J-S38038-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                             Appellant

                      v.

DAVID HASSAN ALI HAYWOOD

                                                      No. 3644 EDA 2016


               Appeal from the Order Entered November 16, 2016
       in the Court of Common Pleas of Monroe County Criminal Division
                       at No(s):CP-45-CR-0000876-2016

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                        FILED AUGUST 21, 2017

        The Commonwealth appeals from the order entered in the Monroe

County Court of Common Pleas denying the motion for joinder and

consolidation with Commonwealth v. David Hassan Ali Haywood, 3645

EDA 2016.1      The order further provided that the Commonwealth would not

be permitted to introduce Appellee, David Hassan Ali Haywood’s, prior

convictions in its case in chief. The court deferred ruling on the remainder of

the    Commonwealth’s      Pa.R.Evid.   404(b)   motion   regarding   other   acts

evidence until the time of trial. We affirm.

*
    Former Justice specially assigned to the Superior Court.
1
  We note that the motion for joinder pursuant to Pa.R.Crim.P. 582 was filed
in Haywood, 3645 EDA 2016, which is also before this panel on appeal.
The Commonwealth has filed virtually identical briefs in each case. The trial
court filed one Pa.R.A.P. 1925(a) opinion for both cases.
J-S38038-17


      The trial court summarized the facts and procedural posture of this

case as follows:

             On April 4, 2016, while out on bail in case No. 115,
         [Appellee] was again arrested and charged with
         possessory drug offenses, as well as other crimes. This
         second set of charges stemmed from a domestic
         altercation that occurred between [Appellee] and his
         girlfriend, Shanice Armstrong-Woods.

            Specifically, at approximately 4:30 p.m., officers from
         the Pocono Township Police Department were dispatched
         to the residence in response to a 911 call. A thirteen-year
         old boy reported that his mother and her boyfriend,
         [Appellee], were involved in a verbal argument which
         eventually turned physical. The boy also told emergency
         dispatchers that [Appellee] possessed a knife.

            Upon arrival, officers observed [Appellee] exiting the
         residence.    They made contact with [Appellee], and
         noticed that he was bleeding from his head.         Upon
         speaking with [Appellee], the affiant immediately noticed
         an intense odor of marijuana emanating from his person.
         [Appellee] was then patted down, handcuffed, and advised
         that he was being detained until the scene could be
         secured. When asked what had happened, [Appellee] told
         police he had fallen and hit his head. [Appellee] added
         that he was trying to get away from his girlfriend and
         denied that a physical altercation had occurred.

            Police then entered the residence in order to ensure the
         safety of the occupants. Upon entry, police detected a
         strong odor of marijuana.       After ensuring everyone’s
         safety, police questioned [Appellee’s] girlfriend about the
         smell. She informed police that [Appellee] had smoked
         marijuana inside the home earlier in the day. She also
         provided details regarding the nature of the incident. She
         related that the couple had had a verbal argument over
         finances. She said that as [Appellee] attempted to leave,
         she had taken his car keys. As the argument escalated,
         her son briefly picked up a kitchen knife and then put it
         down to call 911. She said that [Appellee] then picked up
         the knife and demanded his keys.


                                    -2-
J-S38038-17



              An ambulance arrived to treat [Appellee’s] head injury.
           Prior to allowing [Appellee] to enter the ambulance, police
           conducted a second pat down of [Appellee’s] person. This
           time police discovered a small bag of marijuana in
           [Appellee’s] pocket. Based on this finding and the odor in
           the residence, police applied for and received a search
           warrant for the residence as well as vehicles located on the
           property. The search yielded small amounts of marijuana
           and cocaine, drug paraphernalia, and approximately 750
           bags of suspected heroin.           The substances were
           subsequently tested and confirmed.

              As a result, [Appellee] was charged with PWID-Heroin,
           Possession of Heroin, Possession of Cocaine,[2] Possession
           of a Small Amount of Marijuana,[3] two counts of
           Possession of Drug Paraphernalia,[4] Terroristic Threats,[5]
           Simple Assault,[6] and Harassment.[7]

                                   *    *    *

              In June of 2016, several relevant submissions were filed
           or served. On June 21, 2016, [Appellee] filed in case No.
           876 an omnibus motion seeking suppression of evidence.
           At or around the same time, the Commonwealth served on
           [Appellee] notices pursuant to Pa.R.E. 404(b) of its intent
           to introduce at trial “other acts” evidence consisting of
           “prior bad acts” perpetuated by [Appellant]. Specifically,
           the Commonwealth provided notice of its intent to
           introduce in each of these cases: (a) [Appellee’s] acts and
           conduct and the crimes charged in the other case (“Cross-

2
    35 P.S. § 780-113(a)(30).
3
    35 P.S. § 780-113(a)(31).
4
    35 P.S. § 780-113(a)(32).
5
    18 Pa.C.S. § 2706(a)(1).
6
    18 Pa.C.S. § 2701(a)(3).
7
    18 Pa.C.S. § 2709(a)(4).



                                       -3-
J-S38038-17


        Case Evidence”); and (b) [Appellee’s] seven prior
        convictions in New Jersey for possession or possession
        with the intent to deliver drugs (“Prior PWID Evidence”).
        Thereafter, on June 27, 2016, the Commonwealth filed a
        motion to join these cases for trial.

R.R. at 22a-25a (footnote omitted).8

     On October 27, 2016, a hearing was held on Appellee’s “objection to

the Commonwealth’s 404(b) notice in both cases.” Id. at 217a.

        [The Commonwealth:] And I would point out first, if we
        could look at it from a 404(b) standpoint, the first offense
        involved─excuse me. The first case involved a traffic stop
        where [Appellee] was then found to be in possession of
        210 bags of heroin as well as some marijuana, and he was
        driving under the influence of marijuana. At that point,
        Your Honor, he had asserted that it was─the 200 bags
        were personal use. Then we─that was in November of
        2015.

           Then in early April of 2016, the facts giving rise to the
        case at 876 Criminal 2016, Pocono Township officers
        responded to [Appellee’s] address for a domestic related
        call. At that time, [Appellee] was exiting the residence,
        was believed to be impaired.       There was an odor of
        marijuana.    When he was searched as part of his
        detention, when the officers were responding to the
        domestic, he was found to be in possession of a small
        amount of marijuana. There was then a search warrant
        executed upon the residence, and there was 700 bags of
        heroin located inside of the residence. And I would also
        note that both in the search of the vehicle as well as the
        search of the house a large sum of money was also
        recovered from each.

           So if the cases were separated, Your Honor, the
        Commonwealth would be seeking to use evidence of the
        other offense as 404(b) notice in order to establish, most

8
  For the parties’ convenience, we refer to the reproduced record where
applicable.



                                   -4-
J-S38038-17


          importantly, intent.   These are possession with intent to
          deliver offenses.

             [Appellee], to my understanding, he’s always asserted
          that these packets of heroin have been for personal use
          and not related to any sort of transaction in illegal
          narcotics.

                                     *        *       *

            And so we would seek to use the evidence of one as
          404(b) evidence in the other.

                                     *        *       *

             With regard to the other [7 PWID9] offenses, Your
          Honor, the Commonwealth is not seeking to introduce
          those, obviously, as a propensity to commit crimes; but it
          goes first in rebuttal to [Appellee’s] assertion that this is
          personal use and also to his intent, which is an element of
          the offense of PWID, that he, in fact, was possessing this
          heroin with intent to deliver it.

