J-S68039-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                     Appellee            :
                                         :
       v.                                :
                                         :
TYLER HEAGY,                             :
                                         :
                     Appellant           :     No.   692 MDA 2017

              Appeal from the Judgment of Sentence March 13, 2017
                  in the Court of Common Pleas of Berks County
                Criminal Division, at No. CP-06-CR-0005358-2015

BEFORE: LAZARUS, DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                FILED DECEMBER 08, 2017

      Tyler Heagy (Appellant) appeals from the judgment of sentence entered

on March 13, 2017, following his jury convictions for attempted murder,

aggravated assault, two counts of simple assault, and recklessly endangering

another person. Upon review, we vacate the special sentencing condition, and

affirm in all other respects.

      The trial court summarized the facts underlying Appellant’s conviction

as follows.

           At about 9:00 PM on September 26, 2015, Austin Myers …
      drove [Appellant], Kristine Haduck …, and Shamar to Fumo Bar &
      Lounge … in exchange for money. [Myers] was a work colleague
      of [Haduck] and Shamar, but did not know Appellant. After
      dropping his passengers off, he left the [b]ar and returned home.

           Several hours later, at around 12:00 AM, Shamar felt unwell
      and [Haduck] started to look for Appellant so all could return
      home. Around this time, [Haduck] called Myers to request a ride
      home. In furtherance of her efforts to find Appellant, [Haduck]


* Retired Senior Judge assigned to the Superior Court.
J-S68039-17


     went outside to look and started to talk with a group of smokers.
     It was clear to the group that [Haduck] was intoxicated at this
     time. When outside the [b]ar, [Haduck] started to engage in a
     casual conversation with Alan Santin, one of the smokers. Then
     Appellant came outside and spotted [Haduck] having this
     conversation. He became agitated and started to call [Haduck]
     names. Santin attempted to intervene …, but Appellant forcefully
     pushed him away and verbally accosted him. Appellant and
     [Haduck] then went back inside the bar. Santin followed and
     attempted to intervene. This time Appellant threatened Santin
     with physical violence and Santin retreated.

           Following this interaction, Appellant stormed off and walked
     down a road. [Haduck] followed Appellant down the road. Once
     she caught up with Appellant, she informed him that Myers would
     be arriving soon. With no additional word Appellant stood up and
     attacked [Haduck]. In the course of the first attack, he ripped at
     [Haduck’s] hair, punched her all over her body, and thrashed her
     to the ground. [Haduck] beseeched Appellant to stop his assault,
     but the assault continued until Myers arrived. During this initial
     assault, [Haduck] sustained many bruises, a broken foot, and
     bleeding from her scalp.

           Once Myers arrived, he asked Appellant what was going on,
     twice[;] Appellant did not respond. Appellant then reached out his
     hand, as if to shake Myers’ hand[;] instead he punched Myers in
     the back of his head, causing a headache. Myers then tried to
     deescalate the situation and it seemed for a bit as [if] Appellant
     was going to comply. Meanwhile, [Haduck] was attempting to flee.
     Noticing [Haduck’s] retreat, Appellant “bolted” towards [Haduck].

            After catching up with [Haduck], Appellant started to wrap
     his hands around [her] arms to restrain her. [Haduck] asserted
     that Appellant was hurting her. Appellant then said “[i]f I can’t
     have you, nobody can.” He then picked her up and flipped her
     over a road railing. Upon her landing, he dragged her to the pond,
     by her ankle, and threw her in[,] back first. Appellant followed her
     in and laid “full-body flat” on top of her. She could not breathe as
     this pinned her down and held her head fully underwater. At this
     point, Myers jumped down and intervened. He grabbed Appellant’s
     left ankle and started to pull and kept doing so until Appellant
     stood up. Appellant then started to intimidate Myers, but this
     permitted [Haduck] time to escape.



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            At the same time, an off-duty bouncer, … who was far larger
      than Appellant, arrived at the pond. He saw Appellant and
      [Haduck] in the water and yelled at Appellant to get off her.
      Appellant let go at this point and [Haduck] was able to escape.
      Then, mostly due to the bouncer[’]s imposing stature, he
      convinced Appellant to leave [Haduck] be and no further physical
      confrontations occurred. The police arrived at the scene at about
      2:04 AM. They observed that Appellant was wet, shirtless,
      agitated, and intoxicated. Appellant was then arrested.

Trial Court Opinion, 7/5/2017, at 2-4 (citations omitted).

      The Commonwealth filed a pre-trial motion in limine to introduce

evidence pursuant to Pa.R.E. 404(b). Consequently, the jury heard evidence

of the following prior incident.

