J-S15008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JONATHON HAMLETTE,

                            Appellant                No. 1790 EDA 2014


         Appeal from the Judgment of Sentence Entered May 20, 2014
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0006120-2013


BEFORE: BENDER, P.J.E., OLSON, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                         FILED APRIL 13, 2016

        Appellant, Jonathon Hamlette, appeals from the judgment of sentence

of an aggregate term of life imprisonment without the possibility of parole,

imposed after a jury convicted him of second-degree murder and related

offenses. Appellant contends that the trial court abused its discretion when

it denied his Pa.R.Crim.P. 600 motion to dismiss, and when it granted the

Commonwealth’s motion to permit evidence of Appellant’s prior bad acts

under Pa.R.E. 404(b). After careful review, we vacate Appellant’s judgment

of sentence and remand for a new trial.

        The trial court summarized the evidence presented at Appellant’s trial,

as follows:

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S15008-16


           The evidence adduced at trial established that on January
     24, 2010, the decedent, William Worthy, was stabbed twice,
     once in the heart, at the entrance to his residence, 2813 North
     Bambrey Street, at roughly 8:30[]am.

           In the early hours of January 24, 2010, Sharma Sanford
     was near the corner of 25th Street and Lehigh Avenue in search
     of drugs, namely crack-cocaine. There, [Appellant] approached
     Ms. Sanford asked her if she “was looking to get high.” The two
     proceeded to 2813 North Bambrey Street to purchase crack-
     cocaine. [Appellant] asked Ms. Sanford to purchase the drugs
     from William Worthy because, as told to Ms. Sanford, there had
     previously been an incident between [Appellant] and the
     decedent. Ms. Sanford was the only one to enter the residence,
     and she purchased the drugs from the decedent; [Appellant] and
     Ms. Sanford proceeded to a residence on Oakdale Street.
     [Appellant] told Ms. Sanford that the Oakdale Street residence
     was his home and, once they entered, they proceeded to walk
     through the living room toward the basement. In the basement,
     Ms. Sanford saw a single bed. Both proceeded to smoke the
     drugs which they had recently purchased. Ms. Sanford testified
     that she became uncomfortable and wanted to leave after
     smoking the drugs. Along with being in an unfamiliar place with
     a person whom she had just met, Ms. Sanford testified that her
     uneasiness was also rooted in the weapon, a knife, which
     [Appellant] had on a shelf near him. Upon leaving, Ms. Sanford
     saw [Appellant] take the knife from the shelf and place it in his
     back pocket. [Appellant] and Ms. Sanford left the Oakdale
     Street residence, headed to another residence on Bonsall Street,
     and then back to the decedent's residence at 2813 North
     Bambrey Street to smoke more drugs.

           When the two arrived, Ms. Sanford was once again the
     only one to enter the residence to purchase additional drugs.
     Mr. Worthy let Ms. Sanford in, took her to the second floor, and
     sold her the drugs. After Ms. Sanford purchased the singular
     bag which she and [Appellant] were going to share, Ms. Sanford
     removed a portion of the drugs from the baggie for herself.
     Within the residence were three people, William Worthy and two
     ladies, one of whom was asleep in another room. Shortly
     thereafter, there was a knock at the door and Ms. Sanford told
     Mr. Worthy that the person at the door was probably Johnny2
     and that he should let him in. Mr. Worthy went to the door and
     let [Appellant] in, and both men went to the second floor. When


                                   -2-
J-S15008-16


     [Appellant] was upstairs, Ms. Sanford gave [Appellant] the
     drugs.

                       ______________________
       2
        When they first met, [Appellant] told Ms. Sanford that his
       name was Johnny.

                       ______________________

            Ms. Sanford testified that [Appellant] remarked to Mr.
     Worthy that the amount of drugs in the bag was light and then
     asked Mr. Worthy if he would give [Appellant] more drugs. Mr.
     Worthy declined and, after the group smoked what they had in
     the second-floor room, [Appellant] asked to speak to Mr. Worthy
     privately downstairs. After a few minutes, Ms. Sanford heard
     tussling and went to the top of the stairs. Ms. Sanford testified
     that she saw Mr. Worthy struggling with someone, but she could
     not tell who the other person was. Ms. Sanford ran back into the
     second-floor room to grab the other two ladies. While she was
     in the second-floor room, Ms. Sanford heard Mr. Worthy yell out,
     “He stabbed me. He got me for three bags.”3 Ms. Sanford left
     the second-floor room and went downstairs to aid Mr. Worthy up
     the stairs. As Mr. Worthy was walking upstairs, he started
     removing his shirt. Once upstairs, Ms. Sanford saw a wound in
     Mr. Worthy’s chest which was “gushing out” blood. Ms. Sanford
     was questioned about both the statement she later gave to
     homicide detectives and her testimony at the preliminary
     hearing. On both occasions, Ms. Sanford said that the person
     tussling with Mr. Worthy was [Appellant]. According to Ms.
     Sanford, those two statements were wrong because she just
     assumed that it was [Appellant] tussling with Mr. Worthy
     because he was the last person speaking to Mr. Worthy at the
     door before Mr. Worthy was stabbed.4