                                 *       *        *

          [Defense counsel]: Your Honor, the seven prior PWIDs,[10]
          you have to─we have to view this in a practical manner.
          The jury is going to hear that, and they are going to say,
          Well, there is absolutely no way he doesn’t have a
          propensity to deal in heroin. That is the way it’s going to
          be done. So it comes with a very high risk of unfair
          prejudice. And I don’t think that we can simply presume
          in such circumstances that a [c]ourt instruction is going to
          ironclad steel their minds about making that inference.

Id. at 223a-25a, 227a.


9
    Id. at 226a-27a.
10
  Appellee had seven prior convictions in New Jersey for PWID. See id. at
57a-58a.




                                             -5-
J-S38038-17


        The court entered the following order:

              AND NOW, this 15th day of November, 2016, it
           appearing that the Order dated November 1, 2016,
           inadvertently omitted a portion of the Court’s ruling and
           contained an incorrect docket number in the caption, the
           Order dated November 1, 2016 is VACATED and replaced
           with the following:


             After hearing, it is ORDERED that the Commonwealth’s
           motion for joinder and consolidation of these cases is
           DENIED.

              The Commonwealth will not be permitted to introduce
           [Appellee’s] prior convictions in its case in chief.

               The remainder of the Commonwealth’s motion
           regarding other acts evidence will be decided at time of
           trial.11

Id. at 30a. This timely appeal followed.      The Commonwealth filed a court-

ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal, and

the trial court filed a responsive opinion.

11
     We note that

           [S]ection 5505 of the Judicial Code provides that “a court .
           . . may modify or rescind any order within 30 days after
           its entry, notwithstanding the prior termination of any
           term of court, if no appeal from such order has been taken
           or allowed.” 42 Pa.C.S.A. § 5505. However, this thirty
           day limit only applies to the modification of final orders;
           interlocutory orders can be modified beyond the thirty-day
           time frame.

Commonwealth v. James, 12 A.3d 388, 391 (Pa. Super. 2010), rev'd on
other grounds, 69 A.3d 180 (Pa. 2013) (some citations omitted). In the
instant case, the trial court modified the interlocutory order within thirty
days.




                                      -6-
J-S38038-17


        The Commonwealth raises the following issues for our review:

               Whether the lower court erred in failing to rule on the
           Commonwealth’s evidence of other acts evidence identified
           as the Cross-Case Evidence as provided in the
           Commonwealth’s Pa.R.Evid. 404(b) Notice and allowing for
           modification of the admissibility of such evidence during
           trial by the trial judge, contrary to Pa.R.Crim.P. 580?

              Whether the lower court abused its discretion in
           denying the Commonwealth’s Motion to Join pursuant to
           Pa.R.Crim.P.    582(A)     the   Instant    Matter   with
           Commonwealth v. David Haywood, an issue properly
           before this Court, based upon the erroneous denial of the
           admission of the Pa.R.Evid. 404(b) evidence?

               Whether the lower court abused its discretion in
           denying the admission at trial of all the Commonwealth’s
           proffered Pa.R.Evid. 404(b) evidence, including the Prior
           PWI[D] Evidence and Cross-Case Evidence as provided in
           the Commonwealth’s 404(b) notice?

Appellant’s Brief at 5.12

        As a prefatory matter, we consider whether the trial court’s deferred

ruling on the other acts evidence identified as the “Cross-Case Evidence” is

appealable.     In the case sub judice, the trial court found the issue was

unappealable pursuant to Pa.R.A.P. 311(d). See R.R. at 32a. We agree.

         Rule 311 provides, in pertinent part, as follows:

           (d) Commonwealth appeals in criminal cases.─In a
           criminal case, under the circumstances provided by law,
           the Commonwealth may take an appeal as of right from an
           order that does not end the entire case where the
           Commonwealth certifies in the notice of appeal that the
           order will terminate or substantially handicap the
           prosecution.

12
     For ease of disposition, we have reordered the Commonwealth’s issues.



                                       -7-
J-S38038-17


Pa.R.A.P. 311(d).      Pursuant to Pa.R.A.P. 904, “[w]hen the Commonwealth

takes an appeal pursuant to Pa.R.A.P. 311(d), the notice of appeal shall

include   a   certification   by   counsel    that   the   order   will   terminate   or

substantially handicap the prosecution.” Pa.R.A.P. 904(e).

     When the Commonwealth appealed the November 3rd order they filed

a statement in compliance with Pa.R.A.P. 311(d) stating as follows:

          The undersigned hereby certifies that the Court Order
          dated November 1, 2016, denying the Commonwealth’s
          Motion for Joinder and denying the Commonwealth’s
          404(b) evidence as it related to [Appellee’s] prior
          convictions for possession with intent to deliver, will
          substantially handicap the prosecution of [Appellee] in the
          above-captioned case.

Notice of Appeal, 11/18/16 (emphasis added).

          Under [Section 311(d)], the Commonwealth may appeal if
          it certifies the interlocutory order will terminate or
          substantially handicap the prosecution . . . .         Such
          certification is required as a means of preventing frivolous
          appeals and appeals intended solely for delay. Failure to
          include the certification renders the questioned order
          unappealable.

Commonwealth v. Brister, 16 A.3d 530, 533–34 (Pa. Super. 2011)

(citations and quotation marks omitted).

     In the case sub judice, the Commonwealth’s Rule 311(d) certification

did not refer to the deferred ruling on the Cross-Case evidence. Therefore,

the issue is unappealable. See Brister, 16 A.3d at 533-34.

     Next, the Commonwealth contends the trial court abused its discretion

in denying the motion to join.               The motion for joinder pursuant to



                                        -8-
J-S38038-17


Pa.R.Crim.P. 582 was not filed in the instant case.     Furthermore, as the

trial court opined, an order denying a motion for joinder is unappealable

under Rule 311(d). See R.R. at 31a. In Commonwealth v. Woodard, 136

A.3d 1003 (Pa. Super. 2016), appeal denied, 158 A.3d 1242 (Pa. 2016), this

Court opined:


        an order denying joinder, like an order granting severance,
        is interlocutory and thus not appealable.         Here, the
        Commonwealth is free to seek conviction on all counts,
        against each defendant, in . . . separate trials. Therefore,
        denial of the motion for joinder does not terminate or
        substantially handicap the prosecution and is not
        appealable under Rule 311(d). To expand Rule 311(d) to
        encompass such interlocutory review would be to disturb
        the orderly process of litigation. Strict application of the
        Rule assures that trials will go forward as scheduled.

Id. at 1007 (citations and quotation marks omitted).

     Lastly, the Commonwealth contends the trial court abused its

discretion in denying the admission of its proffered Rule 404(b) evidence.

See Commonwealth’s Notice of Prior Bad Acts, R.R. at 59a-61a.          The

Commonwealth argues that “all of [its] proffered Rule 404(b) evidence is

admissible as it is offered to support intent, common scheme, and/or

knowledge of drug trafficking and the lower court’s decision to deny the

admission of the prior PWI[D] evidence and cross-case evidence is an abuse

of discretion.”13 Commonwealth’s Brief at 16. The Commonwealth contends


13
  We note that the Commonwealth’s Rule 311(d) statement does not raise
the issue of the cross-case evidence. See Brister, 16 A.3d at 533–34.



                                   -9-
J-S38038-17


“the evidence proffered by [it] in this case has a proper purpose as

permitted by Rule 404(b) and as the Commonwealth has demonstrated a

need for this evidence and shown that the probative value of the evidence

outweighs any prejudicial effect (including use of a cautionary instruction),

the evidence should be permitted at trial.” Id. at 23-24.

