J-S37023-16


                            2016 PA Super 183

COMMONWEALTH OF PENNSYLVANIA,               IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                       Appellant

                  v.

GLAVIN JUSTAN IVY,

                       Appellee                  No. 1485 WDA 2015


           Appeal from the Order Entered September 10, 2015
             In the Court of Common Pleas of Mercer County
           Criminal Division at No(s): CP-43-CR-0001780-2014


COMMONWEALTH OF PENNSYLVANIA,               IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                       Appellee

                  v.

GLAVIN JUSTAN IVY,

                       Appellant                 No. 1575 WDA 2015


           Appeal from the Order Entered September 10, 2015
             In the Court of Common Pleas of Mercer County
           Criminal Division at No(s): CP-43-CR-0001780-2014


BEFORE: GANTMAN, P.J., SHOGAN and LAZARUS, JJ.

OPINION BY SHOGAN, J.:                          FILED AUGUST 19, 2016

     Appellant, the Commonwealth of Pennsylvania, appeals from the

September 10, 2015 pretrial order precluding the admission of evidence in
J-S37023-16


the impending trial of Appellee, Glavin Justan Ivy, who has filed a cross

appeal.1     The order appealed granted in part and denied in part the

Commonwealth’s motion in limine seeking to introduce prior bad acts of

Appellee pursuant to Pa.R.E. 404(b).2 Following our careful review and for

the reasons that follow, we reverse in part and remand.             We quash

Appellee’s cross-appeal.

       In its opinion pursuant to Pa.R.A.P. 1925(a) (“Rule 1925 Opinion”), the

trial court summarized the facts and procedural history of the case as

follows:

            Glavin Justan Ivy ([“Appellee”]) has been charged with
       Rape, 18 Pa.C.S. § 3121(a)(1), Kidnapping, 18 Pa.C.S.
       § 2901(a)(3), and Aggravated Assault, 18 Pa.C.S. § 2702(a)(1)
       for an alleged violent sexual assault incident that occurred

____________________________________________


1
   The Commonwealth filed the initial appeal, and Appellee filed a cross
appeal. On November 19, 2015, this Court, sua sponte, consolidated the
appeals and directed the parties to proceed in accordance with Pa.R.A.P.
2136. For ease of disposition, we reference the Commonwealth as the
appellant and the defendant as Appellee.
2
    The Commonwealth may appeal an interlocutory order precluding
evidence when it provides a certification with its notice of appeal that the
order     terminates     or   substantially    handicaps     its   prosecution.
Commonwealth v. Whitlock, 69 A.3d 635, 636 n.2 (Pa. Super. 2013)
(citing Pa.R.A.P. 311(d)). Moreover, the Commonwealth may appeal the
grant of a defense motion in limine which excludes Commonwealth evidence
and has the effect of substantially handicapping the prosecution.
Commonwealth v. Gordon, 673 A.2d 866 (Pa. Super. 1996). Here, the
trial court ruling excluded Commonwealth evidence, and the Commonwealth
has certified that the rulings’ effect substantially handicaps the prosecution.
Thus, the appeal is properly before this Court. Commonwealth v. Belani,
101 A.3d 1156, 1157 n.1 (Pa. Super. 2014).



                                           -2-
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       November 18, 2014 through November 19, 2014. The victim in
       this incident is [A.C.], age 30.

              On November 19, 2014, [A.C.] reported to the Sharon
       Police Department that she had met [Appellee] online using a
       dating service called “Plenty of Fish” approximately one month
       prior, at the end of October, 2014. The two of them began a
       relationship via texting, and [A.C.] and [Appellee] first met in
       person at [Appellee’s] apartment on November 7, 2014. After
       that date, [A.C.] and [Appellee] continued to spend their
       weekends together at [Appellee’s] apartment.

             On November 18, [2014, A.C.] received a number of
       messages via Facebook Instant Messenger[3] wherein [Appellee]
       “dumped” [A.C.] because [Appellee] believe[d A.C.] lied about
       when she had last seen another male.            Throughout the
       messages, [Appellee] calls [A.C.] a variety of derogatory names
       and expresses his hopes that she kills herself in a myriad of
       ways. [Appellee] also compares [A.C.] to his ex-girlfriend,
       [C.D.], by saying that they are “sooo alike” and “they are the
       same.”      Throughout these messages, [A.C.] continually
       apologizes for making [Appellee] upset, expresses her love for
       [Appellee], and pleads to still be able to see him. Ultimately,
       [A.C.] messages that she would like to go to [Appellee’s]
       apartment to collect the pillow she left there.

             [A.C.] arrived at [Appellee’s] apartment at approximately
       6:42 p.m., and [Appellee] simply opened the apartment door,
       threw the pillow out to [A.C.], and then shut the door. As [A.C.]
       walked away, [Appellee] then re-opened the apartment door,
       held out his arms as if indicating that he wanted a hug, and
       asked [A.C.] to come upstairs to his bedroom. Once in the
       bedroom, [Appellee] began questioning [A.C.] about all of her
       previous sexual partners. [Appellee] also began calling her a
       “stupid bitch,” among other names.

____________________________________________


3
  Instant Messenger “refers to a type of Internet service that enables users
to engage in real-time dialogue ‘by typing messages to one another that
appear almost immediately on the others’ computer screens.’”
Commonwealth v. Reed, 9 A.3d 1138, 1140 n.2 (Pa. 2010) (citing United
States v. Meek, 366 F.3d 705, 709 n.1 (9th Cir. 2004)).



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           At one point, [Appellee] motioned as if to kick [A.C.];
     [A.C.] dodged and attempted to get out of the room through the
     bedroom door. [Appellee] blocked her access to the door and
     told her that she was not going to leave. [Appellee] then pushed
     [A.C.] onto the bed with the palm of his hand and told her to sit
     against the wall, which she did. [Appellee], while still calling her
     names, then struck [A.C.] on the right side of the face using the
     back of his hand. He did so with enough force to turn her head
     and cause the left side of her face to strike part of the window.
     [Appellee] then backhanded her again in the nose. [Appellee]
     then grabbed [A.C.] by the throat with such force that he was
     able to pick her torso up off of the bed. [A.C.] was unable to
     breathe and could not remember if she lost consciousness,
     although she could recall begging [Appellee] to stop, but stated
     it was very hard to talk. [Appellee’s] use of force caused
     bruising on [A.C.’s] neck.

