J. E04004/14

                              2015 PA Super 103

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                    v.                  :
                                        :
MYRON COX,                              :         No. 1831 WDA 2012
                                        :
                         Appellant      :


            Appeal from the Judgment of Sentence, October 1, 2012,
               in the Court of Common Pleas of Allegheny County
                Criminal Division at No. CP-02-CR-0016050-2011


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., PANELLA,
        DONOHUE, SHOGAN, MUNDY, OLSON, AND OTT, JJ.


OPINION BY FORD ELLIOTT, P.J.E.:              FILED APRIL 29, 2015

       Myron Cox appeals from the judgment of sentence of October 1, 2012,

following his conviction of criminal attempt (homicide), aggravated assault,

recklessly endangering, and other charges.       We vacate and remand for

re-trial.

                   The testimony in this case is summarized as
             follows. Taza Clardy testified that on August 31,
             2011, he was walking on the North Side of Pittsburgh
             toward a friend’s residence. Since his friend was not
             yet home, Clardy walked in the direction of
             Ashley Cochran[]’s residence, another acquaintance
             in the area. He saw Cochran[] speak with one of a
             number of individuals in front of her home, and then
             go inside. As Clardy waited on the street for his
             friend to arrive, he observed Appellant with another
             male and two females. Appellant was wearing black
             jeans and a black hoodie.          Clardy recognized
             Appellant from seeing him in the neighborhood.
             Appellant was standing next to a black BMW or
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          Mercedes. Clardy spoke with the two men briefly,
          discussing a CD that was playing.

                 After waiting approximately fifteen to twenty
          minutes, Clardy decided to walk to the Circle K
          convenience store. As he was walking up the street,
          texting on his phone, he heard one pop, then
          another. Clardy turned around and saw a person
          wearing a black hoodie and black jeans pointing a
          firearm at him. Clardy asked what the man was
          doing. The question was answered by Clardy seeing
          the flash of gunfire. Clardy ran and heard five or six
          more shots, one of which struck him in the leg. He
          told the paramedics that he did not know who had
          shot him because he was shot from behind. Clardy
          has a scar and residual pain in his leg as a result of
          the incident. He identified Appellant out of a photo
          array as a person in the area when he was shot.

                Ashley Cochran testified that she heard seven
          or eight gunshots that night from the living room in
          her house. When she heard the first shot, she
          grabbed her two year old son, who was sitting on her
          lap, and opened the door. She looked left, where
          she heard the gunfire, and saw Appellant come
          around the corner, put both hands in his pocket
          while staring at her, and get into the passenger side
          of a BMW. Appellant was dressed in a dark hoodie
          with the hood up and dark jeans. Ashley identified
          the driver as Jerome Cox, and testified that Jerome
          quickly turned the car around and drove away at a
          speed in excess of the posted limit.

                 Cochran also testified that she was involved in
          an incident earlier that month involving Appellant.
          Cochran observed a fight in front of her house
          involving a group of friends, Appellant and his
          brother Jerome. Jerome unsuccessfully attempted to
          collect a $5 debt from a game of Spades from a
          week before. The argument turned physical when
          Appellant punched Cochran’s friend from behind.

               Alexandra Poss, a neighbor, testified that she
          also heard gunshots.    Poss and her roommate,


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            Cayla Zahoran, got down on the floor because the
            shots sounded close. When she went upstairs, she
            observed bullet holes in her bedroom window.
            Zahoran’s account of the incident mirrored that of
            her roommate.

                  Forensic evidence established that the ten shell
            casings found at the scene were fired from the same
            weapon.

                  In contrast, Britney Brown testified that she
            was with Appellant at her cousin’s house for a
            cookout the entire day and night of August 31, 2011.
            Brown testified that the cookout was not scheduled
            because of any special occasion, yet a substantial
            amount of food was prepared for the Wednesday
            night affair. She and Appellant stayed overnight
            because they had been drinking and did not have a
            ride back. Brown testified that it seemed out of
            Appellant’s character to commit such an offense, but
            also testified to being unaware of Appellant’s
            numerous arrests, including several convictions for
            Possession with Intent to Deliver a Controlled
            Substance.

Trial court opinion, 3/27/13 at 3-5 (citations to the record omitted).

      Appellant has raised the following issues for this court’s review:

            I.    Was due process and the right to a fair trial
                  violated where the court permitted the
                  Commonwealth to introduce prior bad acts with
                  no notice given until the morning of trial,
                  where such acts were not proper 404(B)
                  evidence and where the evidence was overly
                  prejudicial?