     Our review is governed by the following principles:

            Evidence is admissible if it is relevant—that is, if it
        tends to establish a material fact, makes a fact at issue
        more or less probable, or supports a reasonable inference
        supporting a material fact—and its probative value
        outweighs the likelihood of unfair prejudice. Admissibility
        of evidence is within the sound discretion of the trial court
        and we will not disturb an evidentiary ruling absent an
        abuse of that discretion. Moreover, evidence of prior bad
        acts, while generally not admissible to prove bad character
        or criminal propensity, is admissible when proffered for
        some other relevant purpose so long as the probative
        value outweighs the prejudicial effect. Commonwealth v.
        Morris, [ ] 425 A.2d 715, 720 ([Pa.] 1981) (law does not
        allow use of evidence which tends solely to prove accused
        has criminal disposition). Such evidence may be admitted
        to show motive, identity, lack of accident or common plan
        or scheme. Commonwealth v. Briggs, [ ] 12 A.3d 291,
        337 ([Pa.] 2011) (Rule 404(b)(2) permits other acts
        evidence to prove motive, lack of accident, common plan
        or scheme and identity).       In order for other crimes
        evidence to be admissible, its probative value must
        outweigh its potential for unfair prejudice against the
        defendant, Pa.R.E. 404 (b)(2), and a comparison of the
        crimes proffered must show a logical connection between
        them and the crime currently charged.

Commonwealth v. Hicks, 156 A.3d 1114, 1125 (Pa. 2017) (some citations

and quotation marks omitted).




                                   - 10 -
J-S38038-17


      After careful consideration of the record, the parties’ briefs, and the

well-reasoned decision of the Honorable Jonathan Mark, we affirm on the

basis of the trial court’s decision.     See Trial Ct. Op., 1/24/17, at 17-27

(holding the prejudicial effect of admitting the seven prior PWID convictions

during the Commonwealth’s case in chief would outweigh its probative

value). Accordingly, having discerned no error of law or abuse of discretion,

we affirm the order. See Hicks, 156 A.3d at 1125.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/21/2017




                                       - 11 -
                                                                  Circulated 07/28/2017 04:56 PM




               COURT OF COMMON PLEAS OF MONROE COUNTY
                     FORTY-THIRD JUDICIAL DISTRICT
                   COMMONWEALTH OF PENNSYLVANIA


 COMMONWEALTH OF PENNSYLVANIA

               v.                                       NO.    115 CR 2016
                                                               876 CR 2016


 DAVID HAYWOOD,
                                                               3645 EDA 2016
               Defendant


          OPINION IN SUPPORT OF ORDERS PURSUANT TO Pa. R.A.P. 1925(a)

       The Commonwealth has filed interlocutory appeals, replete with certification

 statements under Pa.R.A.P. 311(d), from our orders that ruled on the pretrial filings of

both parties. We directed the Commonwealth to file statements of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b). The Commonwealth complied. We now file

this opinion in accordance with Pa.R.A.P. 1925(a).

                                       BACKGROUND

       The relevant facts and procedural history of and the interplay between these

cases may be summarized as follows:

Case No. 115

      On November 27, 2015, Trooper Petrucci of the Pennsylvania State Police

initiated a traffic stop of Defendant's vehicle which, while making a turn, almost

collided with his marked patrol car. During his interaction with Defendant, Trooper

Petrucci noticed several indicia of intoxication. He also observed tiny pieces of

suspected marijuana on Defendant's lap.



                                           1
        Based on these observations, Trooper Petrucci asked Defendant to step out of

 the vehicle. Defendant complied and consented to a search of his person. The search

 uncovered a small baggie of suspected marijuana and $995 in cash. Defendant was

 placed under arrest and his vehicle was searched incident to arrest. During the search

 of the vehicle, two bundles of heroin, consisting of   a   total of 100 small baggies, were

 discovered concealed inside magazines.

       As   a   result, in case No. 115, Defendant was arrested and charged with

 Possession With the Intent to Deliver (PWID) Heroin, Possession of Heroin, several

 counts of Driving Under the Influence (DUI), and summary traffic offenses.

       Defendant was taken for processing. The marijuana and heroin were field

tested and confirmed. Defendant consented to a legal blood draw. During                   a

subsequent interview, Defendant admitted that he had smoked marijuana and told

police that he snorts eight to ten bags of heroin per day.

       Defendant filed an omnibus motion seeking suppression of evidence. On May

19, 2016, the Honorable Stephen M. Higgins issued an Opinion and Order denying the

motion. We incorporate Judge Higgins' opinion, which provides additional background

information, into this Opinion by reference.

Case No. 876

      On April 4, 2016, while out on bail in case No. 115, Defendant was again

arrested and charged with possessory drug offenses, as well as other crimes. This

second set of charges stemmed from a domestic altercation that occurred between

Defendant and his girlfriend, Shanice Armstrong -Woods.




                                               2
        Specifically, at approximately 4:30 p.m., officers from the Pocono Township

 Police Department were dispatched to the residence in response to a 911 call. A

 thirteen -year old boy reported that his mother and her boyfriend, Defendant, were

 involved in   a   verbal argument which eventually turned physical. The boy also told

 emergency dispatchers that Defendant possessed a knife.

       Upon arrival, officers observed Defendant exiting the residence. They made

contact with Defendant, and noticed that he was bleeding from his head. Upon

speaking with Defendant, the affiant immediately noticed an intense odor of marijuana

emanating from his person. Defendant was then patted down, handcuffed, and

advised that he was being detained until the scene could be secured. When asked

what had happened, Defendant told police he had fallen and hit his head. Defendant

added that he was trying to get away from his girlfriend and denied that a physical

altercation had occurred.

       Police then entered the residence in order to ensure the safety of the

occupants. Upon entry, police detected     a   strong odor of marijuana. After ensuring

everyone's safety, police questioned Defendant's girlfriend about the smell. She

informed police that Defendant had smoked marijuana inside the home earlier in the

day. She also provided details regarding the nature of the incident. She related that

the couple had had a verbal argument over finances. She said that as Defendant

attempted to leave, she had taken his car keys. As the argument escalated, her son

briefly picked up a kitchen knife and then put it down to call 911. She said that

Defendant then picked up the knife and demanded his keys.




                                           3
        An ambulance arrived to treat Defendant's head injury. Prior to allowing

  Defendant to enter the ambulance, police conducted a second pat down of

 Defendant's person. This time police discovered a small bag of marijuana in

 Defendant's pocket. Based on this finding and the odor in the residence, police applied

 for and received   a   search warrant for the residence as well as vehicles located on the

 property. The search yielded         small amounts of marijuana and cocaine,           drug
 paraphernalia, and approximately 750 bags of suspected heroin. The substances were

 subsequently tested and confirmed.

       As a result, in case No. 876, Defendant was charged with PWID             -   Heroin,
 Possession of Heroin, Possession of Cocaine, Possession of a Small Amount of

 Marijuana, two counts of Possession of Drug Paraphernalia, Terroristic Threats,

Simple Assault, and Harassment.

