughout the

house, including in the living room, in the basement stairs, and in the

basement. N.T. 1/8/16, at 75, 78-93. The trooper observed that there was

evidence of an attempt to clean the crime scene, such as shampooing the

carpet and painting the walls.          The investigation also uncovered blood

specks on ceiling beams in the living room that were “consistent with a blood

shedding event such as a beating.”            N.T., 1/11/16, at 147.     Further, the

Commonwealth proffered the victim’s phone records, which revealed that

Appellant   was   the   last   person    to    contact   the   victim   prior   to   his

disappearance.

     When viewing the evidence in the light most favorable to the

Commonwealth as the verdict winner, we find that the Commonwealth

proffered sufficient evidence to prove that Appellant committed first-degree

murder beyond a reasonable doubt. Appellant conceded that Mr. McEntire

was dead. N.T., 1/13/16, at 20. In addition, the evidence and testimony

provided by the Commonwealth established that Appellant lured Mr.

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McEntire to Mr. Kelly’s house. When the victim arrived, Appellant hit him in

the head with a hammer, causing severe bleeding, establishing that he

applied deadly force to a vital part of the victim’s body.    Rivera, supra;

Commonwealth v. Fortson, 165 A.3d 10, 16 (Pa.Super. 2017) (noting jury

may infer specific intent to commit murder from attack on vital part of

victim’s body).   Further, Mr. Kelly’s testimony indicated that Appellant

provided the cocaine used in the hot shot injections, which ultimately led to

the victim’s demise. Moreover, the testimony revealed that the conspirators

attempted to cover up their crime by returning Mr. McEntire’s van, burning

and disposing of the body, and cleaning up the crime scene.              When

considering this evidence together, we find that it supports the conclusion

that Appellant deliberately assaulted the victim, and participated in the

actions which led to his death, with the specific intent to kill him. Hence, no

relief is due.

      Next, Appellant challenges his conviction for PWID. The Crimes Code

prohibits, in relevant part, “the manufacture, delivery, or possession with

intent to manufacture or deliver, a controlled substance by a person not

registered under this act[.]” 35 Pa.C.S. § 780-113(a)(30).

      Appellant argues that the only evidence adduced to support this

conviction was “general character testimony that [he was] a known drug

dealer.”   Appellant’s brief at 19.   He concedes that the Commonwealth

offered evidence that Ms. Stavish made drug deliveries on his behalf, that

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Mr. Kelly sold cocaine with him for eight years, and that other witnesses

testified that they bought drugs from him. Id. Nevertheless, he claims that

there “was no specific evidence that [Appellant] possessed or constructively

possessed any particular drug at any particular point in time[.]” Id.

      We find that Appellant’s argument is belied by the record. Numerous

witnesses testified that they had purchased drugs from Appellant.             For

example, Heather D’Auria stated that she purchased crack from Appellant.

N.T., 1/7/16, at 179-180. Jessica Bajwa confirmed that she bought cocaine

from Appellant.    N.T., 1/8/16, at 113.      Danielle Joye, Appellant’s former

girlfriend, stated that she witnessed Appellant sell drugs. Id. at 146. Mr.

Kelly offered testimony as to the extent of Appellant’s drug operation, in

which he was a participant. N.T., 1/11/16, at 6-11. He specifically noted

that Appellant regularly sold crack cocaine to the victim. Id. at 13. The

jury could have reasonably inferred from Mr. Kelly’s testimony that the

victim traveled to Mr. Kelly’s residence on the day in question with the intent

to purchase cocaine from Appellant.           In addition to Appellant’s own

admissions, we find that the Commonwealth offered sufficient evidence that

he possessed an illegal narcotic with the intent to deliver it. No relief is due.

      Appellant’s third issues assails the trial court’s denial of his challenge

to the weight of the evidence underlying his convictions.       Our standard of

review is well-settled:




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      When we review a weight-of-the-evidence challenge, we do not
      actually examine the underlying question; instead, we examine
      the trial court’s exercise of discretion in resolving the challenge.
      This type of review is necessitated by the fact that the trial judge
      heard and saw the evidence presented. Simply put, one of the
      least assailable reasons for granting or denying a new trial is the
      lower court’s conviction that the verdict was or was not against
      the weight of the evidence and that a new trial should be
      granted in the interest of justice. A new trial is warranted in this
      context only when the verdict is so contrary to the evidence that
      it shocks one’s sense of justice and the award of a new trial is
      imperative so that right may be given another opportunity to
      prevail.

Commonwealth v. Konias, 136 A.3d 1014, 1022 (Pa.Super. 2016)

(citations, internal quotation marks, and brackets omitted).

