J-S49036-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 STEVEN JOHN GARDNER, JR.                :
                                         :
                   Appellant             :   No. 288 MDA 2018

          Appeal from the Judgment of Sentence January 18, 2018
    In the Court of Common Pleas of Adams County Criminal Division at
                      No(s): CP-01-CR-0000595-2017


BEFORE:    SHOGAN, J., STABILE, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                FILED SEPTEMBER 20, 2018

     Appellant, Steven John Gardner, Jr., appeals from the judgment of

sentence entered by the Court of Common Pleas of Adams County after a jury

convicted Appellant of terroristic threats, recklessly endangering another

person (REAP), and two counts of simple assault. Appellant claims the trial

court abused its discretion in allowing the prosecution to introduce certain

evidence pursuant to Pennsylvania Rule of Evidence 404(b). We affirm.

     Appellant was charged with the aforementioned offenses in connection

with his assault of his former fiancée, Stephany Nonemaker (“the Victim”).

The following factual background was developed at Appellant’s jury trial:

     On May 9, 2017, at approximately 1:00 p.m., Tracy Zimmer was
     delivering mail at 69 Winslow Court, Gettysburg, Adams County,
     Pennsylvania and heard a woman screaming at 73 Winslow Court.
     Ms. Zimmer saw the front door open and heard a woman
     screaming at the top of her lungs and also heard a man’s voice
     screaming at her and then the door slammed shut with force. Ms.

____________________________________
* Former Justice specially assigned to the Superior Court.
J-S49036-18


     Zimmer heard the screaming continue for about ten or fifteen
     seconds. Ms. Zimmer subsequently called the police.

     [The Victim] testified that she lived at 73 Winslow Court,
     Gettysburg, Adams County, Pennsylvania on May 9, 2017 with
     [Appellant]. 73 Winslow Court is a three story townhouse and is
     in a row with other townhouses, with neighbors on both sides of
     73 Winslow Court. The Victim testified that on May 9, 2017 she
     worked at Gettysburg Hospital in the emergency department as a
     registered nurse and got home from work at approximately 7:00
     a.m. At approximately 10:00 a.m. Appellant got into an argument
     with the Victim and the Victim retreated to the master bedroom
     and locked the door. Appellant picked the lock, entered the
     bedroom, pulled the Victim off the bed to the doorway of the
     bathroom and started kicking and punching the Victim on her
     arms, chest, back and legs with a closed fist and with his bare
     feet. Appellant then put both hands around the Victim’s neck and
     choked her. The Victim testified she felt pressure on her neck and
     it was hard to breath[e]. The Victim attempted to punch Appellant
     in the groin. Appellant grabbed her foot and put her foot on her
     neck, applied pressure and the Victim testified that … it was
     difficult to breath[e]. Appellant continued screaming and yelling
     at the Victim, pulled the Victim’s hair and continued to kick and
     punch her. This assault occurred on and off for approximately two
     hours. During the assault Appellant asked the Victim whether the
     Victim wanted to die today, and Appellant also told the Victim she
     was going to die today.

     Between approximately 12:30 p.m. and 1:00 p.m.[,] the Victim
     was on the second floor with Appellant and was able to run down
     to the first floor, unlock the front door and open the door.
     Appellant grabbed the Victim by the hair and yanked the Victim
     back into the house before the Victim could get outside. The
     Victim fell on the floor and Appellant kicked the Victim again.
     Appellant grabbed the Victim by her hair and forced her upstairs
     into the living room. The Victim sat down on a chair in the living
     room. Appellant went into the kitchen, returned to the living
     room, carrying a handgun and forcefully pressed the loaded
     handgun to the left temple of the Victim. Appellant held the gun
     with two hands and told the Victim he was going to kill her. The
     Victim was crying and begged Appellant not to kill her. Appellant
     then held the handgun to his own head and told the Victim he was
     going to kill himself. Appellant then took the handgun back into
     the kitchen. Appellant returned to the living room, slammed a

                                   -2-
J-S49036-18


     coffee table on the floor and the coffee table broke. Appellant
     threw one of the legs of the coffee table at the Victim’s head,
     which missed the Victim.       Shortly thereafter, Cumberland
     Township Police arrived at the residence and Appellant was
     subsequently arrested.

     Shannon Small, a registered nurse and sexual assault nurse
     examiner at Gettysburg Hospital, testified concerning her
     treatment and observations of the Victim on May 10, 2017 at the
     Gettysburg Hospital. Nurse Small testified concerning visible
     injuries on the Victim which she documented through photographs
     and diagrams. On the Victim’s back, Nurse Small documented
     twenty-two separate injuries. On the front of the Victim, Nurse
     Small documented thirteen separate injuries. On the left and right
     lateral views of the Victim (the side view), Nurse Small
     documented eleven injuries. On the Victim’s head and neck area
     Nurse Small documented six injuries. On the Victim’s eyes and
     inside her mouth, Nurse Small documented one injury. Nurse
     Small testified the visible injuries consisted of bruises, abrasions,
     and scratches.