           When [Appellee] let [A.C.] go, he grabbed her hair with
     both hands and started to pull her hair. [A.C.] began to cry,
     which in turn made [Appellee] cry. He then began hugging
     [A.C.], saying[,] “you broke my heart, so I had to teach you a
     lesson not to lie to me again.” [A.C.] told [Appellee] several
     additional times that she wanted to leave. [Appellee] refused
     these requests, and [A.C.] again attempted to leave at one
     point, but [Appellee] jumped in front of the door and would not
     let her pass. For an unknown period of time, [Appellee] and
     [A.C.] laid in [Appellee] bed talking, and [Appellee] asked [A.C.]
     if she wanted to have sex. [A.C.] agreed to have sex, but only
     did so because she was afraid [Appellee] would assault her again
     or force himself on her if she refused. Afterwards, [A.C.] was
     permitted to use the restroom, but [Appellee] accompanied her
     the entire time.

           Ultimately, [Appellee] agreed to let [A.C.] leave at
     approximately 3:00 a.m. on November 19[, 2014,] so that she
     could go to work. Later that day, after [A.C.] discontinued all
     messaging with [Appellee, Appellee] messaged her on Facebook
     stating that he had recorded them having sex using his cellular
     phone and threatened to send the recording to everyone they
     knew. [A.C.] reported to police late on November 19[, 2014,]
     everything that happened. On November 20, [2014, Appellee]
     was taken into custody by Sharon police officers. [Appellee] was
     Mirandized, waived his Miranda rights, and made a statement to
     Lieutenant [Jeffrey] Wiscott of the Sharon Police Department. In

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     his statement, [Appellee] admitted to a disagreement between
     [Appellee] and [A.C.], and further admitted to having sexual
     intercourse, but attributed the bruising on [A.C.’s] neck to
     consensual “rough sex.”

           Also relevant to this Opinion is the relationship between
     [Appellee] and two prior women; [M.F.] and [C.D.]. Regarding
     [M.F.], she filed for and received a temporary and permanent
     restraining order against [Appellee] in 2013 in Morton County,
     North Dakota. In the sworn petition forming the basis for the
     restraining order, [M.F.] described several accounts of abuse
     that occurred during her relationship with [Appellee], stating
     that [Appellee] had been “hitting her hard on a daily basis.” She
     also explained that she was afraid to leave [Appellee] for fear
     that he would kill her, and she described several incidents where
     [Appellee] regularly beat her in the face, dragged her by her
     hair, hit her very hard, and bragged that he knew how to strike
     her without leaving marks.

            [M.F.] and [Appellee’s] abusive relationship culminated in
     a violent attack inside of [Appellee’s] vehicle on May 22, 2013.
     On that occasion, [Appellee] coaxed [M.F.] to get into a car with
     him by promising to drive her to a store in town. Instead of
     taking [M.F.] to the store, [Appellee] turned off onto a country
     road, began beating her while driving erratically at 90 miles per
     hour, stating that he was going to take her into the woods and
     “beat her up then kill [her],” that “no one would hear her
     scream,” and that “no one would find her.” [M.F.] escaped by
     slipping into the back seat, sticking her hand out of the window,
     and capturing the attention of a passing van. The driver of the
     van observed [Appellee] continuing to struggle with [M.F.] in the
     car.

           Police responded several minutes later, which caused
     [Appellee] to cease his attack. [M.F.] filed charges and received
     the above-mentioned restraining orders.           [Appellee] was
     convicted of Menacing, a Class A Misdemeanor, and Reckless
     Driving, a Class B Misdemeanor, in Morton County, North
     Dakota. During the course of the investigation, the Facebook
     account of [Appellee] was obtained, and it revealed that
     [Appellee] joined a group on Facebook called[, “]Physiognomy,”
     which is the study or art of identifying the personality and inner-
     character traits of another, simply by examining the physical
     features of a person’s face.

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            Regarding [C.D., C.D.] knew [Appellee] for four months
     before she began dating him on March 8, 2014. Shortly into the
     relationship, on March 13, 2014, there was a dialogue
     exchanged on Facebook Instant Messenger where [Appellee] and
     [C.D.] got into an argument because [Appellee] claimed that he
     was going to “re-wire [C.D.] for the better” because “he had the
     power.” [Appellee] also sent numerous messages during this
     exchange where he insulted [C.D.’s] intelligence and professed
     that [Appellee] is a genius who has a close connection with God.
     During the messages, [C.D.] (similar to [A.C.]) goes on to tell
     [Appellee] that she loves him and that she cares for him, trying
     to resolve the argument.

           On April 10, 2014, [Appellee] and [C.D.] went swing
     dancing in Ohio. On the drive home, [C.D.] was driving and
     [Appellee] was sitting in the front passenger seat. [Appellee]
     began to display jealousy over the men that [C.D.] danced with
     while swing dancing. [Appellee] then began to verbally berate
     [C.D.], calling her a “whore,” “slut,” and “bitch,” and [Appellee]
     threatened to ruin [C.D.’s] reputation by telling everyone [C.D.]
     knew that she was a “whore.” [Appellee] then grabbed the
     steering wheel of the vehicle and attempted to steer the car off
     the road and into the woods. [C.D.] was [able] to apply the
     brakes to avoid any collision. After the car came to a stop,
     [Appellee] slammed [C.D.’s] head against the window of the
     vehicle, and grabbed [C.D.’s] knife, which she kept on her
     person for protection. [C.D.] eventually disarmed [Appellee], did
     not call the police, and ultimately continued her relationship with
     [Appellee].

