J-A16022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellant

                    v.

KASIM GIBSON

                          Appellee                  No. 2788 EDA 2014


               Appeal from the Order Entered August 26, 2014
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0006605-2013


BEFORE: LAZARUS, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                        FILED OCTOBER 30, 2015

      Appellant, the Commonwealth of Pennsylvania (the Commonwealth),

appeals by permission from the interlocutory order, entered on August 26,

2014, denying its motion in limine seeking to admit other acts evidence

pursuant to Pa.R.E. 404(b). Upon review, we affirm.

      The facts of this case, as alleged in the Commonwealth’s motion in

limine, are as follows:

        On April 30, 2013, at approximately 12:45 p.m. in the area
        of 800 N. 17th Street the defendant[, Kasim Gibson
        (Gibson),] engaged in a brief conversation with
        45[-]year[-]old Lanice Manuel, he then reached into the
        front of his sweatpants, retrieved a small object, [and]
        handed it to Ms. Manuel. In return, Ms. Manuel handed
        [Gibson] United States [c]urrency. Officers stopped Ms.
        Manuel in the area of 1800 Wyle Street and recovered one
        red tinted packet of crack cocaine. Officers then returned to
        the area of 800 N. 17th Street and observed [Gibson] sitting



*Retired Senior Judge assigned to the Superior Court.
J-A16022-15


          on the steps of 1635 Francis Street.         Recovered from
          [Gibson] was $325[.00].

Trial Court Opinion, 1/5/2015, at 2.

       The Commonwealth charged Gibson with delivery of a controlled

substance and simple possession of a controlled substance.1         On July 29,

2014, the Commonwealth filed a motion in limine to admit other acts

evidence pursuant to Pa.R.E. 404(b).             The Commonwealth sought to

introduce three professionally produced on-line rap music videos featuring

Gibson.     More specifically, in the motion in limine, the Commonwealth

alleged the following:

          On January 2, 2014, [Gibson] published a video entitled
          “F**ked Up” on YouTube.         [Two-minutes and thirteen
          seconds into the video, Gibson] says, “started selling crack
          at 17th and Ridge[,] no coat just a hoodie on and it was cold
          as s[h]it so f**ked up I being serving my man mom so
          f**ked up I’m losing my damn mind.”

          On February 19, 2014, [Gibson] published a video entitled
          “Do Ya Hear Me.” At 56 seconds [into the video,] [Gibson]
          says, “my favorite color green, but for me to get that green
          I had to sell white.” [Gibson] is standing at the Francisville
          Recreation Center. At [one-minute and 20 seconds, Gibson]
          says, “cash rules everything around me cream get the
          money I’m trying to lean on the money plotting on the
          paper watch me scheme for that money starting with a
          block on every 16th be hard I’m always have feens whether
          its music or selling coke all I want to know is do you niggas
          hear me.” At [two minutes and thirty-seven seconds into
          the video, Gibson] says, “are we talking fact or are we
          talking bout fiction when I say I’m in the mix [I’m] talking

____________________________________________


1
    35 P.S. §§ 780-113(a)(30) and 780-113(a)(16), respectively.



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        about the tracks when I say I’m dishing dimes I’m talking
        about slinging crack.”

        On April 9, 2014, [Gibson] published “Made it Off Caine” On
        YouTube. At [one minute and 34 seconds into the video,
        Gibson] says, “whip that shit till my hand ache, whip that
        shit like I’m trying to make pancakes, scrape everything off
        the damn plate, I got rocks the size of your damn face, I
        talk this shit cause every day I live it, pray to [G]od cause
        every day I’m sinning, I ain’t lying I got stacks in my
        pockets, tell em like this when they ask how I got it made
        all this shit off caine.”

Id. at 2-3 (footnotes omitted).

     Moreover, as the trial court noted, “[t]he videos are professionally

produced, with high quality camera work, and high quality video and audio

editing, depicting multiple venues, singers and supporting cast members.”

Id. at 3. The locations depicted in the videos are within several blocks from

where police stopped Gibson and Ms. Manuel. Id. at 2, n.1-2. Gibson did

not produce the videos and he did not post them on YouTube. Id. at 3.