      Appellant’s argument in this regard is fairly straight-forward.          He

asserts that the only evidence of his involvement in Mr. McEntire’s murder

was provided by Ms. Stavish and Mr. Kelly. Appellant highlights that these

individuals provided testimony against him in exchange for favorable plea

agreements.      In addition, Appellant posits that the evidence supports a

finding   that   those   two   individuals   committed   the   homicide,   without

conclusively revealing Appellant’s role in the incident.

      In determining that the verdict was not against the weight of the

evidence, the trial court noted that the testimony of Ms. Stavish and Mr.

Kelly alone supported the verdict.       Trial Court Opinion, 12/16/16, at 21.

However, it observed that the Commonwealth proffered additional evidence

consistent with that testimony. The trial court recognized that Ms. Stavish

and Mr. Kelly “were classic ‘corrupt and polluted sources,’” but emphasized

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that the jury was well aware of their status and was properly instructed on

how to view their testimony.        It highlighted that defense counsel also

“hammered the point home in his cross-examinations of both witnesses and

in his closing.”    Id. at 22.   The trial court observed that, even with the

knowledge of the witnesses’ plea deals, “[t]he jury chose to believe them

anyway.”      Id.   The court concluded that the verdict did not shock the

conscience.     Since the trial court applied the proper legal standing in

rejecting Appellant’s claim, we find no abuse of discretion. Hence, the jury’s

verdict does not shock the conscience, and this claim fails.

      Appellant’s fourth issue assails the trial court’s denial of his motion for

a mistrial premised upon the prosecutor’s purported misconduct during

closing remarks. We observe,

      [n]ot every unwise remark made by an attorney amounts to
      misconduct or warrants the grant of a new trial. Comments by a
      prosecutor do not constitute reversible error unless the
      unavoidable effect of such comments would be to prejudice the
      jury, forming in their minds fixed bias and hostility toward the
      defendant so they could not weigh the evidence objectively and
      render a true verdict.

Commonwealth v. Collins, 70 A.3d 1245, 1252-1253 (Pa.Super. 2013)

(citation omitted). In addition,

      [i]n determining whether the prosecutor engaged in misconduct,
      courts must keep in mind that comments made by a prosecutor
      must be examined within the context of defense counsel’s
      conduct. It is well settled that the prosecutor may fairly respond
      to points made in the defense closing.           A remark by a
      prosecutor, otherwise improper, may be appropriate if it is in fair
      response to the argument and comment of defense counsel.

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Id. at 1253 (citation and brackets omitted).

      The following statements made during summation are relevant to our

analysis:

      Defense Counsel: And one thing that I thought was pretty
      important – and I thought we would hear DNA evidence – is you
      heard evidence about how these people supposedly took all of
      these efforts to clean up blood and shampoo rugs; and again
      they were able to shampoo the top of the rug but it looks like
      there was blood underneath the rug, but there was some pristine
      DNA samples or potential DNA samples that were on the beams
      and I thought for sure that we were going to hear evidence that
      that blood was Mr. McEntire’s blood because you could tell that if
      that’s the evidence that while the people may have been good at
      cleaning around the walls and the floors they missed up there.
      We didn’t hear that evidence.

N.T., 1/13/16, at 56.

      Prosecutor: Now in this case police generated reports, charges
      were filed. I mean hundreds and hundreds of police reports, lab
      reports get sent to the defense – hundreds and hundreds of
      pages. Everything we got they get. That’s called discovery.
      That’s so the defense can prepare and they can read the
      charges.

            So when the defense is up here and saying I was expecting
      to see DNA, I was expecting to see DNA here or there; he knew
      there were insufficient quantities of DNA. That’s a hyperbole.

            One of the instructions you’re going to hear from the Court
      is that the Commonwealth doesn’t have to produce the body
      because otherwise the guy that gets rid of the body totally will
      never ever be found guilty of murder.

            The Commonwealth does not have to produce any part of
      a body including DNA. You’ve got proof that the victim died,
      proof that it was by criminal means and frankly the defense has
      conceded in the closing argument that Stavish and Kelly killed
      the man.

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            So if you make that concession than you really can’t – you
     really can’t quibble about whether or not there’s DNA evidence.
     We know that a significant amount of blood was shed right there
     (indicating); the luminol shows us that.

Id. at 102-103.

     Appellant argues that the prosecutor’s statements during closing

prejudiced the jury by implying that the defense bore the burden of

producing a DNA expert, and that they failed to meet this burden.         He

contends that, since neither the prosecution nor the defense called a DNA

expert, these comments created bias against the defense. We disagree.