     Dr. Gregory J. Codori, an emergency room doctor at Gettysburg
     Hospital for twenty-five years, testified concerning his treatment
     of the Victim on May 10, 2017. Dr. Codori corroborated the
     testimony of Nurse Small and testified the Victim suffered multiple
     contusions, abrasions and scratches over her face, neck, chest,
     back, and extremities. Dr. Codori testified that the injuries were
     consistent with blunt force trauma from a punch or a kick.

     Sergeant Matthew S. Trostle of the Cumberland Township Police
     Department testified that on May 10, 2017, he went to the Victim’s
     residence and recovered a [Beretta] Nano 9 mm handgun which
     had a round in the chamber and a full magazine. The Victim
     advised Sergeant Trostle that this was the handgun which
     Appellant used to threaten the Victim. At trial, the Victim
     identified this handgun as the handgun Appellant pressed to her
     temple while Appellant threatened to kill the Victim.

     Appellant testified that on May 9, 2017 he and the victim were
     involved in a verbal dispute. Appellant testified that during the
     verbal dispute the Victim grabbed the handgun and Appellant
     jumped on top of her to try to get the gun away from the Victim.
     Appellant testified he was holding the Victim’s arms and punched
     her in the chest to get her to release the handgun. Appellant

                                     -3-
J-S49036-18


     grabbed the Victim, threw her to the ground, got on top of her
     and forced her to release the handgun. Appellant testified he then
     grabbed the Victim, picked her up, and threw her on the bed.
     Appellant testified this incident happened in the master bedroom
     on the third floor of the townhouse.

     Appellant testified that this was the only physical altercation he
     had with the Victim on May 9, 2017. Appellant denied threatening
     the Victim with the handgun or pressing the handgun up against
     the Victim’s temple. Appellant denied punching or kicking the
     Victim other than Appellant attempting to take the handgun from
     the Victim.

     In rebuttal testimony, the Commonwealth called Allison Krayo as
     a witness. Allison Krayo was a prior girlfriend of Appellant and
     testified concerning a prior [incident] involving Appellant. Prior to
     Ms. Krayo’s testimony, this Court provided the jury with the
     following cautionary instruction:

        The Court: Before Ms. Krayo testifies, there is an instruction
        I want to give you concerning her testimony.

        The evidence which the Commonwealth is going to present
        for you is what is known as rebuttal, and it’s to rebut
        evidence that has been presented in the defense case, and
        this evidence is being offered for strictly a limited [purpose].

        It is offered for the purpose of tending to show that
        [Appellant’s] actions in regards to the firearm that is alleged
        in this case to have been held to the alleged victim’s head,
        and [Appellant] gave his own rendition of what occurred …
        this evidence is being offered to show that [this] was not an
        accident … this evidence is offered by the Commonwealth to
        show [Appellant’s] intent in this case.

        This evidence that we are going to present must not be
        considered by you in any way other than for the purpose I
        have just stated.

        You may not regard this evidence as showing [Appellant] is
        a person of bad character or criminal tendencies from which
        you might be inclined to infer guilt.




                                     -4-
J-S49036-18


         If you do find [Appellant] guilty in this case following my
         instructions and following all the evidence, that must be
         based solely on your belief that he committed the crimes in
         this case, and not because you believe that he has
         committed other offenses in the past or is a bad person.

      Ms. Krayo testified that she dated Appellant between June 2009
      and February 2010. Ms. Krayo testified that she and Appellant
      were in Appellant’s bedroom laying on Appellant’s bed. Ms. Krayo
      and Appellant were arguing and Appellant grabbed a handgun,
      pointed it at Ms. Krayo’s face[,] approximately twelve to fifteen
      inches away from her face and told Ms. Krayo to “shut the fuck
      up.” Ms. Krayo did not threaten Appellant before this incident nor
      did she touch the handgun. Ms. Krayo testified that this incident
      occurred near the end of their relationship.

Trial Court Opinion (“T.C.O.”), 4/4/18, at 2-5.

      At the conclusion of the trial, the jury convicted Appellant of the

aforementioned charges. On January 18, 2018, the trial court imposed an

aggregate term of 11½ to 23 months’ imprisonment with a concurrent seven

years’ probation. Appellant filed a timely appeal and complied with the trial

court’s direction to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).

