J-A04042-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

EDROY WIGFALL,

                            Appellee                 No. 3557 EDA 2015


                     Appeal from the Order October 29, 2015
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0012295-2011

BEFORE: SHOGAN, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED MARCH 27, 2017

        The Commonwealth appeals from the trial court’s order denying its

motion in limine seeking the admission of prior bad acts evidence in its case

against Appellee, Edroy Wigfall.1 We affirm.

        We take the relevant facts and procedural history of this matter from

our independent review of the certified record.        This case arises from

Appellee’s alleged straw purchases, in coordination with co-defendant Louis

Dawkins (Dawkins), of three firearms through Tracey Barats (Barats) in

January of 2011. At that time, Barats was residing with a friend, Jill Johnson

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  The Commonwealth has certified that the court’s order terminates or
substantially handicaps the prosecution. See Pa.R.A.P. 311(d).
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(Johnson), an associate of Appellee and Dawkins.           On January 11, 2011,

while speaking with Johnson over the telephone, Appellee asked her to

purchase a gun, and she declined.         Johnson then asked Barats, who was

present in the room with her, to purchase the gun, and Barats assented.

Appellee picked Barats up at Johnson’s residence and began to drive her to a

gun shop to purchase a firearm. Appellee then called Dawkins and arranged

for him to bring Barats to the gun shop instead.           Dawkins gave Barats

money to purchase the gun, and she filled out the requisite paperwork at the

shop. Barats picked up the gun the following day, and gave it to Dawkins.

Barats was not compensated for the transaction.

        A few days later, on January 14, 2011, Appellee and Dawkins

contacted Barats and Johnson and informed them that a gun shop was

having a sale. Dawkins gave Barats money to purchase two firearms, and

she completed the purchase after filling out the associated paperwork.

Dawkins provided Barats with two grams of cocaine after the transaction.

        Police obtained an arrest warrant for Appellee and a search warrant for

his home, and they recovered a gun box from the home. Police traced the

serial number on the gun box to a firearm Johnson had purchased on June 2,

2005.     Police did not recover from the home any of the guns Barats

purchased in 2011.

        During   the   police   investigation,   Johnson   provided   inconsistent

information regarding four gun purchases she made in 2005. In an October

4, 2011 statement, Johnson indicated that she purchased the guns in 2005

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for her own personal use, and not for someone else.         (See N.T. Hearing,

8/25/15, at 6-8).       Years later, on September 10, 2015, Johnson gave a

statement indicating that she purchased four firearms for Appellee and

Dawkins in 2005.        (See Johnson Interview, 9/10/15, at 1-3).    However,

Johnson did not remember actually purchasing two of the firearms, and she

attributed her faulty memory to oxycodone use. (See id. at 2).

        The Commonwealth filed an information charging Appellee with

numerous offenses in connection with the 2011 firearms purchases,

including person not to possess a firearm, criminal conspiracy, and unsworn

falsification to authorities. On August 24, 2015, the Commonwealth filed a

motion in limine seeking to admit prior bad acts evidence at trial indicating

that Johnson purchased four firearms for Appellee and Dawkins in June of

2005.     See Pa.R.E. 404(b).        The trial court denied the Commonwealth’s

motion on October 29, 2015, following a hearing.            This timely appeal

followed.2

        The Commonwealth raises the following question for our review:

              Did the [trial] court err in excluding evidence of
        [Appellee’s] prior illegal purchases of handguns—committed with
        two of the same co-conspirators—which was relevant to
        establish the existence of a conspiracy, to place the cooperating

____________________________________________


2
  The Commonwealth filed a concise statement of errors complained of on
appeal contemporaneously with its notice of appeal. See Pa.R.A.P. 1925(b).
The court entered a Rule 1925(a) opinion on May 5, 2016. See Pa.R.A.P.
1925(a).



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J-A04042-17


        witnesses’ testimony in context, and to show a common plan,
        scheme or design?