            On the drive home, [C.D.] used her cell phone to record
     the conversation immediately after the assault, wherein
     [Appellee] and [C.D.] discussed the event, and [Appellee] made
     several concessions that he had hurt [C.D.]. The incident was
     also discussed via text messages the following day, wherein
     [Appellee] made reference to the incident by telling [C.D.] that
     he “was poisoned” and “a snake made him do it.” On the same
     day on Facebook Instant Messenger, [Appellee] further
     expressed to [C.D.] that “this has been the saddest day of my
     life.” Ultimately, as a result of the incident, [C.D.] made a
     medical appointment with a chiropractor because her rib became
     dislocated during her struggle with [Appellee].




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            Over the next month, there were approximately six or
      seven occasions between April 10, 2014 and May 9, 2014, where
      [Appellee] would lock [C.D.] in his room, refuse to let her leave,
      take away her keys and phone, and even barricade the door.
      When this occurred, [Appellee] would physically abuse [C.D.] by
      punching her; slapping her; choking her; refusing her food and
      water; drugging her; threatening to kill her, her sister, and
      family; threatening to burn down her house; and otherwise
      refusing to let her leave until she had sexual intercourse with
      him. There were also instances where [Appellee] would drag
      [C.D.] by her hair while he was physically assaulting her, and
      [Appellee] claimed to put spyware in [C.D.’s] computer and a
      GPS tracker on her phone so that he could “watch her” and
      “keep track of her.” Similar to the situation with [A.C.], if [C.D.]
      had to use the bathroom, [Appellee] would accompany her.

            As a result of [Appellee’s] constant abuse, [C.D.] was in
      fear for her safety if she refused [Appellee’s] request for sex.
      She received a temporary and permanent Protection from Abuse
      Order against [Appellee] in Mercer County, Pennsylvania. This
      Order was violated twice by [Appellee]: once when he compelled
      [A.C.] to contact [C.D.] on [Appellee’s] behalf around
      November 15, 2015, and once when [Appellee] called [C.D.’s]
      place of work over 50 times in a day. The calling incident also
      led to a Harassment conviction for [Appellee]. As a result of
      [A.C.] communicating with [C.D.] in November of 2014, [A.C.]
      learned of the prior instances of abuse between [Appellee] and
      [C.D.], including the fact that [Appellee] had locked [C.D.] in his
      apartment at times.

Rule 1925 Opinion, 11/13/15, at 2–8 (footnote omitted).

      On June 26, 2015, Appellee filed a motion in limine “for Exclusion of

Evidence at Jury Trial,” which the trial court granted in part and denied in

part on July 31, 2015. Also on June 26, 2015, Appellee filed a motion “to

Offer Evidence of the Complainant’s Past Consensual Sexual Conduct and

Non-Sexual Conduct with Defendant,” which the trial court granted on

July 6, 2015. Neither of these orders is involved in this appeal.


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     The Commonwealth on June 26, 2015, filed a Motion and Intent to

Introduce Evidence of Other Crimes Pursuant to Pa.R.E. 404(b)(2) (“Rule

404(b) Motion”). In pertinent part, that motion stated as follows:

     97. In the instant case, the Commonwealth is seeking to use
     the following prior bad acts of [Appellee] to show a common plan
     scheme and design, intent and knowledge of criminal
     wrongdoing, and the chain or sequence of events showing the
     complete history of the case:

           (a) Testimony and supporting evidence from [C.D.]
           describing verbal, physical, and sexual abuse she
           encountered at the hands of [Appellee] during their
           two-month relationship.       Supporting evidence
           includes:

                 i.    Facebook    Instant    Messenger
                 correspondence   and    text  message
                 correspondence between [C.D.] and
                 [Appellee] between March, 2014 and
                 May, 2014.

                 ii.   An    audio     recording     of   a
                 conversation    between      [C.D.]    and
                 [Appellee] on April 11, 2014, in the state
                 of Ohio.

                 [iii.] Medical records from [C.D.’s]
                 chiropractor    reflecting   dates    of
                 appointments wherein she had her rib
                 treated, which corresponds with dates of
                 physical abuse: April 11, 2014 and April
                 22, 2014.

           (b) A certified copy of [C.D.’s] Protection From
           Abuse Order granted on May 20, 2014.

           (c) Certified copies of [Appellee’s] two violations of
           [C.D.’s] Protection From Abuse Order, which reflect
           convictions on August 13, 2014 and March 26, 2015.




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           (d) A certified copy of [M.F.’s] Temporary Disorderly
           Conduct Restraining Order granted in Morton County,
           North Dakota, on May 24, 2013, and a photographed
           copy taken by [C.D.].

           (e) A certified copy of [M.F.’s] Permanent Disorderly
           Conduct Restraining Order granted in Morton County,
           North Dakota, on June 3, 2013.

           (f) A certified copy of the sworn petition and
           contents therein drafted by [M.F.] on May 24, 2013,
           used to obtain her restraining order, and the
           photographed copy taken by [C.D.].

           (g) A certified copy of [Appellee’s] Menacing and
           Reckless Driving conviction from July 1, 2013.

           (h) A certified copy of [A.C.’s] Protection From
           Abuse Order granted on December 16, 2014.

           (i) A certified copy of [Appellee’s] violation of
           [A.C.’s] Protection From Abuse order, reflecting a
           conviction on January 14, 2015.

           (j) A certified copy of [Appellee’s] Harassment
           conviction from October 14, 2014.

Rule 404(b) Motion, 6/26/15, at 22–23 (footnote omitted).

      On July 31, 2015, the trial court granted the Commonwealth’s Rule

404(b) Motion in part and denied it in part (“Commonwealth’s July 31, 2015

Order”). Specifically, the trial court denied admission of certified copies of

multiple orders against Appellee that were obtained pursuant to the




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Protection from Abuse (“PFA”) Act, 23 Pa.C.S. §§ 6101–6122 (“PFA Act”),4

and certified copies of Appellee’s violations of those PFA orders, while

permitting    witness     testimony     about      the   bases   of   the   PFA   orders.