                       ______________________
       3
         Jay Cunningham also testified. She was the [] third
       female at the residence. She testified that she heard Mr.
       Worthy scream out twice, “He stabbed me.” However, Ms.
       Cunningham failed to identify [Appellant] at a lineup and in
       court as the male who was at 2813 North Bambrey Street.
       4
         Dr. Edwin Lieberman testified as an expert in forensic
       pathology. Dr. Lieberman testified that the decedent,
       William Worthy, died of a stab wound to the chest.

                                   -3-
J-S15008-16


                        ______________________

        Davina Phillips, the lady who had previously been asleep in
     another room in the house, placed a call to 911. Officer Joseph
     Stallbaum was the first officer to respond to the scene. Officer
     Stallbaum approached the residence and saw Ms. Sanford and
     Ms. Phillips standing near the entrance to the residence. Mr.
     Stallbaum went to the second-floor room to survey Mr. Worthy's
     condition. Once medical support arrived, Mr. Stallbaum went
     downstairs to speak to both ladies. Ms. Sanford detailed to
     Officer Stallbaum [Appellant’s] clothing, name, and physical
     features. She also told him the address to which [Appellant] had
     probably fled; Officer Stallbaum then relayed this flash
     information to police dispatch and to the next officer arriving on
     the scene, Officer Eric Cohn. Officer Cohn went to the 2500
     block of West Oakdale Street to find [Appellant].          In the
     meantime, Officer Stallbaum secured the scene and waited for
     Officer Cohn to relay any results regarding his search for
     [Appellant]. After Officer Cohn surveyed the 2500 block of West
     Oakdale Street and did not find a person matching the
     description of [Appellant], Officer Cohn came back to 2813 North
     Bambrey Street to escort Ms. Sanford and Ms. Phillips to the
     Homicide Division.

        On the way to Homicide, Ms. Sanford told Officer Cohn that
     the suspect, whom she called Johnny, also was known to hang
     out at a property located at 2744 North Bonsall Street and that
     [Appellant] worked at a barbershop, called Ernie's Upper Cuts,
     which is located at 25th Street and Lehigh Avenue. The property
     on Bonsall Street is located just a few blocks from the crime
     scene.     Officer Cohn drove past the suspect's place of
     employment, a barbershop at 25th Street and Lehigh Avenue,
     and the 2744 North Bonsall Street property. Ms. Sanford did not
     see [Appellant] during this canvass. As a result, Officer Cohn
     took both ladies to Homicide.

        Officer Ryan Clement testified that he was patrolling on the
     morning in question in an adjoining district. With the flash
     information previously provided at the outset of his shift, Officer
     Clement noticed [Appellant] at a gas station located at the
     corner of Broad and Thompson Streets. Officer Clement rolled
     down his vehicle window and asked [Appellant] where he was
     coming from; [Appellant] responded that he was previously at
     his brother's house, located at 24th and Oakdale Streets. Based
     on this response, Officer Clement exited his vehicle and asked

                                    -4-
J-S15008-16


     [Appellant] if he had any identification; [Appellant] responded
     that he did not but stated to Officer Clement that his name was
     John, Johnny or Jonathon. Officer Clement called into his district
     dispatch to have someone contact the homicide detectives from
     the 39th district to determine whether the witness was available
     for a show-up.

        Officer Cohn and Detective Nordo transported Ms. Sanford to
     the 1700 block of 17th Street to see if she could identify
     [Appellant] as the perpetrator.          Ms. Sanford identified
     [Appellant] as the actor in the robbery-stabbing.