     On August 20, 2014, Gibson filed a response in opposition to the

Commonwealth’s motion in limine. On August 21, 2014, the American Civil

Liberties Union of Pennsylvania (ACLU-PA) also filed a brief in opposition to

the Commonwealth’s motion in limine. On August 26, 2014, the trial court

held a hearing on the motion and denied relief. On September 5, 2014, the

Commonwealth filed a motion for reconsideration. On September 9, 2014,




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the trial court held a hearing and again denied relief.   This timely appeal

resulted.2

       On appeal, the Commonwealth presents the following issue for our

consideration:

         Where [Gibson] is charged with selling cocaine and the
         defense theory is that the money he possessed following an
         apparent drug sale came from a legitimate source, did the
         lower court err in excluding from evidence videos made by
         [Gibson] in which he proclaims [to] have “stacks of money
         in his pocket” from “selling coke”?

Commonwealth’s Brief at 1 (original brackets omitted).

       The Commonwealth contends that the trial court abused its discretion

and substantially handicapped the prosecution “from introducing [Gibson’s]

own videos bragging of his cocaine selling.” Id. at 6. The Commonwealth’s

argument is comprised of three sub-parts. First, the Commonwealth argues

that the videos are relevant under Pa.R.E. 404(b) to show motive and intent.

Next, the Commonwealth avers the videos are relevant and constitute

admissions by Gibson that show a common scheme or modus operandi.

Finally, the Commonwealth argues that the videos are necessary for an


____________________________________________


2
  On September 26, 2014, the Commonwealth filed a notice of appeal, and
a corresponding concise statement of errors complained of on appeal under
Pa.R.A.P. 1925(b), seeking review of an interlocutory order by permission
pursuant to Pa.R.A.P. 1311. The trial court continued the trial date pending
resolution of this appeal and filed an opinion pursuant to Pa.R.A.P. 1925(a)
on January 5, 2015. In addition, ACLU-PA filed an appellate amicus brief on
behalf of Appellant for our consideration.



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anticipated defense that the money police found on Appellant upon arrest

came from a legitimate source. We will examine these contentions in turn.

      First, however, we set forth our standard of review.    We review the

denial of a motion in limine for an abuse of discretion. Commonwealth v.

Johnson, 107 A.3d 52, 68 (Pa. 2014) (citation omitted).        “An abuse of

discretion is more than just an error in judgment and, on appeal, the trial

court will not be found to have abused its discretion unless the record

discloses that the judgment exercised was manifestly unreasonable, or the

result of partiality, prejudice, bias or ill-will.” Id.

      In the first portion of its argument, the Commonwealth contends that

the videos are relevant under Pa.R.E. 404(b) to show “evidence of other

crimes, wrongs, or acts” to prove such things as “motive, opportunity,

intent, preparation, plan, knowledge, and identity” and that the probative

value of the videos outweighs the potential for prejudice. Commonwealth’s

Brief at 8, citing Pa.R.E. 404(b)(2) and (3) (brackets omitted).         The

Commonwealth argues that Gibson’s “own proclamations in the videos of

‘having stacks [of money] in [his] pocket’ from ‘selling coke’ and ‘caine’ in

that neighborhood” are relevant to prove his intent. Id.

      This Court has stated:

         Relevance is the threshold for admissibility of evidence.
         Pennsylvania Rule of Evidence 401 provides as follows:

             Rule 401. Test for Relevant Evidence

             Evidence is relevant if:

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          (a)   it has any tendency to make a fact more or
                less probable than it would be without the
                evidence; and

          (b)   the fact is of consequence in determining the
                action.

       Pa.R.E. 401. 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.

       ‘All relevant evidence is admissible, except as otherwise
       provided by law. Evidence that is not relevant is not
       admissible.’ Pa.R.E. 402. ‘The court may exclude relevant
       evidence if its probative value is outweighed by a danger of
       one or more of the following: unfair prejudice, confusing the
       issues, misleading the jury, undue delay, wasting time, or
       needlessly presenting cumulative evidence.’ Pa.R.E. 403.

       Pennsylvania Rule of Evidence 404(b) provides as follows:

          Rule 404. Character Evidence; Crimes or Other
          Acts

                          *      *    *
          (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.