The Two Cases Together

       In June of 2016, several relevant submissions were filed or served. On June 21,

2016, Defendant filed in case No. 876 an omnibus motion seeking suppression of

evidence. At or around the same time, the Commonwealth served on Defendant

notices pursuant to Pa.R.E. 404(b) of its intent to introduce at trial "other acts"

evidence consisting of "prior bad acts" perpetrated by Defendant. Specifically, the

Commonwealth provided notice of its intent to introduce in each of these cases: (a)

Defendant's acts and conduct and the crimes charged in the other case ("Cross-Case

Evidence"); and (b) Defendant's seven prior convictions in New Jersey for possession

or possession with the intent to deliver drugs ("Prior PWID Evidence"). Thereafter, on




                                             4
 June 27, 2016, the Commonwealth filed a motion to join these cases for tria1.1 As the

 basis for its motion, the Commonwealth cited to the proffered 404(b) evidence,

claiming that "the evidence of each offense would be admissible at trial for the other,

the jury could easily separate the evidence and avoid confusion, and [] Defendant

would suffer no undue prejudice." (Commonwealth's Motion for Joinder, filed June 27,

2016, ¶ 6).

             In   response, we scheduled a hearing for August 11, 2016. During the hearing,

we received evidence and heard argument on Defendant's suppression motion. At

Defendant's request, and with the tacit concurrence of the Commonwealth, we agreed

to hold off deciding the joinder and Rule 404(b) evidence issues until after the

suppression motion was decided.

             While the joinder and Rule 404(b) evidence matters were not decided at the

hearing, they were nonetheless discussed. Among other things, on the joinder issue,

the Commonwealth reaffirmed that these cases arose from two separate incidents,

that the incidents were investigated by two different police agencies, and that the

joinder motion is for the most part predicated on the Commonwealth's assertion that

the evidence from each case is admissible in the other case. (N.T., 8/11/2016, p. 16).

The Commonwealth also clarified that it was not at the time asking the Court to

affirmatively rule on the 404(b) issues. Instead, in response to the Court's questions,

the assistant district attorney indicated that, "I didn't file a motion in limine as it relates

to   -   I   believe that could be taken up as we approach trial or if they're going to file a

motion in limine to exclude that evidence or challenge that 404(b) notice evidence. I'm



 It appears that the joinder motion was filed only in and under the caption   of case No.   115.

                                                         5
  not seeking to have the court today rule on the 404(b), just the joinder Your
                                                                                Honor."
  (N.T., 8/11/2016, p. 5).

           In   addition, we provided some initial thoughts on the Prior PWID Evidence so

  that the parties could focus later arguments. Among other things, based on the 404(b)

  notices and the statements of the parties, we recognized that a portion of the

 Commonwealth's notices consisted of

                   [seven] cases from Passaic County, New Jersey that the
                   Commonwealth's - about which the Commonwealth is
                   seeking to introduce evidence and it lists even evidence of
                   a conviction. So when you're arguing -- someone is going
                   to have to tell me how the Commonwealth gets to put in a
                   prior conviction for PWID in a subsequent PWID case at
                   least in its case -in -chief because that would be a new one
                   on me.

 (N.T., 8/11/2016, pp. 6-7).

          At the conclusion of the hearing, we issued an order setting a briefing schedule

on the suppression issues and establishing an orderly procedure by which to address

the 404(b) evidence issues.

          On August 26, 2016, Defendant filed objections to the joinder motion and the

introduction of the proffered 404(b) evidence. In accordance with the procedure and

time frame set forth in our Order, we scheduled a hearing and directed the filing of

briefs.

          On August 29, 2016, we issued an order denying Defendant's suppression

motion in case No. 876. The case was placed on the November 2016 trial term.

          On October 27, 2016, a hearing was convened to address the joinder and

404(b) evidence matters. The parties submitted briefs and orally outlined their

respective positions.


                                              6
       At the hearing, the Commonwealth stated

                With respect to the other offenses, Your Honor, the
                Commonwealth is not seeking to introduce those,
                obviously, as propensity to commit crimes; but it first goes
                in rebuttal to [Defendant's] assertion that this is personal
                use and also to his intent, which is an element to the
                offense of PWID, that he, in fact, was possessing heroin
                with intent to deliver it.

(N.T. 8/27/2016, p. 10). In its brief, the Commonwealth further alleged that the

proffered 404(b) is admissible to show intent, common scheme, knowledge of drug

trafficking, and to refute Defendant's anticipated claim of personal use. As previously

indicated, the proffered 404(b) evidence is the sole basis for the Commonwealth's

motion to join the cases.

       In   response, Defendant's attorney highlighted the importance of

                receiving] a fair trial that is not painted by unfair prejudice.
               The Court has noted that when you introduce prior bad acts
               you come along with a high probability that the jury is going
               to infer propensity based upon those prior bad acts....Your
               Honor, the seven prior PWIDs, you have to         -  we have to
               view this in a practical manner. The jury is going to hear
               that, and they are going to say, Well there is obviously no
               way he doesn't have a propensity to deal in heroin. That's
               the way it's going to be done. So it comes with a very high
               risk of unfair prejudice.

(N.T., 8/27/2016, pp.        11-12). Counsel for Defendant went on to question the

Commonwealth's need to introduce the prior convictions, point out the substantial

other evidence available to the Commonwealth, and assert that a cautionary or limiting

instruction would not be enough to remove the taint.

       In    his brief, Defendant reiterated much of the above argument and also

challenged the Commonwealth's assertion that the Cross -Case Evidence and Prior

PWID Evidence fit into the asserted 404(b) exceptions. Defendant highlighted the fact


                                              7
  that the Commonwealth had not specified how it intended to introduce either
                                                                              form of
  evidence, specifically whether it sought to admit mere records of conviction or the

  testimony of investigators involved   in   the cases. He further claimed that the unfair

  prejudice associated with the proffered 404(b) evidence would outweigh its probative

 value. Defendant concluded that introduction of the Cross -Case Evidence and the

 Prior PWID Evidence would result in a high probability that the jury would convict

 Defendant based upon propensity, regardless of the other evidence presented at trial.

           We took the matter under advisement, but provided a framework for analysis

 and some food for thought for Defendant and his attorney as they considered the
                                                                                 plea
 offer stated on the record at the beginning of the hearing. Among other things, we

 pointed out that there might well be    a   difference between what the Commonwealth

 could properly admit in the first instance and what it could legitimately present to rebut

 Defendant's arguments, cross examination, or evidence at trial. (N.T., 10/27/2016, pp.

 16-17).

       On November 1, 2106, the day of jury selection, the undersigned was assigned

to call the final trial list consisting of approximately 99 cases, take pleas, and send

cases to jury selection. During the proceeding, case No. 876 and a third case involving

Defendant     -a separate DUI case docketed     to No. 1255 Criminal 2016   - were called.
Case No. 115 was not on the list, but all were aware that the joinder motion was

pending.

       At side bar, the Commonwealth asked us to grant its joinder motion, send the

consolidated cases to jury selection, and continue the separate DUI case to the next

term. Given the hectic nature of the list call, we initially issued, from side bar, a very
 quick and short order denying the Commonwealth's joinder motion, and then indicated

 that the 404(b) evidence issues would be decided at time of jury selection or trial.

 Accordingly, we announced that case No. 876 would be sent for jury selection and that

 case No. 1255 would be continued to the next term.

          Again at side bar, the Commonwealth pushed for a resolution then and there. At

 first, we indicated that the 404(b) issues would be addressed on the record at time of

 jury selection. Upon further urging of the Commonwealth, we amended our order to

 hold that the Commonwealth would not in its case in chief be permitted to introduce

 the Prior PWID Evidence. We also indicated that the remaining 404(b) issue          whether
 introduction of the Cross -Case Evidence would be permitted          - would   be decided at

trial, although for some reason that aspect of our ruling did not get reflected on the

 record. We advised the parties that, like all pretrial evidentiary rulings based on

proffers and arguments of counsel, the ruling was subject to change based on the

evidence presented during trial. (N.T., 11/1/2016, pp. 3-4; Order dated November           1,

2016).