      Appellant limits his appeal to challenge the trial court’s discretion in

permitting the Commonwealth to present evidence pursuant to Pennsylvania

Rule of Evidence 404(b). Specifically, Appellant contends that it was error to

allow the admission of Ms. Krayo’s testimony in light of the timeframe between

the acts and the crimes for which Appellant was on trial and also his assertion

that the evidence was not relevant to motive, intent, or lack of mistake.

      In reviewing a challenge to a trial court’s discretion in admitting

evidence, we are guided by the following standard:


                                     -5-
J-S49036-18



     The standard of review employed when faced with a challenge to
     the trial court's decision as to whether or not to admit evidence is
     well settled. Questions concerning the admissibility of evidence
     lie within the sound discretion of the trial court, and a reviewing
     court will not reverse the trial court’s decision absent a clear abuse
     of discretion. Commonwealth v. Hunzer, 868 A.2d 498 (Pa.
     Super. 2005). Abuse of discretion is not merely an error of
     judgment, but rather where the judgment is manifestly
     unreasonable or where the law is not applied or where the record
     shows that the action is a result of partiality, prejudice, bias or ill
     will. Id.

Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010) (citation

omitted).

     Moreover, it is well-established that:

     [g]enerally, evidence of prior bad acts or unrelated criminal
     activity is inadmissible to show that a defendant acted in
     conformity with those past acts or to show criminal propensity.
     Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be
     admissible when offered to prove some other relevant fact, such
     as motive, opportunity, intent, preparation, plan, knowledge,
     identity, and absence of mistake or accident. Pa.R.E. 404(b)(2).
     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. Commonwealth
     v. Powell, 598 Pa. 224, 956 A.2d 406, 419 (2008).

Commonwealth v. Sherwood, 603 Pa. 92, 114, 982 A.2d 483, 497 (2009).

     The Pennsylvania Supreme Court has indicated that a party’s challenge

to the remoteness of an evidence admitted under Rule 404(b) “generally

affects the weight—but not the admissibility—of the evidence; further, the

Court has emphasized the deference due to the trial court in the exercise of

its discretion.” Commonwealth v. Reed, 605 Pa. 431, 446-47, 990 A.2d

1158, 1168 (2010). “While remoteness in time is a factor to be considered in


                                      -6-
J-S49036-18



determining the probative value of other crimes evidence under this theory,

the importance of the time period is inversely proportional to the similarity of

the crimes in question.”   Commonwealth v. O'Brien, 836 A.2d 966, 971

(Pa.Super. 2003) (citation omitted).       Our courts have determined that

remoteness in time is “another factor to be considered in determining whether

a prior incident ... [of abuse] tends to show that a second incident ... [of

abuse] was an accident.” Commonwealth v. Donahue, 519 Pa. 532, 545,

549 A.2d 121, 127–28 (1988) (plurality) (finding three years was not unduly

remote). See also Commonwealth v. Luktisch, 680 A.2d 877 (Pa.Super.

1996) (finding evidence of sexual molestation by defendant that occurred

between six and fourteen years prior to the crime charged in the present case

was admissible under the common scheme, plan, design or course of conduct

exception to the general rule that evidence of uncharged acts is inadmissible

against defendant).

      Moreover, with respect to probative value, this Court held in

Commonwealth v. Green, 76 A.3d 575 (Pa.Super. 2013), appeal denied, 87

A.3d 318 (Pa. 2014), that the trial court did not abuse its discretion in

permitting the admission of evidence that the appellant had pointed a gun at

the victim's head “in mere play” two months before the murder, which was

probative of the appellant’s motive or absence of mistake.

      In the instant case, the trial court allowed the prosecution to introduce

Ms. Krayo’s testimony on rebuttal after Appellant had testified that he had

never intentionally threatened the Victim with a handgun, denied pressing the

                                     -7-
J-S49036-18



gun against the Victim’s forehead and claimed only to have attempted to grab

the handgun to protect himself from the victim.

      Although seven to eight years had elapsed between the acts testified to

by Ms. Krayo and the crime for which Appellant was on trial, evidence of the

prior act was necessary to rebut Appellant’s contention that he never had the

intent to threaten the Victim with the firearm and that he was merely

attempting to remove the firearm from the Victim’s grip.

      We agree with the trial court that the evidence of Appellant’s prior act

of recklessly pointing a firearm at close range to his paramour’s head in their

bedroom after a verbal dispute was not unduly remote and was probative to

this issue of motive or absence of mistake. Accordingly, we conclude that

Appellant’s claim is meritless.

      For the foregoing reason, we affirm the judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/20/2018




                                     -8-
J-S49036-18




              -9-
