                             [J-81-2016] [MO:Dougherty, J.]
                      IN THE SUPREME COURT OF PENNSYLVANIA
                                  EASTERN DISTRICT


COMMONWEALTH OF PENNSYLVANIA,                  :   No. 718 CAP
                                               :
                      Appellee                 :   Appeal from the Judgment of Sentence
                                               :   entered on 1/6/2015 in the Court of
                                               :   Common Pleas, Monroe County,
              v.                               :   Criminal Division at No. CP-45-CR-
                                               :   0000391-2008
                                               :
CHARLES RAY HICKS,                             :   ARGUED: September 13, 2016
                                               :
                      Appellant                :


                                  DISSENTING OPINION


JUSTICE WECHT                                            DECIDED: March 28, 2017

       Rule 404 of the Pennsylvania Rules of Evidence generally bars the use of prior

bad acts evidence to prove that a person acted in accordance with his previous

conduct. See Pa.R.E. 404. The party seeking admission of the evidence cannot use

those acts or behaviors to convey to the jury that the opposing party must have done

“X” because he has done “X” before, or many times before. Justice Donohue cogently

describes the prejudicial impact of admitting such evidence, and the manner in which it

diminishes the Commonwealth’s obligation to satisfy its constitutional burden of proof

beyond a reasonable doubt. See Diss. Op. at 1-2 (citing Shaffner v. Commonwealth, 72

Pa. 60, 65 (1872)).

       Rule 404 is challenging, and the consequences of its erroneous application are

significant. Basic human nature and rational thought tend to default toward the very

logic that the rule prohibits. It is natural and well-nigh inevitable that a juror considers a

person to be a drug dealer when told that the same person has dealt drugs multiple
times in the past, or that a juror will conclude that, if a person has assaulted women

before, he likely will do so again. Although we presume that jurors follow a trial judge’s

instructions, see Commonwealth v. Chmiel, 30 A.3d 1111, 1184 (Pa. 2011), it is difficult

to set aside opinions that arise naturally and to confine evidence of an inflammatory

nature to a purpose whose limitations conflict with intuitive thought processes. I have

no doubt that jurors across this Commonwealth are capable of rising to this challenge,

and that they do so on a daily basis in our courtrooms. This does not, however, obviate

the fact that putting aside such innate reactions is a daunting task for any person.

       Moreover, Rule 404’s exceptions are both numerous and broad. See Pa.R.E.

404(b)(2). This creates the obvious danger that the exceptions will devour the rule. If

courts do not adhere scrupulously to the terms and purposes of the rule, this danger

becomes reality.

       These concerns, as well as those highlighted by Justice Donohue, illuminate the

problems that can taint otherwise fair trials when Rule 404 is incorrectly applied.

Moreover, they underscore the requirement that prior bad acts evidence must be strictly

limited and admitted only when passed through the rigorous inquiry articulated skillfully

by Justice Donohue. The contested evidence in this case does not satisfy that inquiry.

For that reason, and in light of my concerns set forth above, I respectfully dissent from

the learned Majority’s holding that the prior bad acts evidence was admissible. I join in

the merits portion of Justice Donohue’s dissenting opinion.

       I also agree with Justice Donohue that Hicks is entitled to a new trial, albeit on

slightly different grounds.    Unlike Justice Donohue, I believe that the trial evidence

would have sufficed to render the trial court’s error harmless. The discovery of the

victim’s severed hands in Hicks’ walls was particularly compelling. Oddly enough, the

Commonwealth affirmatively has chosen to concede and forego this argument.




                              [J-81-2016] [MO: Dougherty, J.] - 2
Throughout this case, including at oral argument before this Court, the Commonwealth

has insisted that the prior bad acts evidence was essential to proving Hicks guilty of the

murder.    See Diss. Op. at 21-22 (setting forth each instance in which the

Commonwealth asserted the essentiality of the evidence).         From the outset of this

appeal, the Commonwealth has elected to concede that, if this Court deemed the

admission of the evidence erroneous, such error would not be harmless, inasmuch as

the Commonwealth viewed the evidence as necessary to prove Hicks’ guilt beyond a

reasonable doubt.1

      I confess my surprise at the Commonwealth’s position, because the discovery of

the victim’s hands buried in Hicks’ wall seems uniquely powerful evidence in and of

itself. Other parts of the victim’s dismembered body were found within close proximity

to Hicks’ residence. The police found blood on Hicks’ boots and on the passenger seat

of his vehicle. The victim’s DNA was located on a scrub brush found in Hicks’ home.

Moreover, fingerprints were recovered from garbage bags that also were found in his

home. The prints belonged to Hicks and the bags matched those that were used to

dispose of the victim’s severed body parts. If there was not a mountain of evidence,


1
       In this case, the Commonwealth has never invoked the harmless error doctrine.
Ordinarily, this might raise the question of whether the Commonwealth must invoke the
doctrine before we may apply it. Generally, I adhere to our precedential declaration that
“this Court may affirm a judgment based on harmless error even if such an argument is
not raised by the parties.” Commonwealth v. Allshouse, 36 A.3d 163, 182 (Pa. 2012).
However, there is apparent tension between that principle and the well-settled rule that
the “Commonwealth bears the burden of demonstrating harmless error.”
Commonwealth v. Chmiel, 889 A.2d 501, 521 (Pa. 2005). Although I believe that we
can apply the doctrine without prior invocation, it seems inconsistent to assign to a party
a burden of proof that is applicable only in appellate proceedings, while determining
simultaneously that the party has satisfied that burden without the party raising or
addressing the doctrine in any way. Nonetheless, in light of the Commonwealth’s
unequivocal abandonment of the harmless error claim here, any tension between these
principles can (and should) be resolved in another case.



                           [J-81-2016] [MO: Dougherty, J.] - 3
there was a formidable hill.       Although this evidence appears compelling,2 the

Commonwealth captains its own ship. And it has consistently if inscrutably maintained

that this evidence was not enough to convict Hicks without admission of the prior bad

acts.

        I would hold the Commonwealth to its litigation position, as I believe courts

should accept and enforce party admissions or concessions when reasonable.3 It is

particularly important to do so in a situation such as this, because the Commonwealth

investigated, charged, and prosecuted Hicks. Having prepared and undertaken the trial

of this case, the Commonwealth undoubtedly has a knowledge and understanding of its

many nuances far more intimate than I ever could obtain from my cold and detached

review of the paper record.

        Because the Commonwealth has conceded the harmless error inquiry, I would

remand the case for a new trial. Because the Majority holds otherwise, I respectfully

dissent.




2
       There was still more. For example, one forensic pathologist, Dr. Ross, opined
that numerous, violent injuries were inflicted upon the victim before her death, including
at least seventeen different impacts to her head and neck. Dr. Ross also determined
that the victim was strangled while still alive. These injuries were particularly relevant
because Hicks was the last person to be seen with the victim while she was alive.
3
       See generally Commonwealth v. Busanet, 54 A.3d 35, 59 (Pa. 2012) (rejecting
ineffective assistance of counsel claim, in part, because of the appellant’s concession of
a relevant legal point).



                           [J-81-2016] [MO: Dougherty, J.] - 4