Commonwealth’s July 31, 2015 Order. The trial court’s order stated in full,

as follows:

       AND NOW, this 31st day of July, 2015, upon consideration of the
       Commonwealth’s Motion and Notice of Intent to Introduce
       Evidence of Other Crimes Pursuant to Pa.R.E. 404(b)(2), IT IS
       HEREBY ORDERED AS FOLLOWS:

                 1) Regarding the testimony and supporting
                    evidence from [C.D.] describing verbal,
                    physical, and sexual abuse she encountered at
                    the hands of [Appellee], the Commonwealth’s
                    motion is GRANTED. The Commonwealth may
                    introduce the evidence listed in paragraphs
                    97(a)(i)    through     97(a)(iii)  of    the
                    aforementioned motion.

                 2) Regarding the certified copy of [C.D.’s]
                    Protection from Abuse Order granted on May
                    20, 2014, as well as certified copies of
                    [Appellee’s]   two  violations  of   [C.D.’s]
                    Protection    from   Abuse     Order,    the
                    Commonwealth’s motion is DENIED.

                 3) Regarding a certified copy of [M.F.’s]
                    Temporary Disorderly Conduct Restraining
                    Order, the certified copy of [M.F.’s] Permanent
                    Disorderly Conduct Restraining Order, and a
                    certified copy of the sworn petition and
                    contents therein drafted by [M.F.], all relating
                    to incidents happening in North Dakota in May
____________________________________________


4
  The purpose of the PFA Act is to protect victims of domestic violence from
the perpetrators of that abuse. Commonwealth v. Ferko-Fox v. Fox, 68
A.3d 917, 921 (Pa. Super. 2013).



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                  of 2013,     the   Commonwealth’s      motion    is
                  DENIED.

               4) Regarding a certified copy of [Appellee’s]
                  Menacing and Reckless Driving conviction from
                  July 1, 2013 in Ohio, the Commonwealth’s
                  motion is DENIED.

               5) Regarding a certified copy of [A.C.’s]
                  Protection    from     Abuse     Order,    granted
                  December 16, 2014, as well as a certified copy
                  of [Appellee’s] violation of this Order, reflecting
                  a conviction on January 14, 2015, the
                  Commonwealth’s motion is DENIED.

               6) Regarding a certified copy of [Appellee’s]
                  Harassment conviction from October 14, 2014,
                  the Commonwealth’s motion is DENIED.

Commonwealth’s July 31, 2015 Order, at unnumbered 1–2.

      For purposes of clarity, we summarize the effect of that order:

  •   Regarding A.C., the victim in this case, the trial court denied:

      o A certified copy of her PFA order against Appellee and Appellee’s
        violation of that order.

  •   Regarding C.D.:

      o The trial court denied:

            A certified copy of her PFA order against Appellee;

            Copies of Appellee’s two violations of that order;

            Appellee’s past convictions for Menacing and Reckless Driving
            from July 1, 2013 in Ohio;

            Appellee’s past conviction for Harassment from October 14,
            2014.

      o The trial court permitted:



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             Testimony from C.D.;

             Facebook and text messages between C.D., A.C., and Appellee;

             An audio recording of a conversation between C.D. and Appellee;

             C.D.’s medical records from a chiropractor appointment following
             an altercation between C.D. and Appellee.

   •   Regarding M.F., the trial court denied:

       o Admission of certified copies of two restraining orders against
         Appellee;

       o A certified copy of a petition by M.F. in support of those orders.

On August 18, 2015, the trial court filed an opinion.

       On August 27, 2015, the Commonwealth filed a “Motion to Reconsider

Court’s Order Dated July 31, 2015 and Opinion in Support of Order.”            In

response, on August 31, 2015, the trial court granted reconsideration and

revoked the Commonwealth’s July 31, 2015 Order.           Order, 8/31/15.     On

September 10, 2015, the trial court reinstated the Commonwealth’s July 31,

2015 Order verbatim, and it is from that order that the Commonwealth

appeals and Appellee purports to cross-appeal.          Order, 9/10/15.       The

Commonwealth timely filed a notice of appeal on September 25, 2015. On

October 8, 2015, Appellee filed a cross-appeal from the September 10, 2015

order.




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       In its brief, the Commonwealth raises the following issues for our

review:5

       1. Whether a certified copy of a PFA order and a certified [copy]
       of a violation thereof, sought and obtained by [A.C.], was
       properly admissible pursuant to Pa.R.E. 404(b)?

       2. Whether a certified copy of a Protection From Abuse (PFA)
       Order and certified copies of two violations thereof, sought and
       obtained by [C.D.], and/or testimony relating to the PFA Order
       and violations, was properly admissible pursuant to Pa.R.E.
       404(b)?

       3. Whether certified copies of Restraining Orders sought and
       obtained against [Appellee] by [M.F.], and a certified copy of the
       petition and contents that served as the basis for those Orders,
       was properly admissible pursuant to Pa.R.E. 404(b), and as an
       exception to the hearsay rule?

Commonwealth’s Brief at 5.              In his brief, Appellee responds to the

Commonwealth’s issues and raises the following single issue in his cross-

appeal:
     Whether the trial court abused its discretion in failing to exclude
     from trial evidence of alleged bad acts of Appellee allegedly
     made against a different complainant because there was no
     common scheme or plan established and the evidence of bad
     acts was improper character evidence which was unfairly
     prejudicial to Appellee’s presumption of innocence at trial?

Appellee’s Brief at 6.

       Our standard of review of the denial or grant of a motion in limine is

well settled:

____________________________________________


5
  We have renumbered the issues set forth in the Commonwealth’s brief to
comport with the order that the Commonwealth addresses them in its
argument.



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     When ruling on a trial court’s decision to grant or deny a motion
     in limine, we apply an evidentiary abuse of discretion standard of
     review. The admission of evidence is committed to the sound
     discretion of the trial court, and a trial court’s ruling regarding
     the admission of evidence will not be disturbed on appeal unless
     that ruling reflects manifest unreasonableness, or partiality,
     prejudice, bias, or ill-will, or such lack of support to be clearly
     erroneous.

Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pa. Super. 2010).

     As noted, the Commonwealth assails the exclusions from evidence as

described in the trial court’s September 10, 2015 order.    We first address

whether the trial court erred or abused its discretion in denying the

Commonwealth’s presentation of certified copies of both A.C.’s PFA order

against Appellee and his violation of that order.          In ruling on the

Commonwealth’s motion in limine, the trial court considered Pa.R.E. 403 and

404. Those rules provide as follows:

  Rule 403. Excluding Relevant Evidence for Prejudice, Confusion,
                 Waste of Time, or Other Reasons

     The court may exclude relevant evidence if its probative value is
     outweighed by a danger of one or more of the following: unfair
     prejudice, confusing the issues, misleading the jury, undue
     delay, wasting time, or needlessly presenting cumulative
     evidence.

Pa.R.E. 403. Pa.R.E. 404(b) provides, in pertinent part:

         Rule 404. Character Evidence; Crimes or Other Acts

                              * * *
     (b) Crimes, Wrongs or Other Acts.

     (1) Prohibited Uses. Evidence of a crime, wrong, or other act is
     not admissible to prove a person’s character in order to show


                                   - 14 -
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      that on a particular occasion the person acted in accordance with
      the character.

      (2) Permitted Uses.       This evidence may be admissible for
      another purpose, such as proving motive, opportunity, intent,
      preparation, plan, knowledge, identity, absence of mistake, or
      lack of accident. In a criminal case this evidence is admissible
      only if the probative value of the evidence outweighs its potential
      for unfair prejudice.

      (3) Notice in a Criminal Case. In a criminal case the prosecutor
      must provide reasonable notice in advance of trial, or during trial
      if the court excuses pretrial notice on good cause shown, of the
      general nature of any such evidence the prosecutor intends to
      introduce at trial.

Pa.R.E. 404(b)(1–3).

      The Commonwealth argues that the certified copies of A.C.’s PFA order

and Appellee’s subsequent violation thereof should be admitted under the

res gestae exception to Pa.R.E. 404(b) and to show Appellee’s consciousness

of guilt. Commonwealth’s Brief at 12. The trial court denied admission of

the PFA order and its violation by Appellee but acquiesced in permitting the

Commonwealth to establish their factual bases through witness testimony.

Rule 1925 Opinion, 11/13/15, at 13–14.

      The Commonwealth asserts that there is no case law supporting the

trial court’s decision to preclude the actual orders and maintains that Pa.R.E.

404(b)    jurisprudence    should   apply    to   permit    their   admission.

Commonwealth’s Brief at 12. Appellee responds that the trial court properly

concluded that the prejudicial effect of the PFA order and the PFA-violation

order outweighed their probative value. Appellee’s Brief at 12.


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     While evidence of prior bad acts is not admissible to show criminal

propensity, evidence of other crimes may be admissible if it is relevant to

show some other legitimate purpose. Commonwealth v. Tyson, 119 A.3d

353, 358 (Pa. Super. 2015). An exception to Rule 404(b) exists that permits

the admission of evidence where it became part of the history of the case

and formed part of the natural development of facts. Commonwealth v.

Solano, 129 A.3d 1156, 1178 (Pa. 2015).              This exception is commonly

referred to as the res gestae exception. Id. Where evidence of prior bad

acts is admitted, the defendant is entitled to a jury instruction that the

evidence   is   admissible   only   for   a    limited   purpose.   Id.   (quoting

Commonwealth v. Hutchinson, 811 A.2d 556, 561 (2002)).

     Evidence of prior bad acts may also be introduced to prove

consciousness of guilt, i.e., that the defendant was aware of his wrongdoing.

Commonwealth v. Pestinikas, 617 A.2d 1339, 1348 (Pa. Super. 1992).

Our Supreme Court has stated that PFA petitions are admissible and relevant

to demonstrate the continual nature of abuse and to show the defendant’s

motive, malice, intent, and ill-will toward the victim.       Commonwealth v.

Drumheller, 808 A.2d 893, 905 (Pa. 2002).

     In support of its argument that copies of A.C.’s PFA order and

Appellee’s violation thereof are admissible to prove Appellee’s consciousness

of guilt, the Commonwealth relies upon Commonwealth v. Flamer, 53

A.3d 82 (Pa. Super. 2012). Commonwealth’s Brief at 13. In Flamer, the


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defendant was arrested for murder, and the prosecution intended to call a

witness who was aware of the defendant’s murder plot. Flamer, 53 A.3d at

84. The witness was killed three months before the start of trial, and the

prosecution successfully sought to introduce evidence that the defendant

conspired with a third party to kill the witness. Id. at 86. This evidence was

admitted to show the history of the case and to prove the guilty conscience

of the defendant.   Id. at 87.   Herein, the Commonwealth avers that “[i]f

evidence of a defendant’s having conspired to kill a key witness against him

in a different murder case is admissible to prove consciousness of guilt,

then . . . [Appellee’s] violation of a PFA order in an attempt to persuade A.C.

not to pursue the charges against him should also be admissible.”

Commonwealth’s Brief at 19.

      We agree with the Commonwealth that A.C.’s PFA order against

Appellee is admissible. As the victim in this case, A.C.’s PFA order against

Appellee is important to establish the history of A.C.’s relationship with

Appellee and to show that Appellee was aware of his guilt. We concur with

the Commonwealth that there is a dearth of legal precedent that permits

testimony regarding a PFA order and its violation but simultaneously

excludes the actual PFA order and its violation. Significantly, Appellee has

not cited any case law in support of the trial court’s decision. Evidence of

prior abuse between a defendant and an abused victim is generally




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admissible to establish motive, intent, malice, or ill-will. Commonwealth v.

Jackson, 900 A.2d 936, 940 (Pa. Super. 2006).