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        Pa.R.E. 404(b)(1)-(2). Evidence of [other acts] is not
        admissible for the sole purpose of demonstrating a criminal
        defendant's propensity to commit crimes. Nevertheless,
        evidence may be admissible in certain circumstances where
        it is relevant for some other legitimate purpose and not
        utilized solely to blacken the defendant's character.
        Specifically, [other acts] evidence is admissible if offered for
        a non-propensity purpose, such as proof of an actor's
        knowledge, plan, motive, identity, or absence of mistake or
        accident. When offered for a legitimate purpose, evidence
        of [other acts] is admissible if its probative value outweighs
        its potential for unfair prejudice.

Commonwealth v. Tyson, 2015 PA Super 138, at *3 (all case citations and

some quotations omitted).

      As the Commonwealth alleges, “evidence of [other] acts is admissible

where there is a legitimate reason for the evidence, such as to establish

motive [or intent].” Commonwealth v. Dowling, 883 A.2d 570, 578 (Pa.

2005) (citation omitted).    “In order for evidence of [other] acts to be

admissible as evidence of motive, the [other] acts must give sufficient

ground to believe that the crime currently being considered grew out of or

was in any way caused by the prior set of facts and circumstances.” Id.

     Moreover, this Court has previously determined:

        With a modicum of effort, in most cases it is possible to
        note some similarities between the accused's [other acts]
        and that alleged in a current case. To preserve the purpose
        of Rule 404(b)(1), more must be required to establish an
        exception to the rule—namely a close factual nexus
        sufficient to demonstrate the connective relevance of the
        [other] acts to the crime in question. […T]his Court has
        warned that [other] acts may not be admitted for the
        purpose of inviting the jury to conclude that the defendant
        is a person ‘of unsavory character’ and thus inclined to have
        committed the crimes with which he/she is charged.

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Commonwealth v. Ross, 57 A.3d 85, 104-105 (Pa. Super. 2012) (en

banc).

       Further, while the videos at issue were posted to YouTube after the

charged crimes,3 we have previously determined “Rule 404(b) does not

distinguish between prior and subsequent acts.” Commonwealth v.

Kinard, 95 A.3d 279, 285 n.3 (Pa. Super. 2014). “Evidence of subsequent

[acts] is less strongly probative of intent than prior offenses since it does not

establish that a defendant possessed the requisite intent prior to the

commission of the crime being tried.”            Commonwealth v. Martinez, 447

A.2d 272, 274 (Pa. Super. 1982). “Evidence of a later [act] is so tenuously

related to intent at the time of an earlier [act] that it is admissible only if

proof of both [] is necessary to prove the Commonwealth's case.” Id.

       There are two prior Pennsylvania decisions dealing specifically with rap

video evidence – Commonwealth v. Ragan, 645 A.2d 811 (Pa. 1994) and

Commonwealth v. Flamer, 53 A.3d 82 (Pa. Super. 2012).                        The

Commonwealth barely touches upon them.               See Commonwealth’s Brief at

13. We find it necessary to summarize those cases.

       In Ragan, Ragan was convicted of first-degree murder, recklessly

endangering another person, and possessing an instrument of crime after an

altercation on a basketball court led to a fatal shooting. On appeal to our
____________________________________________


3
    There is no evidence as to when the videos were filmed or produced.



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Supreme Court, Ragan argued “that the trial court improperly admitted a rap

song recorded by [his] rap group the ‘Plush Brothers.’” Ragan, 645 A.2d at

820. Ragan claimed that the rap was irrelevant because the lyrics generally

spoke to gun violence and shooting people, but did not specifically reference

the murder at issue. Id. Our Supreme Court noted, however, “the song in

question was introduced in response to testimony on direct examination in

which [Ragan] had portrayed himself as a college student and an artist.”