            II.   Was the evidence insufficient to sustain the
                  conviction,   and   therefore  an enhanced
                  sentence, for attempted homicide with serious
                  bodily injury where, there was no evidence of
                  risk of death, serious impairment, protracted
                  loss, or permanent disfiguration; and should
                  not the sentence therefore be set at a


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                   maximum of 10-20 years instead of 20-40
                   years?

            III.   Did the court err in determining the defense
                   counsel open[e]d the door to character
                   evidence, and therefore appellant’s prior
                   criminal history when a question was asked of
                   a witness regarding their personal opinion of
                   [appellant]?

            IV.    Did the court err in failing to award a new trial
                   based on after-discovered evidence and did
                   this error result in [appellant] being denied due
                   process and a fair trial?

            V.     Was     the    sentence    imposed    manifestly
                   excessive, unreasonable, and an abuse of
                   discretion where a statutory maximum
                   sentence of total confinement was imposed
                   without      consideration    of   [appellant]’s
                   rehabilitative needs, or his nature and
                   characteristics, and where the court focused on
                   the seriousness of the offense to the exclusion
                   of other factors and does such a sentence
                   violate the norms underlying the Sentencing
                   Code?

Appellant’s brief at 6.

      In his first issue on appeal, appellant argues that the trial court should

not have admitted evidence regarding the fight prior to the shooting.

Appellant argues that the Commonwealth failed to give proper notice of its

intention to offer this evidence, and the evidence was irrelevant and

prejudicial. The Commonwealth responds that it did not become aware of

the fight involving appellant until just before trial, and immediately gave

notice to appellant. The Commonwealth contends that the evidence goes to

motive.


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          Our standard of review regarding the admissibility of
          evidence is an abuse of discretion.             “[T]he
          admissibility of evidence is a matter addressed to the
          sound discretion of the trial court and . . . an
          appellate court may only reverse upon a showing
          that the trial court abused its discretion.”
          Commonwealth v. Weiss, 565 Pa. 504, 776 A.2d
          958, 967 (2001) (citations omitted). “An abuse of
          discretion is not a mere error in judgment but,
          rather, involves bias, ill will, partiality, prejudice,
          manifest unreasonableness, or misapplication of
          law.” Commonwealth v. Hoover, 16 A.3d 1148,
          1150 (Pa.Super.2011).

Commonwealth v. Collins, 70 A.3d 1245, 1251-1252 (Pa.Super. 2013),

appeal denied, 80 A.3d 774 (Pa. 2013).

     Pennsylvania Rule of Evidence 404 provides, in relevant part:

          (b)   Crimes, Wrongs or Other Acts.

                (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


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                          general nature of any such evidence the
                          prosecutor intends to introduce at trial.

Pa.R.E., Rule 404(b), 42 Pa.C.S.A.

            Our Supreme Court has explained:

                  Evidence of a defendant’s prior criminal
                  activity is inadmissible to demonstrate
                  his bad character or criminal propensity.
                  The same evidence may be admissible
                  for various legitimate purposes, however,
                  provided that its probative          value
                  outweighs the prejudicial effect likely to
                  result from its admission, . . . and an
                  appropriate limiting instruction is given.
                  One such evidentiary purpose is . . . to
                  demonstrate the defendant’s motive for
                  committing the crime charged.

Collins, 70 A.3d at 1252, quoting Commonwealth v. Paddy, 800 A.2d

294, 307 (Pa. 2002) (citations omitted).        “To be admissible under this

exception, there must be a specific ‘logical connection’ between the other act

and the crime at issue which establishes that the crime currently being

considered grew out of or was in any way caused by the prior set of facts

and circumstances.” Commonwealth v. Ross, 57 A.3d 85, 100 (Pa.Super.

2012) (en banc), appeal denied, 72 A.3d 603 (Pa. 2013) (quotation marks

and citations omitted).

            It has been succinctly stated that (t)he purpose of
            this rule is to prevent the conviction of an accused
            for one crime by the use of evidence that he has
            committed other unrelated crimes, and to preclude
            the inference that because he has committed other
            crimes he was more likely to commit that crime for
            which he is being tried. The presumed effect of such
            evidence is to predispose the minds of the jurors to


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             believe the accused guilty, and thus effectually to
             strip him of the presumption of innocence.