                                     …

            Officer Edward Fidler of the Crime Scene Unit testified
     regarding the evidence recovered at the crime scene. … Officer
     Fidler found blood both inside and outside 2813 North Bambrey
     street. Inside the property were droplets of blood spanning the
     distance from the area near the first floor door up to the second
     floor room. The blood found outside was located on the sidewalk
     up the block near the corner. Officer Fidler testified that the
     blood outside the residence appeared to be aspirated blood,
     meaning blood which had been spit up by someone on the
     sidewalk. According to Officer Fidler, the blood outside the
     residence contained saliva and air bubbles and was shaped in a
     manner to suggest that the blood had been projected, rather
     than dripped, to the ground.       All the blood samples were
     collected, placed on a property receipt and sent to the Forensic
     Laboratory for testing.

           Lynn Haimowitz testified as an expert in DNA analysis and
     forensic science. Ms. Haimowitz detailed the results of the
     report which analyzed three blood samples from within 2813
     North Bambrey Street and two samples outside - the first on the
     porch and the second on the sidewalk in front of 2805 North
     Bambrey Street. Comparing the DNA profiles developed from
     the blood against two buccal swabs from the decedent and
     [Appellant], two of the three samples within the residence were
     determined, to a reasonable degree of scientific certainty, to be
     that of the decedent. The third sample found inside 2813 North
     Bambrey Street resulted in no DNA. As for the two samples
     found outside the residence, both samples produced a partial
     DNA profile from the same unknown male, the person being
     neither the decedent nor [Appellant].



                                   -5-
J-S15008-16


Trial Court Opinion (TCO), 12/30/14, at 3-8 (citations to the record
omitted).

      Based on this evidence, the jury convicted Appellant of second-degree

murder and possessing an instrument of crime (PIC).            Appellant was

acquitted of first-degree murder.    On May 20, 2014, the court sentenced

Appellant to an aggregate term of life imprisonment, without the possibility

of parole. Appellant filed a timely notice of appeal, and also complied with

the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. The trial court subsequently filed a detailed Rule

1925(a) opinion. Herein, Appellant presents two issues for our review:

      [(1)] Did the [trial] court commit[] an abuse of discretion by
      denying Appellant’s Rule 600 motion to dismiss?

      [(2)] Did the [trial] court commit an abuse of discretion by
      granting the Commonwealth’s [Rule] 404(b) motion?

Appellant’s Brief at 3 (unnecessary capitalization omitted).

      Appellant first challenges the court’s denial of his pretrial, Rule 600

motion to dismiss the charges against him.       Our scope and standard of

review for such claims is well-settled:

      In evaluating Rule 600 issues, our standard of review of a trial
      court's decision is whether the trial court abused its discretion.
      Judicial discretion requires action in conformity with law, upon
      facts and circumstances judicially before the court, after hearing
      and due consideration. An abuse of discretion is not merely an
      error of judgment, but if in reaching a conclusion the law is
      overridden or misapplied or the judgment exercised is manifestly
      unreasonable, or the result of partiality, prejudice, bias, or ill
      will, as shown by the evidence or the record, discretion is
      abused.

      The proper scope of review ... is limited to the evidence on the
      record of the Rule 600 evidentiary hearing, and the findings of

                                     -6-
J-S15008-16


       the trial court. An appellate court must view the facts in the light
       most favorable to the prevailing party.

       Additionally, when considering the trial court's ruling, this Court
       is not permitted to ignore the dual purpose behind Rule 600.
       Rule 600 serves two equally important functions: (1) the
       protection of the accused's speedy trial rights, and (2) the
       protection of society.
       …

       So long as there has been no misconduct on the part of the
       Commonwealth in an effort to evade the fundamental speedy
       trial rights of an accused, Rule 600 must be construed in a
       manner consistent with society's right to punish and deter crime.
       In considering these matters ..., courts must carefully factor into
       the ultimate equation not only the prerogatives of the individual
       accused, but the collective right of the community to vigorous
       law enforcement as well.

Commonwealth v. Ramos, 936 A.2d 1097, 1100 (Pa. Super. 2007) (en

banc) (quoting Commonwealth v. Hunt, 858 A.2d 1234, 1238 (Pa. Super.

2004) (en banc)).

       Rule 600(A)(2)(a) requires that trial commence within 365 days of the

filing of the written complaint.1

           The mechanical run date is the date by which the trial
           must commence under [Rule 600]. It is calculated by
           adding 365 days (the time for commencing trial under
           [Rule 600]) to the date on which the criminal complaint is
           filed. As discussed herein, the mechanical run date can be
           modified or extended by adding to the date any periods of
           time in which delay is caused by the defendant. Once the
           mechanical run date is modified accordingly, it then
           becomes an adjusted run date.