Id.   The Supreme Court determined “[t]he fruits of [Ragan’s] artistic

leanings were clearly relevant to rebut this testimony.”   Id.   Moreover, in

determining that the rap lyrics’ probative value outweighed the prejudice to

Ragan, our Supreme Court relied upon its prior decision in Commonwealth

v. Abu-Jamal, 555 A.2d 846 (Pa. 1989) wherein it held “that the admission

of a literary work in which the defendant stated that ‘power grows out of the

barrel of a gun’ was relevant to rebut the character testimony that the

defendant was a ‘peaceful and genial’ man[.]”        Id. The Ragan Court

concluded the trial court did not abuse its discretion in admitting the rap

lyrics at issue.

      Here, Ragan does not presently support reversal. The Commonwealth

is not, at this time, seeking to rebut character evidence in an effort to

impeach Gibson. Moreover, there has been no proffer of such evidence and

no effort by Gibson, as of yet, to offer a legitimate source defense for the




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found currency.     Thus, a pretrial order directing the admission of the rap

videos is premature at this point. However, we note that if Appellant places

his character at issue, or alleges at trial the currency recovered from him

derived from a legitimate source, then, as we discuss more fully later in

relation to the third subpart of the Commonwealth’s contention, the

Commonwealth can renew its request to admit the rap videos.

      Other cases relied upon by the Commonwealth do not support its

contention that it is immediately entitled to relief on grounds that Gibson’s

rap videos constitute admissions. In Flamer, the Commonwealth sought to

introduce evidence that, while imprisoned on murder charges, Flamer

conspired to murder a witness. More specifically, “the Commonwealth filed a

motion in limine, where it sought to introduce fifteen pieces of evidence to

establish that Nafeast [Flamer] and Marvin [Flamer] conspired” with another

man to murder the witness. Flamer, 53 A.3d at 84. Listed among those

pieces of evidence were “Nafeat’s personal raps and writings recovered from

his prison cell.”   Id. at 86.   The trial court denied the Commonwealth’s

request to admit the recovered raps and writings.        A panel of this Court

ultimately determined:

        [T]he trial court abused its discretion in finding the writings
        and raps of Nafeast to be irrelevant and prejudicial. In these
        raps, Nafeast talks about people ‘keeping their mouths
        shut’, sending his friends to kill for him, and ‘popping shells’
        in people that ‘run their mouth.’ These statements in the
        raps have a tendency to show contemplation for a
        conspiratorial arrangement; therefore, these statements are
        relevant. Although these statements are also prejudicial, the

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           fact that these statements are harmful to the defendant's
           case does not make these statements unduly prejudicial.
           Statements that are on balance prejudicial are statements
           that inflame the jury to decide the case on that evidence
           alone and not legal propositions. These statements do not
           rise to that level of prejudice. Therefore, the trial court
           abused its discretion in finding the relevant statements in
           these raps inadmissible.

Id. at 89-90.

     In the case sub judice, the trial court determined:

           Flamer provides no precedent for admission of the videos
           in this case. To the contrary, the reason for admitting the
           rap lyrics written by Flamer and found in his prison cell, was
           that they showed a contemplation for the conspiracy to kill
           a Commonwealth witness. Thus, the rap lyrics were
           admissible because they related to and were in the course
           of the conspiracy. Here, by contrast, the music videos do
           not evidence a similar tie-in. As the Flamer court noted, it
           was not an abuse of discretion to exclude a rap by
           [Appellant], where ‘the rap was too vague to be construed
           as being about the case.’

Trial Court Opinion, 1/5/2015, at 6 (footnotes omitted).

     We agree.        Unlike Flamer, where the Commonwealth charged the

defendant with conspiring to kill a witness and a conviction turned on proof

that Flamer entered into an agreement with the intent to commit murder,

the Commonwealth here charged Gibson with actual delivery of crack

cocaine.     Under such circumstances, Gibson’s intent and/or mens rea is

substantially less relevant and we concur with the trial court’s assessment,

at this time. The videos would be of little assistance to the jury and would

only create an impermissible inference that Gibson was a bad person. Here,

there were purported eyewitnesses to the charged offenses and police

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recovered physical evidence – cash from Gibson and narcotics from Ms.

