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                              2016 PA Super 168

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

ROBERT N. SITLER

                         Appellee                    No. 3051 EDA 2013


                 Appeal from the Order November 1, 2013
           In the Court of Common Pleas of Montgomery County
            Criminal Division at No(s): CP-46-CR-0000389-2013


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, J., SHOGAN, J.,
        LAZARUS, J., MUNDY, J., OLSON, J., OTT, J., and STABILE, J.

CONCURRING AND DISSENTING OPINION BY LAZARUS, J.:FILED JULY 26, 2016

      I concur with the majority that the trial court properly granted Sitler’s

motion in limine to exclude evidence of his alcohol consumption prior to the

collision and that the trial court prematurely addressed Sitler’s crimen falsi

charges. I respectfully dissent, however, as to the majority’s conclusion that

the trial court should permit the introduction of evidence of Sitler’s prior

vehicular manslaughter conviction.

      The majority emphasizes that Sitler’s prior conviction for vehicular

manslaughter in Alabama is relevant and probative in the instant matter

because it involved similar circumstances and could be used to demonstrate

that Sitler knew his driving behavior created a substantial risk of death.

Both the Commonwealth and the majority rely upon Commonwealth v.

Ross, 57 A.3d 85 (Pa. Super. 2012) (en banc), in which we stated that
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       [w]ith a modicum of effort, in most cases it is possible to note
       some similarities between the accused’s prior bad conduct 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 prior bad acts to the crime in
       question. . . . [T]his Court has warned that prior bad 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. See, e.g., Commonwealth v. Kjersgaard, 419 A.2d
       502, 505 (1980).

Ross, supra at 104-05.1
____________________________________________


1
  I note that the facts of Ross involved an attempt to introduce prior bad
acts evidence to show a common plan or scheme, rather than to
demonstrate knowledge. In that circumstance, the similarity between the
acts was extremely significant; to show a common scheme or plan, the
perpetrator’s acts must be so similar that they are “earmark[ed] as the
handiwork of the accused. [M]uch more is demanded than the mere
repeated commission of crimes of the same class[.] . . . The [crime must be
so] distinctive as to be like a signature.” Ross, supra at 102 (citation
omitted) (emphasis in original). Thus, the prior bad acts in Ross were
introduced at trial to show modus operandi rather than knowledge. In some
circumstances, similarity between criminal acts could be useful to show
knowledge. See, e.g., Commonwealth v. Russell, 938 A.2d 1082 (Pa.
Super. 2007) (evidence of defendant’s knowledge of use of accelerant based
upon use in prior arson incident admissible). Additionally, knowledge can be
used to demonstrate state of mind, as the Commonwealth attempts
instantly. See Commonwealth v. McCloskey, 835 A.2d 801 (Pa. Super.
2003) (teenagers’ testimony that they drank alcohol at defendant parent’s
home, in her presence, on regular basis, was admissible to demonstrate
defendant had knowledge and acted recklessly in prosecution for involuntary
manslaughter, which arose from deaths of three teenagers in automobile
accident after they left party at defendant’s home). However, in the instant
matter, I take issue with the conclusion that the similarities between Sitler’s
prior conviction and the current incident provided him with specialized
knowledge; as the trial court noted, “[e]ven without ever having been in an
accident, most people generally know that reckless driving can kill others. . .
. [Additionally, t]here are numerous ways in which an operator of a vehicle
can drive recklessly.” Trial Court Opinion, 4/30/14, at 11.



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        Assuming that evidence of Sitler’s prior vehicular manslaughter

conviction is admissible as an exception under Rule 404(b)(2), the majority

glosses over the requirement that the trial court balance the probative value

of the evidence with the potential prejudicial effect it would likely have on a

jury.   See id. at 98 (“In determining whether evidence of other prior bad

acts is admissible, the trial court is obliged to balance the probative value of

such evidence against its prejudicial impact.”).         Here, the trial court

performed its duty to weigh probative value versus prejudicial effect and

determined that the prejudicial effect of the evidence would be greater. Our

task is to evaluate the trial court’s decision for an abuse of discretion, and

we may not disturb the trial court’s ruling merely because we would have

ruled differently. See Commonwealth v. Horvath, 781 A.2d 1243, 1246

(Pa. Super. 2001) (quoting Commonwealth v. Cohen, 605 A.2d 1212,

1218 (Pa. 1992) (“[A] discretionary ruling cannot be overturned simply

because a reviewing court disagrees with the trial court’s conclusion.”)).

        Instantly, even if Sitler’s prior vehicular manslaughter conviction

shows some degree of particular knowledge regarding driving behavior, the

trial court acted within its discretion in determining that the overriding effect

of the evidence likely would be prejudicial.    See Horvath, supra at 1247

(lower court did not abuse its discretion in refusing to permit Commonwealth

to offer defendant’s previous summary convictions as evidence to prove

reckless endangerment where court “perceived a high risk that the jury

would misconstrue the purpose for which the prior convictions were offered,

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and a likelihood that the jury would accord undue weight to the defendant’s

prior conduct”).     Indeed, the Commonwealth may not introduce evidence

that would “strip [the defendant] of the presumption of innocence by proving

that he has committed other criminal acts.” Ross, supra at 98-99. Thus, in

my view, we are not in a position to disturb the trial court’s ruling regarding

the   introduction    of   Sitler’s   prior   vehicular   manslaughter   conviction.

Horvath, supra.

      For the foregoing reasons, I would affirm the trial court’s ruling as to

Sitler’s prior vehicular manslaughter conviction and would join the majority’s

decision as to Sitler’s alcohol consumption and crimen falsi charges.

      Judge Bowes, Judge Mundy and Judge Stabile join this Concurring and

Dissenting Opinion.




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