     We find that the trial court did not abuse its discretion in denying

Appellant’s motion for a mistrial based on the prosecutor’s remarks. We do

not agree that the prosecutor’s statements imply that the defense bore any

burden with regard to producing a DNA expert.       Rather, the prosecutor’s

comments fairly responded to the defense counsel’s statements during

summation.    The defense openly questioned why the prosecutor did not

present DNA evidence, despite evidence of bloodshed within Mr. Kelly’s

house. The prosecution explained that, although they discovered evidence

of significant blood-letting within the house, the samples recovered were not

suitable for DNA testing.   Such an explanation was a fair response to the

defense’s open question, and thus, it was an appropriate response in the

context of the closing. Collins, supra. No relief is due.




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      Finally, Appellant asserts that the trial court abused its discretion by

permitting the introduction of prejudicial evidence of his prior bad acts.    A

trial court’s evidentiary rulings are afforded great deference. As such, “[w]e

give the trial court broad discretion, and we will only reverse a trial court’s

decision to admit or deny evidence on a showing that the trial court clearly

abused its discretion.”   Commonwealth v. Talbert, 129 A.3d 536, 539

(Pa.Super. 2015) (citation omitted). An abuse of discretion “is not merely

an error in judgment, but an overriding misapplication of the law, or the

exercise of judgment that his manifestly unreasonable, or the result of bias

prejudice, ill-will or partiality, as shown by the evidence of record.” Id.

      We have long understood that,

      Generally, evidence of prior bad acts or unrelated criminal
      activity is inadmissible to show that the defendant acted in
      conformity with those past acts or to show criminal propensity.
      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.         In determining whether
      evidence of prior bad acts is admissible, the trial court is obliged
      to balance the probative value of such evidence against its
      prejudicial impact.

Commonwealth v. Sitler, 144 A.3d 156, 163 (Pa.Super. 2016) (citation

omitted); Pa.R.E. 404(b).

      The trial court permitted the Commonwealth to offer evidence of an

unreported assault Appellant allegedly committed in August 2008, and an




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arrest for domestic violence on April 1, 2006. The trial court described the

incidents as follows:

      The Commonwealth seeks to admit evidence of an assault that
      occurred on or about August 29, 2008, when [Appellant] along
      with accomplices Kelly and an unidentified African-American
      male, assaulted a 26 year-old Caucasian male named Michael
      Librizzi as a result of a drug-related dispute.        The beating
      caused Mr. Librizzi to suffer a facial fracture, various other head
      trauma, and a broken leg.

            ....

      The Commonwealth intends to introduce facts relating to an April
      1, 2006 arrest in which [Appellant] was arrested by Pocono
      Township police following a violent domestic altercation with his
      girlfriend, Danielle Joye . . . [W]hile fleeing the scene,
      [Appellant] discarded cocaine and drug paraphernalia.          In
      addition, when ultimately apprehended, he had large sums of
      money on him. During the ensuing investigation, Ms. Joye
      provided her cell phone number to police. The Commonwealth
      represents that several witnesses will testify they used that
      number to contact [Appellant] to buy drugs, that many calls
      were made to that number from the victim’s phone, and that the
      last call made on the victim’s phone was an outgoing call to that
      number.

Trial Court Opinion, 2/6/15, at 18, 22-23.

      With regard to the unreported assault on Michael Librizzi, the trial

court, relying on Commonwealth v. Weakley, 972 A.2d 1182 (Pa.Super.

2009), permitted the Commonwealth to introduce this evidence to identify

Appellant’s participation in Mr. McEntire’s murder and, additionally, to

establish Appellant’s motive.     Employing the analysis pertinent to the

identity exception enunciated in Weakley, it noted that “the motive, manner

of execution, and location of the two crimes are the same,” and that “at

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least two of the same actors are implicated in both crimes.”        Trial Court

Opinion, 2/6/15, at 19-20. Since the Commonwealth intended to prove that

the victim was Appellant’s customer, and Appellant believed he stole money

and drugs from him, the assault on Mr. Librizzi, the court found that the

incident was probative of his motive for the killing. Further, the court found

the probative value of the proffered evidence outweighed its prejudicial

effect since “the events surrounding [the victim’s] murder and the beating of

Mr. Librizzi possess a high degree of similarity, drug trafficking is the reason

and motive for both the murder and the assault on Librizzi, the time lapse

between events is not great, especially when the evidence is viewed as a

chain and sequence of events, and the evidence provides history and

context.” Id. at 25.