         In   accordance with local practice, the attorneys then went to another courtroom

where jury panels were being assigned. At that point, the assistant district attorney

informed the judge who was assigning jury panels that the Commonwealth would be

appealing the undersigned's ruling. As    a   result, a jury was not picked.

         Our November 1, 2016 ruling was reduced to a written order that was entered

on November 3, 2106. Later, while reviewing these cases to determine whether the

Commonwealth had filed its appeal, we realized that the order was incomplete.




                                               9
Accordingly, we vacated the November             1st   order and issued a revised order that

reflected our full ruling. Specifically, the order provided:

                      AND NOW, this 15th Day of November, 2016, it
               appearing that the Order dated November 1, 2016,
               inadvertently omitted a portion of the Court's ruling and
               contained an incorrect docket number in the caption, the
               Order dated November 1, 2016 is VACATED and replaced
               with the following:

                      After hearing,  it is   ORDERED that the
               Commonwealth's motion for joinder and consolidation of
               these cases is DENIED.

                      The Commonwealth will not be permitted to
               introduce Defendant's prior convictions in its case in chief.

                      The remainder of the Commonwealth's motion
               regarding other acts evidence will be decided at time of
               trial.

                      Like all pre-trial rulings based on offers of proof that
               are made before introduction of evidence and arguments of
               counsel the ruling is subject to modification by the trial
               judge as events develop during the trial.

(Order dated November 15 and entered November 16, 2016).

       The     Commonwealth      then   filed     these    appeals.    In    each    appeal,   the

Commonwealth certified, pursuant to Pa. R.A.P. 311(d), that two aspects of our rulings

would "substantially handicap" its case. Specifically, the assistant district attorney

certified   that "the   Court   Order dated          November   1,    2016   [sic]   denying   the

Commonwealth's Motion for Joinder and denying the Commonwealth's 404(b)

evidence as it related to the Defendant's prior convictions for possession with intent to

deliver, will substantially handicap the prosecution of the Defendant in the above -

captioned case." (Commonwealth's Notices of Appeal, filed November 18, 2016).




                                                10
                                           DISCUSSION

           In each   of these appeals, the Commonwealth raises or attempts to raise three

 claims of error. In assignments of error one and three, the Commonwealth challenges

 our determination that it would not be permitted in its case -in -chief to introduce

 evidence of Defendant's New Jersey PWID convictions and our denial of its joinder

 motion,      both   of which are      referenced   in   the Commonwealth's   Rule 311(d)

 certifications. (See Commonwealth's Notices of Appeal, filed November 18, 2016, and

 Commonwealth's Rule 1925(b) Statements, filed December 7, 2016). In its second

assignment of error, the Commonwealth attempts to challenge our "failure to rule" on

its request to introduce evidence of each of these cases in the trial of the other, an

issue that is not included in the Commonwealth's Rule 311(d) certifications. For the

reasons that follow, we believe that the Commonwealth's appeals are at least partially

defective and that its assignments of error, which we will address in reverse order, are

substantively without merit.

         1.      The Order Denying the Commonwealth's Motion for Joinder Is Not
                 Appealable Under Rule 311(d) Because the Order is an Interlocutory
                 Order that Neither Terminates nor Substantially Handicaps the
                 Prosecution

         In its third assignment    of error, the Commonwealth claims that we abused our

discretion in denying its request to join these two cases for trial. However, under well -

settled law, the denial of a motion to join is not appealable under Pa.R.A.P. 311(d).

Commonwealth         v.   Woodard, 136 A.3d 1003 (Pa. Super. 2016), app. den.,       A.3d

   ,   2016 WL 5947280 (Pa., filed October 13, 2016) (Table). This is because

                an order denying joinder, like an order granting severance,
                is interlocutory and thus not appealable. Here, the
                Commonwealth is free to seek conviction on all counts,


                                              11
                  against each defendant, in ... separate trials. Therefore,
                  denial of the motion for joinder does not terminate or
                  substantially handicap the prosecution and is not
                  appealable under Rule 311(d). To expand Rule 311(d) to
                  encompass such interlocutory review would be to disturb
                  the orderly process of litigation. Strict application of the
                  Rule assures that trials will go forward as scheduled.

 Woodward, 136 A.3d at 1007 (internal quotation marks and citation omitted) (citing

 Commonwealth          v.   Smith, 544 A.2ds 943 (Pa. 1988) (order granting severance of two

criminal informations interlocutory and not appealable because the Commonwealth is

free to seek conviction on both counts in separate trials) and Commonwealth               v.


Saunders, 394 A.2d 522 (Pa. 1978) (same)).

        Under this clear authority, our denial of the Commonwealth's joinder motion is

unappealable. Moreover, as the cited cases teach, the denial neither hampers nor

prevents the Commonwealth from trying Defendant. The Commonwealth retains the

ability to seek conviction on all counts in separate trials.

        In the     alternative, our decision to deny joinder was a proper exercise of

discretion. The acts giving rise to these two cases happened months apart. The crimes

were investigated by two different police agencies and involve different witnesses.

While defendant is accused of possessory drug offenses in both cases, he is

additionally charged in case No. 876 with Terroristic Threats, Simple Assault, and

Harassment in a domestic violence scenario in which               a   child was present and

Defendant is alleged to have brandished a knife. Introduction of evidence regarding

the domestic violence, the presence of a child, and the knife in case No. 115, in which

only drug trafficking and possession is charged, would be at once irrelevant and overly

prejudicial.   It is   important that the jury have the opportunity to hear and weigh the



                                                 12
 evidence in case No. 115 without being exposed to the inflammatory domestic

 violence overlay in case No. 876. Additionally, conspiracy is not charged. Finally, the

 Commonwealth's sole basis for joinder is that both categories of 404(b) evidence

 would be admissible in both cases. However, given the considerations just mentioned,

 the   Cross -Case      Evidence    would     be        unduly   prejudicial    if introduced   in   the

 Commonwealth's case in chief. Similarly, for the reasons discussed below, the Prior

 PWID Evidence is not admissible in the Commonwealth's case in chief in either trial.

Thus, the asserted basis for joinder is meritless. Under these facts and circumstances,

 our decision to deny joinder did not constitute an abuse of discretion.

         2.       The Commonwealth's Challenge to our Deferred Ruling on the
                  Cross -Case Evidence is Both Defective and Baseless

         In its   second assignment of error, the Commonwealth maintains that we erred

in "failing to rule" on the Cross -Case Evidence. However, the Commonwealth has

failed to properly raise or preserve this claim for review. In the alternative, the claim is

baseless.

        Pa.R.A.P. 311(d) permits the Commonwealth, under "circumstances provided

by law," to take an immediate "appeal as of right from an order that does not end the

entire case where the Commonwealth certifies in the notice of appeal that the order

will terminate or substantially handicap the prosecution." Pa.R.A.P. 311(d). "When the

Commonwealth takes an appeal pursuant to Rule 311(d), the notice of appeal shall

include a certification by counsel that the order will terminate or substantially handicap

the    prosecution."    Pa.R.A.P.    904(e)    (emphasis          added).      The   Commonwealth's

"certification is required as a means of preventing frivolous appeals and appeals

intended solely for delay." Commonwealth            v.   Brister, 16 A.3d 530, 533-34 (Pa. Super.


