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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
' PENNSYLVANIA

v.

JosEPH MIN,
Appe||ant No. 29 WDA 2016
Appeal from the Order December 10, 2015
in the Court of Common Pleas of A||egheny County
Criminal Division at No(s): CP-OZ-CR-0001894-2013

BEFORE: FORD ELLIO`|_|', P.J.E., SHOGAN, and STRASSBURGER,* JJ.
CONCURRING MEMORANDUM BY STRASSBURGER, J.: FILED: Apri| 12, 2017

I agree With the result reached by the Majority, as Well of most of the
Majority's analysis. However, I disagree With the Majority's application of
the res gestae exception to the rule that other bad acts are inadmissible.

Appe||ant claims that trial counsel “was ineffective for eliciting
testimony regarding appellant's illegal drug use and/or failing to request a
cautionary instruction.” Majority Memorandum at 13. The jury heard that
Appe||ant met S.E.'s mother through a mutual friend (Brown) When they
Were all receiving treatment for drug and alcohol addiction. Id. at 14.
Appe||ant and Brown Were roommates at a halfway house to Which S.E.
often Went for meetings and to play billiards. Id. The Majority holds that

this other-bad-acts evidence Was admissible as part of the history of the

case, to explain how Appe||ant met S.E. and her family. Id. at 13-15.

*Retired Senior Judge assigned to the Superior Court.

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Such a broad application of the res gestae exception would result in its
swallowing the rule. A review of the case law reveals that the exception was
designed to allow such evidence only when its omission would render the
narrative of the case nonsensical.

This Court's opinion in Commonwealth v. Brown, 52 A.3d 320, 328-
32 (Pa. Super. 2012), is instructive. In that case, Brown, a licensed
physician, was on trial for running a “scripts-for-cash" scheme from his
home; specifically, he was charged with writing prescriptions between June
2002 and June 2004 for six patients that were not warranted by medical
standards. In its case, the Commonwealth offered evidence that in the late
1970s and early 1980s Brown fraudulently obtained his medical degree and
had submitted forged or altered documents to get his license. The trial court
admitted the evidence as part of the history of the case.

On appeal, this Court extensively reviewed the history and purpose of
the common law res gestae exception to the exclusion of other-bad-acts
evidence. Bacl< in 1883, for example, our Supreme Court indicated that
“[t]he collateral or extraneous offence [sic] must form a link in the chain of
circumstances or proofs relied upon for conviction...." Id. at 330 (quoting
Swan v. Commonwealth, 104 Pa. 218, 220 (1883)). Focusing more on
the necessity of interconnectedness, the Brown Court cited
Commonwealth v. Coles, 108 A. 826, 827 (Pa. 1919), in which the Court

asserted that

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bad acts evidence “is necessarily admissible as to acts which are
so clearly and inextricably mixed up with the history of
the guilty act itself as to form part of one chain of
relevant circumstances, and so could not be excluded on
the presentation of the case before the jury without the
evidence being rendered thereby unintelligible."

Brown, 52 A.3d at 330-31 (quoting Commonwealth v. Coles, 108 A. 826,
827 (Pa. 1919)) (emphasis added in Brown).

An example of such inextricable entanglement is provided in
Commonwealth v. Lark, 543 A.2d 491, 497 (Pa. 1988). In that case,

[Larl<] was charged with murdering the owner of a take-out
restaurant, possession of an instrument of crime, terroristic
threats involving repeated threats made to a prosecuting
attorney, and kidnapping a woman and her two children by
holding them hostage while attempting to elude capture by
police. The murder victim identified [Larl<] as the person who
robbed him of over $4,000 in cash and he was scheduled to
testify at a preliminary hearing the clay after his death. Lark was
prosecuted by Assistant District Attorney Charles Cunningham
for the robbery, despite the death of the witness. [Larl<]
threatened Cunningham and absconded during the robbery trial.
The robbery trial continued, and [Larl<] telephoned threats to the
prosecutor. He also threatened two detectives attempting to
apprehend him. Officers eventually located [Larl<], but he fled
into the home of a woman and her two children and held them
hostage for two hours. When [Larl<] was apprehended, he had
the addresses of the prosecutor and the prosecutor's grandfather
in his possession. In the context of discussing why severance of
the charges was inappropriate, our Supreme Court highlighted
that each crime was necessarily interwoven with the others and
flowed directly from one another.