      With regard to the subsequent arrest on April 1, 2006, the court

limited the Commonwealth to presenting evidence “regarding [Appellant’s]

continuous drug dealing, especially out of Kelly’s residence, the methods and

locations of his operation, and the discarding of drugs when fleeing from

police.” Id. at 24. It observed that this evidence was “probative of identity

and motive[.]” Id. As noted above, the court ruled that the probative value

of this evidence outweighed its prejudicial effect. Id. at 25.

      Appellant argues that the trial court erred in permitting this evidence.

He contends that neither identity nor motive serve to justify the admission of

his prior bad acts. He claims that, although the telephone number provided

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by Appellant’s former girlfriend, Danielle Joye, matched the last phone

number to contact the victim, this alone should not justify admission of the

other details of his domestic dispute arrest. Furthermore, he maintains that

the assault perpetrated on Mr. Librizzi was not sufficiently similar to the

attack on Mr. McEntire to prove his identity, since that crime occurred

several years later, the injuries were different, and it involved different

weapons. As it pertains to motive, he asserts that the bad acts in question

bear no logical connection to the homicide, and were, therefore, not

relevant.   Appellant concludes, that “the lower court erred by allowing the

Commonwealth to introduce the assault case from August of 2008 and the

Domestic arrest case from April 1, 2006.” Appllant’s brief at 29.

      Although we agree with Appellant that the prior bad acts in question

were not admissible pursuant to the motive exception to Rule 404(b), we

find that the trial court did not abuse its discretion in permitting the

Commonwealth to present evidence of Appellant’s arrest following his

domestic dispute with Ms. Joye. First, the telephone number linked to Ms.

Joye, who was dating Appellant at the time of Mr. McEntire’s murder, was

highly probative of the identity of his attacker. Mr. McEntire’s phone records

revealed that he made numerous calls to that phone number in the month

leading up to his death, including the final phone call he made.         Until

Appellant was arrested on April 1, 2006, the investigators were unable to




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connect that phone number to an individual, and this evidence linked

Appellant to the murder victim.

      Moreover,   the   evidence   that   Appellant    possessed   drugs,   drug

paraphernalia, and a large amount of cash at the time of his arrest was

probative of his conduct as a drug dealer, and his relationship with the

victim, who was a known crack cocaine addict. Not only was this evidence

probative of Appellant’s identity, insofar as it corroborated the victim’s

relationship with Appellant, it also supported the Commonwealth’s theory

that the victim died as a result of a drug-related dispute, i.e., that Appellant

attacked the victim because he believed the victim had stolen money and

cocaine from his drug organization.

      We also find the trial court did not abuse its discretion in admitting

evidence regarding the assault on Mr. Librizzi.       As we noted in Weakley,

supra, “[i]dentity as to the charged crime may be proven with evidence of

another crime where the separate crimes share a method so distinctive and

circumstances so nearly identical as to constitute the virtual signature of the

defendant.” In determining whether a crime is sufficiently similar under this

exception, we consider: “(1) the manner in which the crimes were

committed; (2) weapons used; (3) ostensible purpose of the crime; (4)

location; and (5) types of victims.”      Weakley, supra at 1189.       Finally,

“[r]emoteness in time between the crimes is also factored, although its




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probative value has been held inversely proportional to the degree of

similarity between crimes.” Id.

      Here, Mr. Kelly testified that Appellant assaulted Mr. Librizzi at Mr.

Kelly’s house.   N.T., 1/11/16, at 40.        He stated that Mr. Librizzi was a

“customer,” and that he lured him to the house by telling him he “needed

something.” Id. at 39, 42. Mr. Kelly attested that Appellant then physically

assaulted Mr. Librizzi because “[h]e was dealing [drugs] to people he

shouldn’t have been[.]” Id. at 40.      Likewise, as noted above, Appellant

spoke with Mr. McEntire, who then met him at Mr. Kelly’s residence.

Appellant then assaulted the victim because he suspected that Mr. McEntire

had stolen money and narcotics from Mr. Kelly, his partner in the drug

organization.    Additionally, we note that the Commonwealth proffered

evidence that Appellant utilized Mr. Kelly’s house as the base of his drug

operation.

      The attack on Mr. McEntire and the attack on Mr. Librizzi were

executed in the same manner, for similar purposes, in the same location,

and involved Appellant’s drug customers.          We find these circumstances

sufficiently similar as to be probative evidence that Appellant committed

both crimes. Weakley, supra. Finally, we find that the probative value of

this evidence outweighs its prejudicial effect, and in any case, the trial court

provided a proper jury charge explaining the limited basis for which the jury

could consider this evidence, and we presume it followed that instruction.

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N.T., 1/13/16, at 146, 166-167; Commonwealth v. Storey 167 A.3d 750,

758 (Pa.Super. 2017) (citation omitted). Thus, relief is not warranted.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2017




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