                                                   13
2011) (citations omitted). Thus, the Commonwealth's failure to include the certification

is a     fatal defect which renders the order unappealable. Brister; Commonwealth                  v.


Knoeppel, 788 A.2d 404, 407 (Pa. Super. 2001). See also Commonwealth                               v.


Malinowski, 671 A.2d 674 (Pa. 1996); Commonwealth                      v.   Dugger, 486 A.2d 382 (Pa.

1985).

          In its Rule 311(d)   certifications   in   these cases, the Commonwealth did not even

tacitly reference our decision to defer ruling on the Cross -Case Evidence issue. On the

contrary, the Commonwealth was very specific that it was certifying only our ruling on

the Prior PWID Evidence. In this regard, the certifications stated that, "the Court Order

... denying the Commonwealth's 404(b) evidence as                     it related to the Defendant's
prior convictions for possession with intent to deliver, will substantially handicap

the prosecution of the Defendant in the above -captioned case." (Commonwealth's

Notices of Appeal, filed November 18, 2016) (emphasis added). Under the authority

cited above, the Commonwealth's failure to certify the Cross -Case Evidence issue is

fatal.

           Additionally, and along similar lines, the Commonwealth has waived its second

assignment of error. Although not completely clear, it appears the Commonwealth is

attempting to assert that our decision to defer ruling and not decide the Cross -Case

Evidence issue before trial constituted error. The basis for this assertion appears to be

Pa. R. Crim. P. 580, which provides that, "[u]nless otherwise provided in these rules,

all pretrial motions shall be determined before trial. Trial shall be postponed by the

court     for   the determination     of pretrial          motions,   if necessary."   However, the

Commonwealth did not at the time we deferred our decision object to our "failure" to



                                                      14
issue a definitive ruling prior to trial. Accordingly, the Commonwealth has waived the

issue on appeal. Pa. R.A.P. 302(b); see also Commonwealth              v.   Little, 903 A.2d 1269,

1272 (Pa. Super. 2006); Commonwealth v. Brotherson, 888 A.2d 901, 905 (Pa. Super.

2005); Commonwealth       v.   Berry, 877 A.2d 479, 485 (Pa. Super. 2005); Commonwealth

v.   Fairley, 444 A.2d 748, 752 (Pa. Super. 1982).

         Alternatively, the Commonwealth's challenge to our decision to defer ruling on

the Cross -Case Evidence is substantively devoid of merit. The filing that prompted the

ruling was Defendant's pretrial objection to the Commonwealth's notice of intent to

introduce the Cross -Case Evidence      -a filing that is in   the nature of a motion in limine.

Although such objections and motions are "generally made before trial, the trial court

may elect to rule upon the application at a later time." Commonwealth              v.   Metier, 634

A.2d 228, 232 n. 3 (Pa. Super. 1993). In this case, we made the discretionary election

to defer ruling until time of trial so that, before inflammatory evidence would be

presented to the jury, we would have the opportunity to make our evidentiary ruling in

full context based not on overgeneralized pretrial proffers, but, rather, on the content of

the opening statements, the attorneys' questioning of witnesses, and the totality of

other evidence presented up until the specific point at which the Cross -Case Evidence

is offered.

        Deferral should not have been    a   surprise since, during the omnibus hearing, the

Commonwealth specifically informed the Court that it was not at the time seeking an

affirmative, advance ruling that its proffered Cross -Case Evidence was admissible.

Instead, the Commonwealth indicated that the issue "could be taken up as we

approach trial or if they're [Defendant] going to file a motion in limine to exclude that



                                               15
evidence or challenge that 404(b) notice." (N.T., 8/11/2016, p. 5). Similarly, at several

points we advised that admissibility of either category of 404(b) evidence might

depend upon, or that any pretrial ruling might be subject to change based on, the

actual evidence, arguments, and questions at trial.

        In an   attempt to bolster or add to its claim, the Commonwealth appears to take

a   stab at challenging the portions of our orders which advised that, "[Ijike all pre-trial

rulings based on offers of proof that are made before introduction of evidence and

arguments of counsel the ruling is subject to modification by the trial judge as events

develop during the trial." (Order, dated November 15 and entered November 16,

2016). However, that caution, which we routinely include in pretrial opinions or orders

ruling on 404(b) evidence issues, motions in limine, and related matters, is based on

Commonwealth       v.   Hicks, 91 A.3d 47 (Pa. 2014), in which our Supreme Court stated:

                Pre-trial resolution of evidentiary matters generally
                increases the efficiency of the trial process, but the
                balancing tests under Rule 403 and Rule 404(b) do not
                present a purely legal question. Probative value and
                prejudice are conjoined in the sense that if evidence is
                probative at all, it is necessarily prejudicial to one side or
                the other-if evidence has no probative value, it ought not
                be admitted in the first place, and this can usually be
                determined before trial. The balancing inquiry, however, is
                a fact -and context -specific one that is normally dependent
                on the evidence actually presented at trial. The value of
                evidence is obviously a fluid notion, and the prejudicial
                effect of the evidence is likewise in flux as matters
                progress. Clearly, a deferred, correct decision is better than
                an early, incorrect one.

                       Although we hold the balancing of probative value
                and prejudice is normally better left for trial, we do not
                intend to preclude all such pre-trial determinations. A court
                may properly exclude-pre-trial-evidence under the
                balancing test that, while relevant, carries an unusually
                high likelihood of causing unfair prejudice and minimal


                                              16
                  probative value regardless of the evidence ultimately
                 presented at trial. There may also be cases where the pre-
                 trial record is sufficiently developed and the evidence to be
                 presented is sufficiently certain to allow the trial court to
                 intelligently and accurately balance the interests involved.
                 However, these scenarios are exceptions rather than the
                 rule and, as this case demonstrates, are exceedingly
                 unlikely to apply to assessments of the cumulative nature
                 of potential testimony; thus, we caution against pre-trial
                 Rule 4031404(b) balancing assessments unless the trial
                 court finds it manifestly appropriate. 9


                 9  A pre-trial ruling on admissibility may help define the
                 issues and the potential evidence, but the court retains the
                 discretion to modify its ruling as circumstances develop or
                 as the evidence at trial diverges from that which was
                 anticipated.




 Id. at 53-54.

        Here, we discern no error in either the cautionary language of our orders or our

non -prejudicial decision to defer ruling on the Cross -Case Evidence, both of which

were based on the holding and rationale of our Supreme Court in Hicks.

        3.       We Properly Ruled that the Prior PWID Evidence was Not
                 Admissible in the Commonwealth's Case in Chief

        In its first assignment   of error, the Commonwealth contends that we erred in

ruling that it would not be permitted to introduce the Prior PWID Evidence in its case in

chief. This contention is bootless.

       In determining the admissibility    of evidence, a trial court must decide whether

the evidence is relevant and, if so, whether its probative value outweighs its prejudicial

effect. Commonwealth      v.   Serge, 837 A.2d 1255, 1260 (Pa. Super. 2003). Evidence is

relevant if it logically tends to establish a material fact in the case, tends to make a fact



                                             17
 in   issue more or less probable, or tends to support a reasonable inference or

 proposition regarding a material fact. Id.

        Evidence of "prior bad acts" or "other acts" is generally not admissible if offered

 merely to show bad character or propensity for committing bad acts. Pa.R.E.

 404(b)(1); Commonwealth     v.   Wattley, 880 A.2d 682, 686 (Pa. Super. 2005), appeal

 dismissed as improvidently granted, 924 A.2d 1203 (Pa. 2007); Commonwealth                v.