      One late evening in March 2014, Appellant arrived at [Haduck’s]
      apartment intoxicated. He likely observed that another man was
      in the apartment. This man was the father of one of [Haduck’s]
      children and was there to care for the child, who[m] he was
      holding at the time. Appellant then started to kick at the door.
      [Haduck] threatened to call the police and then Appellant kicked
      in the door. He walked in screaming and asking “what the fuck’s
      going on?” In order to protect her child, [Haduck] stepped
      between him and the other man. Appellant pushed [her] down and
      into a bike. Then, he punched the other man in the face. After
      which, [Haduck] then called the police and Appellant left.

Id. at 4 (citations omitted).

      Having heard all of this evidence, a jury convicted Appellant of

attempted murder, aggravated assault, two counts of simple assault, and

recklessly endangering another person on March 1, 2017.        Appellant was

sentenced to an aggregate term of eight to twenty-two years of imprisonment

on March 13, 2017. As part of this sentence, the trial court imposed a special




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condition barring Appellant from contact with Haduck and her family, which

included Appellant’s biological daughter.

      Appellant filed a post-sentence motion for a new trial and modification

of his sentence, which the trial court denied on March 24, 2017. Appellant

timely filed a notice of appeal, and both Appellant and the trial court complied

with Pa.R.A.P. 1925.     Appellant presents two questions for this Court’s

consideration.

      A. Whether the trial court erred and abused its discretion in
         granting the Commonwealth motion in limine to introduce
         evidence pursuant to Pa.R.E. 404(b) regarding a prior bad act
         by Appellant as it was substantially more prejudicial than
         probative and more akin to propensity evidence that [sic] in
         establishing a common plan or scheme.

      B. Whether the trial court abused its discretion in barring
         Appellant from contact with his daughter, whom he shares with
         the victim, as part of a special sentencing condition prohibiting
         Appellant from contact with the victim or her family.

Appellant’s Brief at 7 (unnecessary capitalization and proposed answers

omitted).

      Appellant’s first issue challenges the admission of 404(b) evidence.

Specifically, Appellant alleges that the trial court erred in admitting evidence

related to the March 2014 incident.      The Commonwealth argued that this

evidence was admissible because it was part of a common scheme, and as

proof of motive, intent, malice, and ill-will toward the victim.

      We address this claim mindful of the following.

      The admission or exclusion of evidence is a matter vested in the
      trial court’s sound discretion, and we may reverse the court’s


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     ruling only upon a showing of a clear 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 an exercise
     of judgment that is manifestly unreasonable, or the result of bias,
     prejudice, ill-will or partiality, as shown by the evidence of record.
     Our scope of review is limited to an examination of the trial court’s
     stated reason for its decision.

Commonwealth v. Wattley, 880 A.2d 682, 685 (Pa. Super. 2005).

     Pa.R.E. 404(b) governs the admissibility of evidence of other crimes.

     (b) Other crimes, wrongs, or acts.

     (1) Evidence of other crimes, wrongs, or acts is not admissible to
     prove the character of a person in order to show action in
     conformity therewith.

     (2) 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.

     (3) Evidence of other crimes, wrongs, or acts proffered under
     subsection (b)(2) of this rule may be admitted in a criminal case
     only upon a showing that the probative value of the evidence
     outweighs its potential for prejudice.

Pa.R.E. 404 (b)(1)-(3). In discussing subsection (b)(2), our Supreme Court

permits admission of evidence which demonstrates a defendant’s criminal

tendencies by way of a common plan, scheme, or design.

     [While e]vidence of distinct crimes is inadmissible solely to
     demonstrate a defendant’s criminal tendencies[, s]uch evidence
     is admissible … to show a common plan, scheme or design
     embracing commission of multiple crimes, or to establish the
     identity of the perpetrator, so long as proof of one crime tends to
     prove the others. This will be true when there are shared
     similarities in the details of each crime.




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Commonwealth v. Robinson, 864 A.2d 460, 481 (Pa. 2004) (citations

omitted).

     In order for evidence of other criminal activity to be admissible to
     establish a common scheme, two conditions must be satisfied: (1)
     the probative value of the evidence must outweigh its potential
     for prejudice against the defendant, see Pa.R.E. 404(b)(3); and
     (2) a comparison of the crimes must establish a logical connection
     between them.

Commonwealth v. Arrington, 86 A.3d 831, 842 (Pa. 2014) (some citations

and quotation marks omitted).

     Here, the trial court stated its reasons for admitting the 404(b)

evidence.

            Instantly, the evidence of Appellant’s prior assault against
     [Haduck] was admissible to show motive, malice, intent and ill-
     will to commit attempted murder[, as well as a common plan or
     scheme]. The Commonwealth relied upon the evidence to
     establish that Appellant had a relationship with [Haduck] that
     could cascade into violence with no provocation. Further, the
     evidence was necessary to establish that only alcohol consumption
     and potential romantic rivals were required for Appellant to
     become consumed with rage and violently attack [Haduck]. The
     prior assault was particularly critical because it showed that
     Appellant would not act rationally in these situations. Instead, he
     would continue to escalate the situation until a third party
     intervened. Thus, drawing the inference that Appellant’s violent
     acts could, beyond a reasonable doubt, demonstrate that he had
     the motive, malice, intent and ill-will to kill [Haduck].