(Commonwealth’s Brief, at 4).3

        In its issue on appeal, the Commonwealth challenges the trial court’s

ruling that evidence relating to Appellee’s involvement in the 2005 firearms

purchases by Johnson was inadmissible at his trial on the 2011 offenses.

(See id. at 13). The Commonwealth argues that the evidence is admissible

as a prior bad act pursuant to Pa.R.E. 404(b)(2), and is relevant to inform

the jury of the complete story of this case, to place Johnson’s and Barats’

accounts in context, and to reveal a common scheme, plan, or design

between the 2005 and 2011 purchases.             (See id. at 13-29).   This issue

merits no relief.

        Our standard of review is as follows:

              Questions concerning the admission of evidence are left to
        the sound discretion of the trial court, and we, as an appellate
        court, will not disturb the trial court’s rulings regarding the
        admissibility of evidence absent an abuse of that discretion. An
        abuse of discretion is not merely an error of judgment, but is
        rather the overriding or misapplication of the law, or the exercise
        of judgment that is manifestly unreasonable, or the result of
        bias, prejudice, ill-will or partiality, as shown by the evidence of
        record. [I]f in reaching a conclusion the trial court overrides or
        misapplies the law, discretion is then abused and it is the duty of
        the appellate court to correct the error.

Commonwealth v. Sitler, 144 A.3d 156, 163 (Pa. Super. 2016) (en banc)

(citations and quotation marks omitted).
____________________________________________


3
    Appellee did not file a brief.



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      “Relevance    is    the   threshold   for   admissibility   of     evidence.”

Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super. 2015) (en banc),

appeal denied, 128 A.3d 220 (Pa. 2015) (citation omitted).             “Evidence is

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

make a fact at issue more or less probable or supports a reasonable

inference or presumption regarding a material fact.” Id. (citation omitted).

“All relevant evidence is admissible, except as otherwise provided by law.”

Id. (citation omitted).

                  Generally, 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.

            The Commonwealth must prove beyond a reasonable
      doubt that a defendant has committed the particular crime of
      which he is accused, and it may not strip him of the presumption
      of innocence by proving that he has committed other criminal
      acts.


                                  *    *    *

            The purpose of Rule 404(b)(1) is to prohibit the admission
      of evidence of prior bad acts to prove “the character of a person
      in order to show action in conformity therewith.”         Pa.R.E.
      404(b)(1).    While Rule 404(b)(1) gives way to recognized
      exceptions, the exceptions cannot be stretched in ways that

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     effectively eradicate the rule. With 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. . . .

Commonwealth v. Ross, 57 A.3d 85, 98–99, 104 (Pa. Super. 2012) (en

banc), appeal denied, 72 A.3d 603 (Pa. 2013) (case citations and footnote

omitted).

             When ruling upon the admissibility of evidence under the
     common plan exception, the trial court must first examine the
     details and surrounding circumstances of each criminal incident
     to assure that the evidence reveals criminal conduct which is
     distinctive and so nearly identical as to become the signature of
     the same perpetrator. Relevant to such a finding will be the
     habits or patterns of action or conduct undertaken by the
     perpetrator to commit crime, as well as the time, place, and
     types of victims typically chosen by the perpetrator. Given this
     initial determination, the court is bound to engage in a careful
     balancing test to assure that the common plan evidence is not
     too remote in time to be probative. If the evidence reveals that
     the details of each criminal incident are nearly identical, the fact
     that the incidents are separated by a lapse of time will not likely
     prevent the offer of the evidence unless the time lapse is
     excessive. Finally, the trial court must assure that the probative
     value of the evidence is not outweighed by its potential
     prejudicial impact upon the trier of fact. To do so, the court
     must balance the potential prejudicial impact of the evidence
     with such factors as the degree of similarity established between
     the incidents of criminal conduct, the Commonwealth’s need to
     present evidence under the common plan exception, and the
     ability of the trial court to caution the jury concerning the proper
     use of such evidence by them in their deliberations.