Commonwealth v. Kinard, 95 A.3d 279, 284 (Pa.Super. 2014) (en banc),

quoting Commonwealth v. Spruill, 391 A.2d 1048, 1049 (Pa. 1978).

        The evidence regarding the fight between appellant, his brother, and

Cochran’s friends was not relevant to show motive in this case. The victim,

Clardy, was not present during the card game or the subsequent fight over

the $5 debt which occurred earlier in the month from this incident.          The

Commonwealth’s theory was that appellant shot Clardy because he was still

angry about the $5 debt.           However, it was actually appellant’s brother,

Jerome, who was owed the $5. Even if appellant got into a fight with one of

Cochran’s friends, this would not establish a motive to shoot Clardy.        The

fight preceding the shooting is simply not relevant. The Commonwealth has

failed to demonstrate any logical connection between the two, other than the

fact that some of Cochran’s friends were involved in the fight, and Clardy

also happens to be a friend of Cochran’s. This is a tenuous connection at

best.    Cf. Collins, supra (evidence the defendants were involved in the

drug trade was admissible to show motive for killing member of rival drug

distribution organization).

        In fact, Clardy testified that he had seen appellant around the

neighborhood,    including    at    Cochran’s   house.   (Notes   of   testimony,

4/11-13/12 at 54-55.) Appellant lived across the street from Cochran. (Id.

at 64.) Clardy testified that he had never had any problems with appellant


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in the past. (Id.) Immediately prior to the shooting, Clardy was having a

conversation with appellant and Jerome about a hip-hop album. (Id. at 59.)

Clardy testified their interaction was normal and he did not feel he was in

any danger.    (Id. at 87-89.)    Similarly, Cochran testified that Clardy had

nothing to do with the card game dispute, and that prior to that incident,

she had a good relationship with the Cox family, including appellant. (Id. at

122-123, 127.) Cochran and appellant used to sit on her porch late at night

and play cards. (Id. at 127.)

     Any probative value the incident has is outweighed by its prejudicial

effect, particularly in this case, where the evidence is circumstantial.

Neither Clardy nor Cochran could identify appellant as the shooter, only that

he was in the area and was wearing similar clothing. Therefore, it cannot be

said that admission of this evidence was harmless error in the face of

overwhelming evidence of guilt.

     The trial court opines that, in the alternative, the fight was part of the

history of the case and was admissible as res gestae. (Trial court opinion,

3/27/13 at 7 n.2.)   See Commonwealth v. Burton, 770 A.2d 771, 778

(Pa.Super. 2001), appeal denied, 868 A.2d 1197 (Pa. 2005), overruled

on other grounds by Commonwealth v. Mouzon, 812 A.2d 617 (Pa.

2002) (evidence of other crimes, wrongs, or bad acts is admissible where

they were part of a chain or sequence of events which formed the history of

the case and were part of its natural development, also known as the



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“complete    story”     rationale)   (citations     omitted).         However,     the

Commonwealth sought to admit the evidence on the basis that it was

relevant to prove motive, not as res gestae.                    The fight occurred

approximately one month prior to the shooting and Clardy was not even

involved. Furthermore, as stated above, whatever tenuous connection can

be shown between the previous fight and the subsequent shooting would be

outweighed by its prejudicial impact.             Apparently, the only basis for

admitting the evidence was to show that appellant is a violent individual,

which is, of course, impermissible.             The Commonwealth attempted to

portray appellant as unreasonable and impulsive, precisely the sort of

individual who would fly off the handle and shoot someone over a

$5 gambling debt. (Notes of testimony, 4/11-13/12 at 301-302.) However,

it is well settled that other bad acts evidence is inadmissible to prove a

defendant’s propensity to commit the crime charged.             Kinard, 95 A.3d at

284, citing Commonwealth v. Brookins, 10 A.3d 1251, 1256 (Pa.Super.

2010), appeal denied, 22 A.3d 1033 (Pa. 2011).

     We     determine     it   was   an    abuse    of   discretion   to   allow   the

Commonwealth to present this evidence regarding the fight between

appellant and Cochran’s friends as proof of motive to shoot the victim,

Clardy.   As we find appellant’s first issue to be dispositive, we need not

address his remaining claims, including lack of adequate notice.




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      Judgment of sentence vacated.      Remanded for re-trial.    Jurisdiction

relinquished.

      Bender, P.J.E., Panella, Donohue, and Ott, JJ. join the Opinion.

      Shogan, J. files a Dissenting Opinion which is joined by Gantman, P.J.,

Mundy, and Olson, JJ.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/29/2015




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