Manuel.       Thus, the instant rap videos are unnecessary to prove the

Commonwealth’s case. Moreover, we recognize that Flamer dealt with rap

lyrics that prison officials confiscated directly from his cell.        Accordingly,

there was strong indicia that Flamer was the individual who wrote those

lyrics.     Hence, that scenario is different from the situation presented here,

where there were multiple people involved in the production and authorship

of the rap videos.4

          Next, the Commonwealth contends that the rap videos constitute

admissions by Gibson and, therefore, the trial court erred in precluding

them. Relatedly, the Commonwealth avers that the videos are significant to

show a common scheme or modus operandi for drug trafficking as described

by Gibson’s own admissions.              Commonwealth’s Brief at 10-11.          The

Commonwealth argues “[o]ther bad acts evidence is particularly admissible

where it constitutes an admission of guilt.” Id. at 8. More specifically, the

Commonwealth        contends      “the   statements   made   in   the   videos   are

unquestionably admissions” because Gibson “boasts specifically about

making money selling crack cocaine while directly referencing or being

visually depicted in a location that is within a three-block radius of the scene

of the instant crime.” Id. at 14.
____________________________________________


4
  It must be noted that there is nothing in the certified record, including the
rap videos themselves, which identifies who wrote the rap song lyrics.



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        In arguing “other bad acts evidence is particularly admissible where it

constitutes an admission of guilt[,]” the Commonwealth relies upon our

Supreme Court’s decisions in Commonwealth v. Dreibelis, 426 A.2d 1111

(Pa. 1981), Commonwealth v. Brohnstein, 691 A.2d 907 (Pa. 1997), and

Commonwealth v. Vandivner, 962 A.2d 1170 (Pa. 2009).                  Id. at 8.

Those cases, however, are distinguishable from the instant case, because

they involved statements made by the defendants concerning detailed

particulars related to the crimes for which they were being prosecuted.

        In Dreibelis, two witnesses testified regarding statements they heard

Dreibelis make concerning a conspiracy and killing.      One of the witnesses

testified that she overheard Dreibelis speaking with his co-conspirators

about leaving evidence at the scene and questioning why they left witnesses

alive at the scene. Dreibelis, 426 A.2d at 1113. This witness also testified

that Dreibelis and his co-conspirators “changed out of their clothes and

burned the clothing they had been wearing” and “cut and dyed their hair and

shaved their beards.”       Id.   The other witness testified that Dreibelis

admitted to her that he went with his co-conspirators to the murder victim’s

home to collect a debt and shot him when he reached for a knife.          Id. at

1114.     She also testified that Dreibelis told her “they buried their guns and

they d[y]ed their hair and they shaved.” Id. Our Supreme Court found “no

error in the admission of the testimony at issue.” Id. at 1115. The Court

determined that the evidence was relevant, but left to the factfinder to


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determine its weight.      Id.    Although Dreibelis involved evidentiary

admissions, it did not involve “other bad acts.”

      In Bronshtein, the Supreme Court determined that a defendant’s

admission of one murder was permitted in the criminal prosecution for

another murder.    Bronshtein was on trial for the robbery and homicide of

Alexander Gutman, the owner of a jewelry store in the King of Prussia

Shopping Center.     Bronshtein initially confessed to police that he robbed

and killed another jeweler named Jerome Slobotkin over a month after the

Gutman murder at issue, in the same geographical area.    Later, Brohenstein

recanted and claimed someone else had committed the two murders.

Brohnstein, 691 A.2d at 916-917. The Supreme Court determined that the

admission to police regarding Slobotkin was admissible to establish a

common scheme or plan in the Gutman murder trial. Id. at 915-916. The

Brohnstein Court concluded:

        Slobotkin and Gutman, both identified as Russian–Jews,
        were murdered with firearms in the course of robberies at
        their respective jewelry stores. Both victims were shot in
        the head at close range. [Bronshtein] initially denied his
        involvement in both crimes but told police that he knew who
        had committed the crimes. Although [Bronshtein] initially
        confessed to the Slobotkin murder, he later recanted that
        confession and told police that the two murders had been
        committed by the same person, a mysterious ‘Mr. X.’
        Finally, the Slobotkin murder was committed only five
        weeks after the Gutman murder. Given the similarities
        between these two crimes occurring only weeks apart,
        evidence indicating the identity of the perpetrator of the
        Slobotkin murder was admissible for the purpose of
        establishing the identity of the perpetrator of the Gutman
        murder through a common scheme, plan or design.