 Barger, 743 A.2d 477, 480 (Pa. Super. 1999) (en banc). The 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
              believe the accused guilty, and thus effectually to strip him
              of the presumption of innocence.

Commonwealth     v.   Kinard, 95 A.3d 279 (Pa. Super. 2014) (citing Commonwealth           v.


Spruill, 391 A.2d 1048 (Pa. 1978)).

        However, even where there is some prejudicial impact, evidence of other

crimes, wrongs, or bad acts may be admitted where there is a legitimate evidentiary

purpose, its probative value outweighs the prejudicial effect likely to result from its

admission, and an appropriate limiting instruction is given. Commonwealth       v.   Paddy,

800 A.2d 294, 307 (Pa. 2002). Specifically, "evidence of other crimes, wrongs, or acts

may be admitted for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity or absence of mistake or accident."           Pa.R.E.

404(b)(2).   Moreover,    Pa.R.E. 404(b) does not distinguish between prior and

subsequent acts and is not limited to crimes proved beyond a reasonable doubt             in

court, but also includes other crimes, wrongs, and bad acts, even if they lack definitive


                                              18
proof. Wattley, supra, 880 A.2d at 683; Commonwealth v. Ardinger, 839 A.2d 1143,

1145 (Pa. Super. 2003) (internal citation omitted).

       In   order for evidence of prior crimes to be admissible to show intent, "the

evidence 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." Commonwealth           v.   Aguado, 760 A.2d 1181, 1186 (Pa. Super. 2000)

(en banc) (quoting Commonwealth                v.    Camperson, 612 A.2d 482, 484 (1992)

(emphasis in original)). "There must be a logical connection between the prior incident

and the crime for which the accused is being tried. Important factors to be considered

in making this   determination include the proximity           in   time between the incidents; the

similarity in the circumstances surrounding the incidents; and whether evidence of the

prior crime is necessary to rebut the accused's evidence or contention of accident,

mistake or lack of required intent. Commonwealth              v.    Camperson, 612 A.2d 482, 483-

84 (Pa. Super. 1992) (citations, quotations, and quotation marks omitted).

       A common plan or scheme justifies admission where "two or more crimes [are]

so related to each other that proof of one tends to prove the others or establish the

identity of the person charged with the commission of the crime at trial...In other

words[,] where there is such     a   logical connection between the crimes that proof of one

will naturally tend to show that the accused is the person who committed the other."

Commonwealth      v.   Fortune, 346 A. 2d 783 (Pa. 1975). See also Commonwealth                  v.


Miller, 644 A.2d 1310 (Pa. 1995) (requiring a "logical connection" between the crimes);

Commonwealth      v.   Elliott, 700 A.2d 1243, 1249 (Pa. 1997) (internal citations omitted),

abrogated on other grounds by Commonwealth               v.   Freeman, 827 A.2d 385 (Pa. 2003).



                                                    19
    Similarities cannot be confined to insignificant details that would likely be common

    elements regardless of the individual committing the crime.                       See Commonwealth        v.


    Hughes, 555 A.2d 1264, 1283 (Pa. 1989) (internal citations omitted).                         Evidence of a

    common scheme can establish any element of a crime, such as identity and mental

    state, so long as the scheme is not being used just to establish a propensity of the

    defendant to commit crimes. See Commonwealth                        v.   Miller, 664 A.2d 1310, 1318 (Pa.

    1995), abrogated on other grounds by Commonwealth v. Hanible, 836 A.2d 36 (Pa.

    2003). In determining if other incidents show a common plan or scheme, the Court

should focus not just on a defendant's actions, but on the factual circumstances of the

    incidents in their entirety. See Commonwealth                 v.    O'Brien, 836 A.2d 966, 970-71 (Pa.

Super. 2003) (internal citations omitted).                   Stated otherwise, the similarities of the

incidents need not lay solely in the perpetrator's acts, but in the shared similarities in

the details of each crime.            See Commonwealth             v.    Newman, 598 A.2d 275, 278 (Pa.

    1991).

             The list referenced in Rule 404(b)(2), from which the Commonwealth has

selected two exceptions, is not exhaustive. In addition to the enumerated purposes,

our appellate courts have long recognized a res gestae exception that allows

admission of other bad acts when relevant to furnish the context or complete the story

of the events surrounding a crime, or where the particular crime or act was part of a

chain, sequence, or natural development of events forming the history of a case. See

Commonwealth         v.   Dillon, 863 A.2d at 6012; Wattley, 880 A.2d at 687; Commonwealth

v.    Page, 965 A.2d 1212, 1221 (Pa. Super. 2009); Commonwealth                            v.   Passmore, 857


2 The res gestae exception   is discussed in both the Superior   Court's en bane opinion and the Supreme Court's
affirming opinion.

                                                        20
A.2d 697, 711 (Pa. Super. 2004). As our Superior Court has noted, trial courts are not

"required to sanitize the trial to eliminate all unpleasant facts from ... consideration

where those facts are relevant to the issues at hand and form part of the history and

natural development of the events and offenses for which the defendant is charged."

Paddy, supra, 800 A.2d at 308.

          Even when evidence is offered for one of these purposes, the trial court must

still balance the need for the other crimes evidence in light of its convincingness and of

all the prosecution's other evidence against its potential prejudice to the accused. See

Commonwealth       v.   Ulatoski, 371 A.2d 186, 191 n.11 (Pa. 1977); Commonwealth            v.


Wright, 393 A.2d at 836; Commonwealth              v.   Hude, 390 A.2d 183, 186 (Pa. Super.

1978). Relevant evidence may be excluded "if its probative value is outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading of the jury." Serge,

supra, 837 A.2d at 1260. "Whether relevant evidence is unduly prejudicial is a function

in part   of the degree to which it is necessary to prove the case of the opposing party."

Commonwealth       v.   Gordon, 673 A.2d 866, 870 (Pa. 1996) (finding other acts evidence

admissible as necessary part of the Commonwealth's case where a jury could find

reasonable doubt without it). See also Commonwealth                   v.   Obrien, supra. Other

considerations to be factored into the balancing test include the strength of the "other

crimes" evidence, the similarities between the crimes, the time lapse between crimes,

the efficacy of alternative proof of the charged crime, and "the degree to which the

evidence probably will rouse the jury to overmastering hostility. McCormick, Evidence

§ 190 at 811 (4th ed. 1992). See also       Commonwealth         v.   Frank 577 A.2d 609 (Pa.




                                              21
 Super. 1990) (enumerating and discussing balancing test factors, including ability for

 limiting instruction to reduce prejudice).

        In this case, the   Commonwealth attempts to fit the Prior PWID Evidence into

the intent and common plan or scheme exceptions, and additionally maintains that the

evidence is admissible to demonstrate Defendant's knowledge of drug trafficking and

to rebut Defendant's anticipated claim of personal use. However, despite several

hearings and the opportunity to submit briefs, the Commonwealth has not identified a

single Pennsylvania case in which a prior PWID conviction was admissible under the

cited exceptions in the prosecution's case in chief in a subsequent PWID prosecution

or to show "knowledge." As discussed above, exceptions to the rule precluding

evidence of prior criminal acts are narrow. They apply only "where there is such a

logical connection between the crimes that proof of one will naturally tend to show that

the accused is the person who committed the other." Aguado, 760 A.2d at 1186

(quoting Commonwealth        v.   Morris, 425 A.2d 715, 720 (1981)). Here, the required

connections are not present. Simply, the Commonwealth's attempts to invoke

exceptions are not supported by either the limited proffer it made or the law

summarized above.