____________________________________________


1
  Rule 600 was revised in 2012, and the current version of the rule became
effective on July 1, 2013, prior to Appellant’s filing of his pretrial motion to
dismiss.



                                           -7-
J-S15008-16


        If the defendant's trial commences prior to the adjusted run
        date, we need go no further.

Ramos, 936 A.2d at 1102 (internal citation and footnote omitted).

        Here, the Commonwealth filed two written criminal complaints against

Appellant; the first was filed on January 24, 2010, and withdrawn on

November 10, 2010.        A second criminal complaint was filed on May 17,

2013.     Appellant contends that the trial court abused its discretion by

calculating   the   mechanical    run   date   from   the   date   on   which   the

Commonwealth filed the second criminal complaint, rather than from the

date on which the first complaint was filed.

        [W]hen a trial court is faced with multiple identical criminal
        complaints, it must first determine whether the Commonwealth
        intended to evade Rule 600's timeliness requirements by
        withdrawing or having nolle prossed the charges. If the
        prosecution attempted to circumvent Rule 600, then the
        mechanical run date starts from the filing of the initial complaint,
        and the time between the dismissal of one complaint and the re-
        filing of the second complaint is counted against the
        Commonwealth. However, where the prosecution has not
        attempted to end run around the rule, and a competent
        authority properly dismissed the case, the court must next
        decide if the Commonwealth was duly diligent in its prosecution
        of the matter. Where the prosecution was diligent, the inquiry
        ends and the appropriate run date for purposes of Rule 600
        begins when the Commonwealth files the subsequent complaint.

Commonwealth v. Peterson, 19 A.3d 1131, 1141 (Pa. Super. 2011) (en

banc).

        Appellant does not argue that the Commonwealth withdrew the initial

complaint in an attempt to evade Rule 600. Instead, he contends that the

Commonwealth did not act with due diligence in prosecuting that complaint



                                        -8-
J-S15008-16



and, thus, the mechanical run date must commence from the filing of the

first complaint. After careful review, we disagree.

      The trial court set forth the pertinent procedural history underlying

Appellant’s Rule 600 claim, as follows:

      [T]he criminal complaint was filed the day of the murder,
      January 24th, 2010; after several continuances, the listing for
      November 10, 2010 was listed as “must be tried, no further
      continuances”; the Commonwealth withdrew the complaint on
      November 10, 2010; the Defendant was arrested again on April
      18, 2013; and the criminal complaint in this case was refiled on
      May 17, 2013.

      Detective Donald Marano (Homicide Unit) testified at the pretrial
      motion hearing.      Detective Marano was the lead detective
      handling the case…. On three separate dates - March 23, May
      19 and September 15 of 2010 - the Commonwealth requested
      continuances in the case because the only person capable of
      identifying [Appellant], Ms. Sanford, failed to appear.

             Detective Marano testified that Ms. Sanford failed to
      appear for the three listed court dates. According to Detective
      Marano, efforts to locate Ms. Sanford were sparse between
      March 23, 2010 and November 5, 2010, five days before the
      final listing. One of the few steps attempted by the police
      occurred on May 19, 2010, the second listed hearing date. On
      May 19, 2010, two detectives, Detectives Byard and Kane,
      traveled to a Sellersville, Bucks County address on record for Ms.
      Sanford to transport her to the proceeding and to serve a
      subpoena. When the detectives told Ms. Sanford that they
      would be transporting her to the preliminary hearing, Ms.
      Sanford refused allegedly because of the lack of a child seat in
      the police car for her infant child. Detective Marano testified at
      this hearing regarding the statements Ms. Sanford made to both
      detectives during this incident. The only other activity prior to
      November 5, 2010 was one other trip, made by Detective
      Marano at some point prior to the September 15th hearing,
      wherein he traveled to Sellersville to locate Ms. Sanford at a
      rehab in the area. Detective Marano did not know if Ms. Sanford
      ever received a subpoena for the September 15, 2010 hearing.



                                     -9-
J-S15008-16


           Roughly a month before the November 10, 2010 hearing,
     Detective Marano was informed by the prior Assistant District
     Attorney handling this case that Ms. Sanford had left her two
     messages on her voicemail. Both voicemail messages were
     played for the court.    In essence, the voicemail messages
     evidenced Ms. Sanford's intent to avoid testifying. The first
     voicemail message left by Ms. Sanford was not time-stamped,
     but it was referenced in Ms. Sanford's second voicemail. The
     second voicemail was time-stamped; the message was left on
     September 15, 2010.