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Id. at 916.

        Finally,   in   Vandivner,   police   apprehended   Vandivner   after   an

altercation wherein he shot two people. At the police barracks, Vandivner

stated, “This is a death penalty case and I don’t want the needle, life for a

life.   Tell the DA I will plead guilty to life.   I would have killed myself if I

knew Michelle was dead.”         Vandivner, 962 A.2d at 1174.       The Supreme

Court declared:

          [T]he content of the statement obviously was relevant: it
          was an admission of guilt. In addition, the statement had
          substantial probative value in that [Vandivner] in effect
          admitted that he knew precisely what he had done including
          the potential consequences of his conduct. That awareness,
          in turn, was relevant to rebut his trial claims of voluntary
          intoxication and diminished capacity.

Id. at 1181. Vandivner involved a direct admission to police for a crime

that was the subject of the defendant’s trial.

        As the foregoing cases establish, our Supreme Court has allowed, as

non-hearsay, a defendant’s admissions regarding crimes that are the subject

of a trial.   It has also allowed, under Rule 404(b), evidence of other acts

where that testimony established a common scheme or plan. In this case,

neither of those two criteria have been met.         First, the rap videos are not

admissions. There are no specific references to the crime at hand. In fact,

there is no evidence that Gibson even wrote the lyrics as opposed to merely

reciting them.          At best, the videos are artistic expressions that the

Commonwealth seeks to admit to show Gibson’s propensity to commit

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crimes. The cited cases all involved specific admissions relative to the case

at hand, which were made directly to a third party.    In this case, as noted

by the trial court, the videos “were produced and directed by persons and

entities other than [Appellant].” Trial Court Opinion, 1/5/2015, at 3 While

the lyrics generally reference the neighborhood where the crime was

allegedly committed, Appellant does not specifically reference the crime in

controversy, let alone admit that he committed it. Thus, the rap videos do

not constitute an admission to the crimes charged and we discern no abuse

of discretion by the trial court for denying the Commonwealth’s request to

admit the videos as an admission to a crime.

     Regarding common plans and schemes under Rule 404(b), a panel of

this Court recently determined:

        When ruling upon the admissibility of evidence under the
        common plan exception, the trial court must first examine
        the details and surrounding circumstances of each criminal
        incident to assure that the evidence reveals criminal
        conduct which is distinctive and so nearly identical as to
        become the signature of the same perpetrator. Relevant to
        such a finding will be the habits or patterns of action or
        conduct undertaken by the perpetrator to commit crime, as
        well as the time, place, and types of victims typically chosen
        by the perpetrator.

Commonwealth v. Tyson, 2015 PA Super 138, at *3 (emphasis added).

     Initially we note that in reviewing the decided cases in this area of law,

we uncovered a case dealing with a literary work describing prior purported

crimes. In Commonwealth v. Einhorn, 911 A.2d 960 (Pa. Super. 2006),

Einhorn was on trial for the murder of his girlfriend, Holly Maddux. A prior

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panel of this Court determined that it was proper for the Commonwealth to

present “evidence of Einhorn’s physical assaults of his prior girlfriends, Rita

Resnick and Judith Sabot, as documented in his diary” in order to show a

common plan or scheme.        Einhorn, 911 A.2d at 968.      Upon review, the

diary entries specifically referenced the other two women by name and

described, in particular detail, hurting and choking them. Einhorn also wrote

in his diary, “[v]iolence always marks the end of a relationship” and “[a]ll

three attacks were motivated by a woman ending a relationship with

Einhorn.” Id. The trial court examined the similarity of the other acts and

the timeliness of the acts in relation to each other and determined the diary

entries were admissible as evidence of a common plan or scheme. Id. The

trial court issued a cautionary jury instruction that the evidence was to be

used for the limited purpose.     Id.   On appeal, we discerned no abuse of

discretion or error of law. Id. In sum, in Einhorn, the proffered writings

specifically identified victims and detailed prior crimes.

      Indeed, the cases cited by the Commonwealth all deal with actual

criminal acts. See Commonwealth Brief at 11-12, citing Commonwealth v.