     We also agree with the Commonwealth that the probative value of

A.C.’s PFA order and evidence of its violation outweighed any prejudicial

effect to Appellee. Our Supreme Court has reiterated that “the trial court is

not required to sanitize the trial to eliminate all unpleasant facts from the

jury’s consideration where those facts are relevant to the issues at hand and

form part of the history and natural development of the events and offenses

for which the defendant is charged.” Commonwealth v. Hairston, 84 A.3d

657, 666 (Pa. 2014) (quoting Commonwealth v. Lark, 543 A.2d 491, 501

(Pa. 1988)).

     We observe that all evidence of prior bad acts typically is prejudicial.

In this case, however, it is not unduly so. Our review of the record reveals

that A.C. was expected to testify about the horrific night on November 18,

2014, when Appellee locked her in his bedroom, forced her to have sex, and

choked and physically assaulted her. Rule 1925 Opinion, 11/13/15, at 3–4.

The next day, A.C. reported Appellee’s assault to the police.      Id. at 4.

Shortly thereafter, A.C. sought a PFA order against Appellee, and the trial

court granted it on December 16, 2014. Rule 404(b) Motion, 6/26/15, at 9.

     After engaging a third party to instruct A.C. to withdraw the criminal

charges she filed against him and/or refuse to appear at the preliminary

hearing, Appellee was convicted of violating the December 16, 2014 PFA


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order on January 14, 2015.     Id.   The trial court readily asserted that this

evidence “could have been admissible under the theories advanced by the

Commonwealth” but excluded it for being unfairly prejudicial.       Rule 1925

Opinion, 11/13/15, at 9.    The trial court wholly failed to substantiate this

finding. The Commonwealth asserts, and we agree, that it is necessary for

the jury to know exactly what that PFA order stated and the nature of

Appellee’s violation. Commonwealth’s Brief at 19. Similar to Flamer, both

acts prove the same state of mind: that both defendants were conscious of

their guilt.   The trial court’s failure to substantiate its finding of unfair

prejudice compels our conclusion that its order should be reversed.

      Next, we address the Commonwealth’s second and third arguments in

tandem. The Commonwealth contends that the trial court erred in excluding

certified copies of 1) C.D.’s PFA order against Appellee and its subsequent

violation, and 2) M.F.’s restraining orders against Appellee and a sworn

petition by M.F.     Commonwealth’s Brief at 20.       Most significantly, the

Commonwealth maintains that these documents should be permitted by the

common-plan-scheme-and-design exception to Rule 404(b), as well as to

prove forcible compulsion.       Commonwealth’s Brief at 21, 23.           The

Commonwealth contends, and we agree, that this evidence is especially

necessary to corroborate the victim’s allegations in a case involving sexual

assault, prove similarities between the cases, and to rebut Appellee’s




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contention that his sexual assault of A.C. actually was consensual sex.

Commonwealth’s Brief at 26.

      The Commonwealth also avers that C.D.’s PFA order and its violation

as well as M.F.’s restraining orders should be admitted to establish the

history of the instant case. The Commonwealth posits that these orders are

necessary to establish the history of the case because Appellee directed A.C.

to contact C.D., in violation of C.D.’s PFA order against Appellee.     Rule

404(b) Motion, 6/26/15, at 2.   Appellee responds that the orders have no

probative value and merely show Appellee’s bad characteristics. Appellee’s

Brief at 15.

      Evidence of prior bad acts may be admitted to establish the “existence

of a common scheme, [establish] an individual’s motive, intent, or plan, or

[identify] a criminal defendant as the perpetrator of the offense charged.”

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

conditions must be satisfied to admit prior-crimes evidence to establish a

common scheme: (1) the probative value of the evidence must outweigh its

potential for prejudice against the defendant and (2) “a comparison of the

crimes must establish a logical connection between them.”       Id. (quoting

Commonwealth v. Miller, 664 A.2d 1310, 1318 (Pa. 1995)).

      The Commonwealth relies on Commonwealth v. Elliot, 700 A.2d

1243 (Pa. 1997), to support its assertion that the evidence of prior bad acts

is necessary to prove “significant similarities” among C.D., M.F., A.C., and


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Appellee’s actions.   Commonwealth’s Brief at 26. In Elliot, the defendant

was convicted of murdering a young female in an acquaintance’s apartment

after sexually assaulting her. Elliot, 700 A.2d at 1246. At the defendant’s

trial, the prosecution called three prior victims to testify that the defendant

had attacked them around the same time on different evenings, when

leaving the same club, and he had assaulted them with similar acts of

violence and sexual assault. Id. at 1247. The defendant appealed, claiming

that the trial court abused its discretion by improperly admitting this

evidence.   Id. at 1250.    Our Supreme Court held that evidence of the

defendant’s past sexual assaults was admissible and that the evidence was

more probative than prejudicial. Id.

      In the instant case, the trial court excluded the evidence relating to

C.D. and M.F. for being unfairly prejudicial. However, it did not substantiate

its conclusion or explain its reasoning. Rule 1925 Opinion, 11/13/15, at 9.

The evidence of prior bad acts in this case “did not seek to inflame the jury’s

sensibilities with references to matters other than the legal proposition

relevant to the case.”   Commonwealth v. Antidormi, 84 A.3d 736, 751

(Pa. Super. 2014). Rather, the Commonwealth’s evidence sought directly to

“complete the story of the crime on trial by proving its immediate context of

happenings near in time and place.” Commonwealth v. Brown, 52 A.3d

320, 326 (Pa. Super. 2012).