                                     ***

           At trial, the logical connection between Appellant’s prior bad
     act and the instant assault was apparent. First, both assaults were
     perpetrated against the same victim and arose out of Appellant’s
     feelings of possessive jealousy to that victim when she spoke to
     other men. Second, each assault started with Appellant being
     verbally belligerent and would steadily escalate to the point where
     he physically assaulted [the victim], as well as others, such as


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      Myers and Wagner, who could interfere. Third, intoxication played
      a significant role in both assaults, which demonstrated an
      enhanced inclination to control [the victim], his [intimate] partner,
      through harassment, violence, and intimidation. … Given the
      relationship between the two crimes this evidence falls well within
      the purview of 404(b)(2).

            Furthermore, in deciding admissibility of other acts, the trial
      court is obliged to balance the probative value of such evidence
      against its prejudicial impact. Instantly, this evidence, while
      prejudicial, is highly probative because the Commonwealth relied
      upon circumstantial evidence to demonstrate intent to kill.

Trial Court Opinion, 7/5/2017, at 9-10 (internal citations and quotation marks

omitted).

      We agree with the trial court’s reasoning and analysis that the evidence

of Appellant’s prior assault was properly admitted to show motive, malice,

intent, and ill-will, and as part of a common plan or scheme. See Arrington,

86 A.3d at 844 (holding evidence of defendant’s prior acts in past relationships

was admissible to establish a common plan or scheme under Pa.R.E.

404(b)(2), where in each instance Arrington “(1) monitored his girlfriend’s

daily activities; (2) resorted to violence when his partner wanted to end a

relationship or interacted with other men; (3) inflicted head or neck injuries

with his fist, a handgun, or an edged weapon; and (4) harmed or threatened

to harm members of his girlfriend’s family or male acquaintances that he

viewed as romantic rivals”). The probative value of this evidence outweighed




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its potential for prejudice against Appellant, and the trial court did not abuse

its discretion in admitting it.1

      Finally, Appellant argues that the trial court abused its discretion in

imposing a special sentencing condition prohibiting Appellant from contact

with Haduck’s family members, including Appellant’s biological daughter.

While Appellant presents this claim as a challenge to the discretionary aspects

of his sentence, Appellant’s issue challenges the legality of his sentence.

Commonwealth v. Coulverson, 34 A.3d 135, 143 n.1 (Pa. Super. 2011)

(holding where “claims raise the facial illegality of the sentence imposed, they

are not subject to the reach of Rule 2119 in any event and are entitled to

review as a matter of right”).

      Both the trial court and the Commonwealth concede that the trial court

lacked authority to impose the special condition, and that this portion of

Appellant’s sentence is illegal.    The condition prohibiting Appellant from

contact with his daughter was imposed as part of Appellant’s period of


1 Appellant alleges in his brief that a limiting instruction was not provided, but
only mentions this when arguing that the admission of the 404(b) evidence
could not be considered harmless error. Appellant’s Brief at 30. We note that
the trial transcript does not include the trial court’s opening or closing
instructions to the jury, and thus this Court is unable to verify whether the
trial court provided a limiting instruction regarding the 404(b) evidence.
Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (holding that
when an appellant “fails to conform to the requirements of Rule 1911, any
claims    that    cannot      be    resolved      in   the    absence    of    the
necessary transcript or transcripts must be deemed waived for the purpose of
appellate review”). However, because we find that the trial court did not err
in admitting the 404(b) evidence, we need not reach Appellant’s harmless
error sub-argument.


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incarceration, and was to be applied to any future parole.      However, the

Pennsylvania Board of Probation and Parole has exclusive authority in

determining conditions of parole for individuals sentenced to more than two

years of incarceration. 61 Pa.C.S. § 6132; Coulverson, 34 A.3d at 141-142.

As noted above, Appellant was sentenced to an aggregate term of eight to

twenty-two years of imprisonment.       Thus, any condition the trial court

attempted to impose on Appellant’s state parole was advisory only.

Commonwealth v. Mears, 972 A.2d 1210, 1212 (Pa. Super. 2009).

      Because the trial court lacked authority to impose a condition on

Appellant’s parole, the special condition barring Appellant from contact with

his daughter is without legal force and is vacated. Id.; Coulverson, 34 A.3d

at 142.   We agree with the trial court that remand is unnecessary as the

removal of this condition does not impact the sentencing scheme.

      Judgment of sentence vacated as to the special condition imposed.

Judgment of sentence affirmed in all other respects. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 10/10/2017




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