             Five days before the last scheduled hearing, the Honorable
     Benjamin Lerner signed an order declaring Mr. [sic] Sanford a
     material witness. On November 8, 2010, Detective Marano
     placed phone calls with four separate numbers that were listed
     for Ms. Sanford. Detective Marano left messages at two of the
     numbers, but the calls were never returned. On November 9,
     2010, Detective Marano, along with Detective Kane, traveled to
     the Sellersville residence where the detectives had previously
     found Ms. Sanford. Interviews with residents and workers of the
     complex determined that Ms. Sanford had vacated her
     apartment five weeks prior. The detectives spoke with the
     apartment manager who informed them that Ms. Sanford was
     working at Doylestown Hospital, to the best of his knowledge.
     The detectives traveled to Doylestown Hospital; at the hospital[,]
     the detectives learned that Ms. Sanford had been offered
     employment, but failed to show up for one day of work. From
     there, the detectives traveled to the home belonging to Ms.
     Sanford's mother. The detectives also traveled to areas where
     Ms. Sanford was known to be when in the midst of her drug
     affliction.

           Detective Marano prepared wanted posters and had them
     sent to three separate districts. Detective Marano also flagged
     Ms. Sanford's criminal record, attached a[] [National Crime
     Information Center (NCIC)] person of interest flag to the missing
     person report for her in another database, and placed the
     wanted posters on two fugitive walls in the precinct waiting area.
     On November 10, 2010, the detectives again went to the
     residence of Ms. Sanford's mother to see if Ms. Sanford had
     shown up. All results were negative and the case was withdrawn
     on November 10, 2010.

          [On] or about April 9, 2013, Officer Alex Montanez noticed
     the wanted poster and spoke with one of the detectives from the

                                   - 10 -
J-S15008-16


     homicide unit; on April 12, 2013, Officer Montanez found Ms.
     Sanford and brought her in on the material witness warrant.

TCO at 8-11 (footnotes and citations to the record omitted).

     Appellant   avers   that   the    above-stated   facts   show   that   the

Commonwealth failed to take “even the most basic of steps” to locate Ms.

Sanford.   Appellant’s Brief at 22.     He discusses several “reasonable and

conventional means” that the Commonwealth could have undertaken to

secure Ms. Sanford’s presence at the preliminary hearing, such as those

done in Commonwealth v. Ingram, 591 A.2d 734 (Pa. Super. 1991), and

Commonwealth v. Laurie, 483 A.2d 890 (Pa. Super. 1984). In Ingram,

we held that the Commonwealth acted with due diligence where police

officers attempted to serve an arrest warrant at Ingram’s last known

address; talked with his mother about the possibility that Ingram had left

town; entered Ingram’s name into criminal databases; and had officers look

for Ingram while on daily patrol in his neighborhood. Id. at 737. In Laurie,

we concluded that police acted diligently in attempting to locate and arrest

Laurie where they immediately obtained an arrest warrant; contacted

numerous members of Laurie’s family; contacted utility companies when

discovering Laurie may have relocated to a different state; placed an

advertisement with a photograph and physical description of Laurie in local

newspapers where police officers thought he may be; and placed Laurie’s

name in the NCIC and the Philadelphia Crime Information Center (PCIC) to

“circulate throughout the country and state that [Laurie was] wanted in

Pennsylvania.” Id. at 891.

                                      - 11 -
J-S15008-16



      Appellant claims that the present case is distinguishable from Ingram

and Laurie. He stresses that here, the Commonwealth did not immediately

file a “material witness petition” for Ms. Sanford’s arrest; it did not contact

utility companies or the probation office to find Ms. Sanford; and it did not

have police visit “locations where [Ms. Sanford] might be found….”

Appellant’s Brief at 25, 26. Appellant asserts that instead of undertaking a

diligent search for Ms. Sanford, the Commonwealth relied “solely on the

serendipitous chance that [Ms. Sanford] would be apprehended as a result of

the addition of her name to computer [databases] and the hanging of a

wanted poster.” Id. at 26. Appellant also attacks the efforts made to locate

Ms. Sanford in the years between the withdrawal of the initial complaint and

the refiling of the second complaint.         He argues that, “[o]ther than

testimony that police visited specific addresses prior to the dismissal of the

first complaint, [the] Commonwealth presented no evidence that it did so

thereafter.”   Id.   Appellant maintains that “at its core, the evidence

presented at the Rule 600 hearing demonstrated that the Commonwealth did

not exercise due diligence.” Id.