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     Most convincingly, the excluded evidence is admissible under the

common-plan-scheme-or-design exception to Rule 404(b).              The trial court

admitted that the evidence in the case displayed a strong common plan,

scheme, and design, as evidenced by the following:

            The Commonwealth correctly argued in its Motion that
     there is a common scheme, plan, or design in [Appellee’s]
     actions/methodology. There are many similarities between the
     incidents of abuse among [M.F., C.D., and A.C.], the current
     victim. These similarities include the following facts: all the
     victims were Caucasian, natural brunettes in their twenties or
     early thirties; [Appellee] began breaking each woman down in
     the relationship via verbal assaults and the degradation of the
     victims’ intelligence; [Appellee] displayed extreme jealousy
     towards [A.C.’s and C.D.’s] former boyfriends, which was often a
     triggering point for physical violence; [Appellee] displayed
     controlling behavior by recording the victims and taking over
     their phones; [Appellee’s] interest in Physiognomy, where he
     trained himself to identify submissive victims; the way
     [Appellee] isolated the victims and performed similar physical
     assaults on them (including pulling their long hair); [Appellee’s]
     invasion of the victims’ privacy for guarding them as they used
     the restroom; and the similar responses of the abuse by [A.C.
     and C.D.] (in apologizing to [Appellee] and trying to work things
     out), along with [Appellee’s] statement that the two are very
     alike. When these facts are viewed in totality, as this Court was
     required to do in deciding the Commonwealth’s [m]otion, it was
     evident that there is a strong plan and design in [Appellee’s]
     predatory actions and that he tends to abuse similar victims in
     similar ways.

Rule 1925 Opinion, 11/13/15, at 13 (emphasis added).                     Compare

Commonwealth v. O’Brien, 836 A.2d 966 (Pa. Super. 2003 (two prior

sexual assaults on minor boys admissible under common-scheme-or-plan

exception   in   trial   relating   to   assault   on   third   minor   boy);   and

Commonwealth v. Aikens, 990 A.2d 1181 (Pa. Super. 2010) (fact pattern


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J-S37023-16


of prior assault was markedly similar such that evidence was admissible

under common-scheme-design-or-plan exception and probative value of

evidence outweighed its prejudicial impact).

       In the instant case, while the trial court permitted testimony about

and supporting the PFA and restraining orders, it concluded that their

introduction would “serve merely to convince the jury that judges have

found [Appellee] to be a ‘bad guy.’” Rule 1925 Opinion, 11/13/15, at 14.

The trial court erred.       While finding that the testimony about Appellee’s

actions against C.D. and M.F. provide “sufficient evidence to establish the

common scheme, plan, or design of [Appellee’s] prior bad acts,” id. at 15,

the trial court concluded that “the orders themselves could not be introduced

due to the risk of excessive prejudice to [Appellee].”       Id.   Once again,

because the trial court entirely failed to substantiate this conclusion in any

manner, it cannot be sustained.6

       Appellee has filed a cross-appeal from that part of the September 10,

2015 order that permitted evidence of C.D.’s PFA order and M.F.’s
____________________________________________


6
     The Commonwealth has withdrawn its contention regarding the trial
court’s denial of M.F.’s sworn petition. Commonwealth’s Brief at 34. In
addition, the Commonwealth has not asserted any argument regarding the
trial court’s denial of Appellee’s menacing-and-reckless-driving conviction in
North Dakota [mislabeled Ohio by the trial court] dated July 1, 2013, or
Appellee’s harassment conviction of October 14, 2014, in its statement of
questions. Thus, those issues are waived. Commonwealth v. Samuel,
102 A.3d 1001, 1003–1004 (Pa. Super. 2014) (failure to raise issue in
statement of questions involved on appeal waives issue) (citing Pa.R.A.P.
2116(a)).



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restraining orders against Appellee.   Before addressing Appellee’s issue in

his cross-appeal, however, we must determine whether this Court has

jurisdiction. The “authority of an appellate court to conduct review of a pre-

trial order is a jurisdictional matter.” Commonwealth v. Jones, 826 A.2d

900, 903 (Pa. Super. 2003) (en banc) (citing Commonwealth v. Rosario,

615 A.2d 740, 742 (Pa. Super. 1992)). This Court may consider the issue of

jurisdiction sua sponte. Commonwealth v. Yarris, 731 A.2d 581, 587 (Pa.

1999).

      Appellee, in his statement of jurisdiction in his brief, asserts that

jurisdiction “is conferred on the Superior Court by Pa.R.A.P. 511 (relating to

Cross Appeals) and Pa.R.A.P. 513 (relating to Consolidation of Multiples

Appeals).” Appellee’s Brief at 1–2. Rule 511, however, merely governs the

time for taking a cross-appeal, not the jurisdictional basis for filing one.

Rule 513 speaks only to the appellate court’s discretion to order appeals

from the same order to be argued together.

      Procedurally, for our purposes here, motions to suppress and in limine

are described as being essentially the same, as both may preclude

Commonwealth evidence and prevent the Commonwealth from prosecuting

its case. See, e.g., Jones, 826 A.2d at 903–907. Thus, in evaluating this

Court’s jurisdiction to entertain the cross-appeal, we find guidance from case

law involving appeals from pretrial orders that denied and/or granted

admission of evidence, whether by suppression or by virtue of Pa.R.E. 404.


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See Commonwealth v. Padilla, 923 A.2d 1189, 1193–1194 (Pa. Super.

2007) (citing Commonwealth v. Noll, 662 A.2d 1123, 1125 (Pa. Super.

1995) (“For purposes of appealability, the [trial] court’s ruling on a motion in

limine is exactly the same as a pre-trial suppression order.”)).

      Instantly, the trial court’s September 10, 2015 order is not a final

order because it did not dispose of all claims and all parties. Pa.R.A.P. 341

(b)(1). As noted supra, while the September 10, 2015 order is interlocutory

and does not end the entire case, the Commonwealth can appeal as of

right because it has certified that the order substantially handicapped its

prosecution. Whitlock, 69 A.3d at 636 n.2; Pa.R.A.P. 311(d) (in a criminal

case “the Commonwealth may take an appeal as of right from an order

that does not end the entire case where [it] certifies in the notice of appeal

that the order will terminate or substantially handicap the prosecution)

(emphases added).      By its language, this rule is applicable only to the

Commonwealth’s right to take an interlocutory appeal in the circumstances

defined.