Brown, 52 A.3d at 331-32. Thus, the narrative made no sense unless all of

the bad acts were understood.

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Summarizing its review of these cases and others, the Brown Court
stated that “the history of the res gestae exception demonstrates that it is
properly invoked when the bad acts are part of the same transaction
involving the charged crime." Brown, 52 A.3d at 332.

The Court ultimately concluded that Brown was entitled to a new trial:

It stretches the res gestae exception beyond its breaking point
to consider [Brown's] acts, in and before 1984, related to
gaining a medical degree and license, as part of the natural
sequence of events that led to [Brown] allegedly dealing
prescription drugs illegally from 2002 through 2004.

>l<>l<>l<

[T]he alleged bad acts are so far removed from the charged
crimes that it strains credulity to consider them as a natural part
of the history, chain, or sequence of events in the case when
considering the exception in light of its history. The bad acts do
not establish [Brown's] relationship with his patients, nor are
they part of the same transaction or interwoven in such a
manner that failing to elucidate the jury to the information would
render the case unintelligible. The prior alleged crimes are
dissimilar in kind and purpose to the drug crimes and have no
direct connection to the events that transpired in 2002 through
2004.

Id. See also Commonwealth v. Green, 76 A.3d 575 (Pa. Super. 2013)
(holding evidence that Green pointed a gun at the victim in an unrelated
incident months before the victim was murdered was not admissible under
res gestae exception, as it “was in no way part of the same transaction or
sequence of events that constituted the crime for which [Green] was being
tried”; however, the evidence was admissible to prove motive or absence of

mistake).

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In the instant case, Appe||ant's status as a recovering addict does
explain how he came to know S.E., but it is not part of the same transaction
or sequence of events as his sexual relationship with S.E., and is nowhere
near being so interconnected as to be inseparable from the relevant
narrative as were the events were in Lark. While there are references to
drug and alcohol treatment scattered through the testimony, it would not
have been difficult to have avoided those issues.

For example, when asked about how she met Appe||ant, S.E. said she
met him through her mother. N.T., 1/27-31/2014, at 34. On follow up, she
said “She was living in McKees Rocks at the time, and she met [Appellant]
through a mutual friend. They were all receiving treatment for drugs and
alcohol.” Id. at 35. Clearly, the mutual-friend explanation was sufficient,
the rehab info was not necessary. Similarly, references to the club where
they would hang out could have omitted its relationship to recovery
meetings (as could the status of the place where Appe||ant and the mutual
friend lived as a halfway house), and her mother's taking her to meetings
did not have to mention 12-step programs. Id. at 37. Likewise, S.E.'s
testimony that she and Appe||ant broke up after S.E. saw a text from
another woman “asking for sex after one of their anonymous -- drug
anonymous meetings" was gratuitous; she could have just indicated (as the
prosecutor rephrased in the next question) that she broke it off because she

thought he cheated on her. Id. at 53. Further, S.E.'s testimony that she

_5_

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knew what she was doing with Appe||ant was illegal, but she was going
through a rough time and not getting much attention at home because, inter
alia, her mother had relapses was completely separable from Appe||ant's
status as a recovering addict. Id. at 51-52.

Because Appe||ant's past drug use has nothing to do with the issue at
trial, i.e., whether he had a sexual relationship with S.E., and it is not so
inextricably intertwined with the relevant issues that omission of such
evidence would have made the story unintelligible, I believe that there is
arguable merit to the claim that counsel should have sought to exclude
references to Appe||ant's addiction history.

However, I agree with the Majority's conclusion that the evidence was
“not particularly prejudicial" because there was no indication that Appe||ant
was ever convicted of any drug crimes or relapsed. See Majority Memo at
15-16. Appe||ant has not convinced me that the outcome would have been
different had counsel sought to exclude the references to his drug history.
Commonwealth v. Hutchinson, 25 A.3d 277, 285 (Pa. 2011) (“To
establish [prejudice], Appe||ant must show that there is a reasonable
probability that the outcome of the proceedings would have been different
but for counsel's action or inaction.”). Thus, I would affirm the PCRA court's

denial of the claim on the basis Appe||ant has failed to establish prejudice.