Hicks, 91 A.3d 47 (Pa. 2014) (in prosecution for murder of a prostitute high

on crack cocaine, the Commonwealth was permitted to introduce common

plan witness testimony wherein Hicks admitted he “had a problem hurting

prostitutes” after supplying them with narcotics); Commonwealth v.

Boyle, 733 A.2d 633 (Pa. Super. 1999) (testimony regarding four completed


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drug sales using a confidential informant to set up identical deliveries shows

a common plan); Commonwealth v. Echevarria, 575 A.2d 620 (Pa.

Super. 1990) (confidential informant “was able to purchase cocaine from

[Echevarria] on two occasions in the days leading up to [his] arrest for a

third sale, [thus,] was directly relevant to the charge of possession with

intent to deliver cocaine.”).

      Unlike the situation here, in those cases, the prior bad act evidence

was testimony from other individuals related to actual prior criminal acts.

Furthermore, in order to admit common plan prior acts evidence, there must

be a distinct or signature plan to reveal that the perpetrator is engaging in

nearly identical criminal conduct.       Here, the alleged other acts evidence is

comprised of lyrical performances referring generally to garden-variety drug

transactions in a Philadelphia neighborhood. As such, the video references

possess a derivative, fictional quality and lack the distinctive, signature

characteristics required for their admission under the common scheme and

plan exception to Rule 404(b). Thus, we discern no error in precluding the

rap videos from trial based upon a common plan or scheme under Rule

404(b).

      In   the   third   sub-part   of    the     appellate   issue   presented,   the

Commonwealth argues that the videos, particularly those excerpts wherein

Appellant brags about having stacks of cash, are necessary for an

anticipated defense that the money found on Appellant, in the search


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incident to arrest, came from a legitimate source. Commonwealth’s Brief at

16-18.

      Preliminarily, the trial court recognized “[t]he anticipated defense has

not been articulated or adopted by the defense, but the expectation has

been described by the Commonwealth.” Trial Court Opinion, 1/5/2015, at 8.

The trial court ultimately determined

         the probative value of the video evidence to establish that
         the currency found on [Gibson’s] person is exceedingly low
         to non-existent. Conversely, we concluded that the danger
         of unfair prejudice in using his art to broadly brand [Gibson]
         as a drug dealer is great.

Id. at 9.

      As we discussed, other act evidence may be introduced to impeach

character evidence. See Ragan supra. Moreover, our Supreme Court has

held that other act “evidence may also be admissible to impeach the

credibility of a testifying defendant[.]” Commonwealth v. Reid, 811 A.2d

530, 550 (Pa. 2002). However, the Commonwealth has not provided, and

our independent review has not revealed, any legal authority to support the

proposition that prior bad acts may be introduced in anticipation of a

defense.     Hence,   we   discern   no   trial   court   error   in   denying   the

Commonwealth’s motion in limine to introduce the videos in anticipation of a




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wholly speculative defense.         Accordingly, for all of the foregoing reasons,

the Commonwealth is not entitled to relief.5

       Order affirmed. Case remanded for trial. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/30/2015




____________________________________________


5
   We have examined the amicus brief filed by ACLU-PA. Essentially, ACLU-
PA asserts that admitting the videos into evidence “would pose an undue risk
that Mr. Gibson will be punished in violation of his free-speech rights for
speaking about crime, and for participating in an art form that many people
find either offensive or incomprehensible, rather than for actual committing
a crime.” ACLU-PA Amicus Brief at 9. ACLU-PA contends that admitting
“Gibson’s art work as evidence rather than creative expression is likely” to
chill free speech.     Id. at 11.     Having already determined that the
Commonwealth is not entitled to relief, we need not reach these
constitutional concerns.

Finally, on June 15, 2015, the Commonwealth filed a petition to file a post-
submission response to the appellate briefs filed by Gibson and ACLU-PA.
The Commonwealth avers those briefs were filed late and it did not have the
opportunity to respond to either filing prior to oral argument. We grant the
Commonwealth’s request pursuant to Pa.R.A.P. 2501(a) and have
considered the post-submission filing in rendering our decision.



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