      Appellee’s cross-appeal, however, is another matter. “The general rule

in criminal cases is that a defendant may appeal only from a final judgment

of sentence, and an appeal from any prior order or judgment will be

quashed.” Commonwealth v. McMurren, 945 A.2d 194, 195 (Pa. Super.

2008) (quoting Commonwealth v. Scott, 578 A.2d 933, 941 (Pa. Super.

1990)). “In this Commonwealth, an appeal may only be taken from: 1) a


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final order or one certified by the trial court as final; 2) an interlocutory

order as of right; 3) an interlocutory order by permission; or 4) a collateral

order.” Commonwealth v. Brister, 16 A.3d 530, 533 (Pa. Super. 2011).

We have already concluded that Appellee cannot satisfy the first and second

categories of appeals: the order appealed is not final, and Appellee, unlike

the Commonwealth, does not meet the requirements of Pa.R.A.P. 311.

Regarding the third category, an interlocutory appeal by permission, the trial

court never certified the order nor did Appellee file a petition seeking

permission to appeal. “Absent both jurisdictional prerequisites, we may not

grant [Appellee] permission to appeal.” Id. at 535. The final category, that

the September 10, 2015 order was appealable by Appellee as a collateral

order, likewise is not met.    Pa.R.A.P. 313.     “A collateral order is an order

separable from and collateral to the main cause of action where the right

involved is too important to be denied review and the question presented is

such that if review is postponed until final judgment in the case, the claim

will be irreparably lost.”    Pa.R.A.P. 313(b).    In this situation, if Appellee

ultimately is convicted, the trial court’s decision to admit the evidence can

be reviewed through Appellee’s right to a direct appeal; thus, the claim will

not be lost.   Contra Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pa.

Super. 2010) (review of trial court’s order denying the Commonwealth’s

Pa.R.E. 404(b) motion to preclude introduction of defense evidence would

be irreparably lost in the event of an acquittal because “constitutional


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prohibition against double jeopardy protects against a second prosecution for

the same offense after an acquittal”).

      We find additional guidance in Commonwealth v. Slaton, 556 A.2d

1343 (Pa. Super. 1989) (en banc). While there were three concurring and

dissenting opinions in that case, this Court was unanimous in its decision to

quash the defendant’s cross-appeal, where the Commonwealth filed an

appeal from a pretrial order granting in part and denying in part the

defendant’s motion to suppress evidence.         The Slaton Court examined

relevant precedent related to the Commonwealth’s and a defendant’s

appeals of pretrial orders.   For example, in Commonwealth v. Bosurgi,

190 A.2d 304 (Pa. 1963), our Supreme Court commented on the

Commonwealth’s versus a defendant’s right to appeal a pretrial suppression

ruling and stated:

      The right of appeal by a defendant stands upon an entirely
      different footing. The denial of a defendant’s motion for the
      suppression of evidence does not deprive a defendant of an
      appellate review of the validity of that order. At trial, the
      defendant still has full opportunity to object to the introduction
      into evidence of the allegedly improper evidence and, in the
      event of his conviction, he will then have an opportunity to
      secure an appellate evaluation of the propriety and admissibility
      of such evidence. Therefore, unlike the Commonwealth, an
      adverse pretrial disposition of a motion to suppress evidence
      does not deprive the defendant of his only opportunity for
      appellate review. Under such circumstances, the element of
      finality, which is the basis of appealability, is lacking in an order
      denying suppression and the defendant should have no right of
      appeal from such order.




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J-S37023-16


Id. at 308–309.    The Slaton Court also looked to Commonwealth v.

Fisher, 221 A.2d 115 (Pa. 1966), where our Supreme Court addressed the

issue of cross-appeals by criminal defendants when the Commonwealth

appealed part of the trial court’s disposition of a motion to suppress. The

Fisher Court held that a “defendant in a criminal case may not appeal from

a pretrial order denying his motion for the suppression of evidence.” Id. at

116 (citing Bosurgi, 190 A.2d 304).         Ultimately, on this issue, Slaton

concluded as follows:

           In light of the long-standing rule of American jurisprudence
     that, except in extraordinary circumstances, an appeal may be
     taken only from a final order of the court, and in recognition of
     our responsibility to preserve the sanctity of the appellate
     process, we hold that a criminal defendant may not appeal from
     an order of a suppression court even in the posture of a
     cross-appeal.

Slaton, at 1352–1353, affirmed, 608 A.2d 5 (Pa. 1992).

     Furthermore, in Commonwealth v. Strong, 825 A.2d 658 (Pa.

Super. 2003), this Court addressed the defendant’s appeal from, inter alia,

pretrial orders that admitted evidence of the defendant’s prior bad act. In

concluding that the issue was not properly before us, we noted that the trial

court’s pretrial order denying the defendant’s motion to preclude prior

crimes evidence was interlocutory and not appealable, “as it did not dispose

of all claims and all parties.” Id. at 667 (citing Pa.R.A.P. 341(b)(2)). We

explained that “[a]n interlocutory order, not appealable as of right under

Pa.R.A.P. 311, may be appealed only with permission of court,” id. at 668,


                                   - 28 -
J-S37023-16


and Strong’s “only recourse would have been to petition for permission to

appeal pursuant to Pa.R.A.P. 1311, which he failed to do.” Id. at 667 n.3.

Thus, we conclude that we lack jurisdiction to consider Appellee’s cross-

appeal of that portion of the September 10, 2015 order that permitted

evidence of C.D.’s PFA order and M.F.’s restraining orders against Appellee.

      For   the   foregoing     reasons,   we   reverse   that   portion   of   the

September 10, 2015 order excluding a certified copy of C.D.’s PFA order

granted May 20, 2014, certified copies of Appellee’s two violations of that

order, certified copies of M.F.’s temporary and permanent restraining orders,

a certified copy of A.C.’s PFA order granted December 16, 2014, and a

certified copy of Appellee’s violation of that order.      We quash Appellee’s

cross-appeal. We remand this matter to the common pleas court so that the

case may proceed.

      Order reversed in part; cross-appeal quashed; case remanded.

Jurisdiction is relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/19/2016




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