Tyson, supra at 358–59 (citation omitted).       “[M]uch more is demanded

than the mere repeated commission of crimes of the same class, such as




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repeated burglaries or theft.” Commonwealth v. Semenza, 127 A.3d 1, 8

(Pa. Super. 2015) (citation omitted).

         “[Our Supreme] Court has also recognized the res gestae exception,

permitting the admission of evidence of other crimes or bad acts to tell ‘the

complete story.’”      Commonwealth v. Hairston, 84 A.3d 657, 665 (Pa.

2014), cert. denied, 135 S.Ct. 164 (2014) (citation omitted).              “Such

evidence may be admitted, however, only if the probative value of the

evidence outweighs its potential for unfair prejudice.”        Id. (citation and

internal quotation marks omitted). “A final requirement is that if evidence of

a prior criminal incident is to be admitted under [an] exception, it must be

determined by the court to be established by substantial evidence[.]”

Commonwealth v. Donahue, 549 A.2d 121, 127 (Pa. 1988) (citation and

emphasis omitted). “[B]efore the evidence is admitted at all, this factor of

the substantial or unconvincing quality of the proof should be weighed in the

balance.” Id. (citation omitted).

         Instantly, the trial court determined that the evidence at issue was not

admissible under the common plan or res gestae exception.             (See Trial

Court Opinion, 5/05/16, at 3-5).           The court further found that the

Commonwealth appeared to be advancing a criminal propensity argument

regarding Appellee, and that the proffered evidence regarding the 2005

Johnson purchases was unreliable. (See id. at 5-6). We agree with the trial

court.




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J-A04042-17



      Specifically, a review of the record demonstrates that any connection

between the 2005 and the 2011 firearms purchases is tenuous, and the

evidence does not establish any type of signature behavior on the part of

Appellee, or a common plan or scheme.               Although the Commonwealth

repeatedly claims that the “same individuals” and “same purchaser”

participated in each incident, (Commonwealth’s Brief, at 24-25 (emphasis

omitted); see id. at 22), this assertion is belied by the record, which reflects

that Barats, the purchaser of the firearms in 2011, is not implicated at all in

the Johnson purchases, which occurred six years earlier.

      Furthermore, the record supports the trial court’s conclusion that the

Commonwealth failed to present adequate evidence that the 2005 straw

purchases actually occurred. Johnson’s 2015 statement implicating Appellee

and Dawkins in those purchases directly conflicts with her earlier statement

that she purchased the firearms for her own use. Moreover, Johnson’s 2015

statement appears unreliable on its face, in that she readily admits that she

does not remember purchasing two of the firearms because she “was on

Oxys a lot at the time.” (Johnson Interview, 9/10/15, at 2). Although police

found a gun box linked to a 2005 Johnson purchase in Appellee’s home, they

did not recover firearms, and neither Appellee nor Dawkins were prosecuted

in connection with the 2005 purchases.

      In sum, we conclude that the trial court did not abuse its discretion in

declining   to   admit   the   prior   bad   acts   evidence   proffered   by   the

Commonwealth. See Sitler, supra at 163. At best, the Commonwealth has

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J-A04042-17



shown evidence of only “the mere repeated commission of crimes of the

same class,” which is insufficient to establish an exception to the general

rule barring prior bad acts evidence.        Semenza, supra at 8 (citation

omitted). The Commonwealth failed to demonstrate any type of signature

or distinctive criminal conduct on the part of Appellee, or establish “a close

factual nexus [between the two incidents] sufficient to demonstrate the

connective relevance of” the 2005 Johnson purchases to the instant case.

Ross, supra at 104; see also Tyson, supra at 358–59.           Therefore, the

Commonwealth’s issue on appeal does not merit relief.        Accordingly, we

affirm the order of the trial court.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/2017




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