       Aguado illustrates both the narrowness of the intent exception and the

Commonwealth's failure to establish any other cognizable basis for admission in its

case in chief of the Cross -Case Evidence or the Prior PWID evidence. In Aguado, the

defendant was charged with PWID. Nine months earlier, he had been charged with

PWID for acts occurring in the same neighborhood in which his current charges arose.

The defendant filed a motion in limine seeking to preclude the Commonwealth from



                                              22
 introducing evidence of his prior PWID conviction. The motion was discussed on the

second day of trial. The trial court agreed that the prior conviction could not be used as

propensity evidence. The Commonwealth indicated that it would not use the prior

conviction in         its    case    in   chief.   The trial court then         deferred   ruling   on   the

Commonwealth's use of the prior conviction as rebuttal evidence until such time as the

defendant's defense became clear.

           The issue was discussed again immediately before the defendant was to testify.

At that time, the trial court reiterated that it would defer ruling on the admissibility of the

prior conviction as rebuttal evidence, and that such ruling would be based on the

defendant's testimony.               However, the      trial    court went further and         stated    its

predisposition to admit the defendant's                     prior conviction as evidence of intent.

Thereafter, the defendant chose not to testify on his own behalf.                      He was ultimately

convicted of PWID.

       On appeal, the defendant argued that the trial court's statement constituted

error, and this error caused him to forego his constitutional right to testify on his own

behalf. The Superior Court agreed and reversed, finding that the effect of the trial

court's deferral            of its   evidentiary ruling,       coupled   with    the   disclosure of its

predisposition, did, in fact, cause the defendant not to testify.

       In    the course of its opinion, the Superior Court defined the intent exception as

follows:

                 In order for evidence of prior crimes to be admissible to
                 show intent, "the evidence 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." Commonwealth v. Camperson, 417
                 Pa. Super. 280, 612 A.2d 482, 484 (1992) (emphasis


                                                       23
              added). In this case, the Commonwealth presented no
              evidence that Aguado's conviction "grew out of or was in
              any way caused by" his prior drug activity. Moreover, we
              cannot conclude that Aguado could form and maintain his
              "intent" over the nine -month period between the two
              incidents.

 Aguado, 760 A.2d at 1186-87 (emphasis in original).

       Here, as in Aguado, the Commonwealth has not demonstrated that the instant

 charges "grew out of or [were] in any way caused by" Defendant's PWID convictions in

 New Jersey in 2005 and 2010. Also as in Aguado, we cannot conclude that Defendant

 could form and maintain his "intent" over the extended period of time between the New

Jersey convictions and either of these cases.

       Similarly, regarding the common plan or scheme exception, the Commonwealth

did not come close to demonstrating that the New Jersey drug crimes and the crimes

charged in this case are so related to each other that proof of one tends to either prove

the other or establish the identity of the person charged. The required connection is

missing.

       We recognize that Pennsylvania Courts have on occasion admitted prior

conviction evidence in a subsequent prosecution for the same crime, most notably in

the prosecution of sexual offenses. However, the so-called "lustful disposition"

exception is limited to sexual offenses involving the same victim and [where] the two

acts are sufficiently connected to suggest a continuing course of conduct. See

Commonwealth    v.   Wattley, supra; Commonwealth      v.   Knowles, 637 A.2d 331 (Pa.

Super. 1994). This exception is due, in large measure, to the fact that such cases

often "have a pronounced dearth of independent eyewitnesses, and there is rarely any

accompanying physical evidence. Commonwealth v. Paddy, 800 A.2d 294 (Pa. 2002).


                                          24
 Here, Defendant is charged with possessory drug crimes and a domestic assault, not

sexual     offenses.   Further,   the Commonwealth       has   substantial      traditional and

independent evidence of guilt beyond the Prior PWID Evidence (and the Cross -Case

Evidence). Additionally, the Commonwealth has not demonstrated the requisite

connection between prior New Jersey convictions and the crimes charged in these

cases. Under these circumstances, no version of the lustful disposition exception or

the somewhat related res gestae exception even potentially applies.

         In short, based on the record   established to date, the Commonwealth has failed

to establish any legitimate purpose or any exception or other cognizable basis for

admission in its case in chief of the Prior PWID Evidence.

         Additionally, and even more significantly, the prejudicial effect of the Prior PWID

Evidence, if admitted during the Commonwealth's case in chief, would unduly

outweigh its probative value. The potential prejudice of admitting the Prior PWID

Evidence is obvious and palpable. Aguado, supra. "Evidence of prior criminal activity is

probably only equaled by a confession in its prejudicial impact upon       a   jury." Id. at 1187

(quoting Spruill, supra, 391 A.2d at 1050).        In   this   case   we       conducted     the

requisite balancing test based on the record presented to date and found that the Prior

PWID Evidence carries an unusually high likelihood of causing prejudice and minimal

probative value.

      In   summary, the Commonwealth has little need for the Prior PWID Evidence.              It


has ample other evidence. In both cases, the Commonwealth has the observations

and testimony of police officers, physical evidence and money recovered by the police,

lab testing of the controlled substances, Defendant's statements and clean drug test,



                                              25
     traditional evidence of intent to deliver such as the amounts and types of drugs at

     issue, the substantial number of packets and the types of packaging, the amount and

     denominations of cash recovered, and the locations in which the drugs were found,

     and the ability, as it routinely does, to call an expert witnesses. In case No. 876, the

     Commonwealth additionally has the statements and testimony of Defendant's former

     girlfriend and her son. Further, there are no temporal, geographic, economic,

     criminogenic or other connections, logical or not, between the New Jersey convictions

     and the instant possessory drug offenses. Moreover, the Prior PWID Evidence is

     classic propensity evidence and the domestic violence -based crimes charged in case

     No. 876 are completely unrelated to either the prior New Jersey convictions or the

 offenses charged in case No. 115. Thus, admitting evidence of seven prior drug

 trafficking   crimes, several of which apparently occurred in school zones, could

 certainly lead the jury in each of these cases to convict Defendant of possessory drug

offenses because of his "propensity" to sell drugs, and might lead a jury to convict on

the domestic violence -related charges because of his prior record. Simply, the

probative value of and the Commonwealth's need for the Prior PWID Evidence pales

in comparison to the potential for unfair prejudice to Defendant if the evidence is

admitted in the Commonwealth's case in chief.

          In its brief and oral arguments to this Court, the Commonwealth opined that
                                                                                      it

needed the proffered evidence to anticipatorily "rebut" the defense of personal use that

it   expects Defendant will raise. However, rebuttal does not typically occur pretrial. Until

trial, we will not know whether Defendant will raise a personal use defense. Similarly,

we will not know whether the statements and arguments of counsel, the presentation



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of evidence, the questioning of witnesses, or anything else that transpires at trial might

"open the door" for admission of the Prior PWID Evidence or other 404(b) evidence. If

the proverbial door is opened, our ruling and the attendant balancing test may be

revisited, if necessary, based on the actual evidence submitted and arguments made

by the parties.




        For these reasons, we believe that the challenged orders should be affirmed.




                                                       BY THE COURT:




Date:       i     2-9 170   i7                          0


Cc:     Superior Court of Pennsylvania
        Jonathan Mark, J.
        Public Defender (EC)
        District Attorney (CS)                                     vi
                                                             t-.




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