      In response, the Commonwealth first emphasizes that in Ingram and

Laurie, the Commonwealth was searching for a criminal defendant, against

whom charges had been filed.       To the contrary, here, the Commonwealth

was attempting to find a witness.       As the Commonwealth explains, this

distinction undercuts Appellant’s argument that the Commonwealth should

have immediately obtained an arrest warrant for Ms. Sanford:

                                     - 12 -
J-S15008-16


      Ms. Sanford was a witness, not a criminal. She was the sole
      identifying witness; she did not stab the victim in the heart.
      That the police did not immediately obtain a material witness
      warrant and take her into custody at the first sign that she was
      reluctant to testify was eminently reasonable, and properly
      informed the trial court’s ruling. See [] Peterson, 19 A.3d [at]
      1137 … (due diligence requires the Commonwealth to “put forth
      reasonable effort,” not “perfect vigilance and punctilious care”).

Commonwealth’s Brief at 18. The Commonwealth also notes that placing an

advertisement in the newspaper with Ms. Sanford’s photograph and/or

identifying information may “have endangered Ms. Sanford, who was a

witness, not an accused….” Id. at 24 n.4.

      Additionally, the Commonwealth avers that the majority of Appellant’s

argument incorrectly focuses on what the Commonwealth should have done,

rather than what it did do. As this Court stated in Laurie, “the focus of our

inquiry is on what was done, not with what should have been done.”

Laurie, 483 A.2d at 892.     Upon examining the efforts undertaken by the

Commonwealth to locate Ms. Sanford and prosecute the initial criminal

complaint against Appellant, we ascertain no abuse of discretion in the trial

court’s conclusion that the Commonwealth acted with due diligence. In

particular, police officers went to Ms. Sanford’s home before the hearing on

May 19, 2010, yet Ms. Sanford refused to accompany them to court. Before

the next scheduled hearing date on September 15, 2010, a detective went to

a rehabilitation facility to find Ms. Sanford, but was unable to locate her. Ms.

Sanford called the district attorney and left two messages on or before the

September 15th hearing stating that she intended to avoid testifying.



                                     - 13 -
J-S15008-16



      Before the next scheduled hearing on November 10, 2010, the

Commonwealth increased its efforts to locate Ms. Sanford.          Namely, it

obtained a material witness warrant to take Ms. Sanders into custody; called

various phone numbers listed for her; visited Ms. Sanford’s residence and

her place of employment; interviewed residents and workers of her

apartment complex, as well as the apartment manager; spoke with Ms.

Sanford’s mother; and traveled to areas where Ms. Sanford was known to

frequent when she was using narcotics.       Additionally, police flagged Ms.

Sanford’s criminal record, put notices in criminal databases indicating that

she was a person of interest, and placed wanted posters in several precincts.

      Based on these facts, the trial court did not abuse its discretion in

concluding that the Commonwealth acted with due diligence in prosecuting

the initial criminal complaint against Appellant.        It was beyond the

Commonwealth’s control that Ms. Sanford was reluctant to testify and

evaded the Commonwealth’s attempts to locate her and secure her presence

at the preliminary hearing.     Because the Commonwealth exercised due

diligence before withdrawing the initial complaint, it is irrelevant whether it

acted diligently between that withdrawal and the refiling of the second

complaint.   See Peterson, 19 A.3d at 1141 (“Where the Commonwealth

exercises due diligence in prosecuting the original complaint, the time period

between the dismissal of the first complaint and the re-filing of the second

complaint is irrelevant for purposes of Rule 600 and the Commonwealth is

only required to re-file within the applicable statute of limitations.”).

                                    - 14 -
J-S15008-16



Accordingly, the trial court did not abuse its discretion by denying

Appellant’s Rule 600 motion to dismiss.

     Appellant next argues that the trial court erred by granting the

Commonwealth’s pretrial motion to admit evidence of his prior bad acts

under Pa.R.E. 404(b). That rule states, in pertinent part:

     (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 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.

Pa.R.E. 404(b)(1)-(2).

     It is well-settled that,

     [o]n appeals challenging an evidentiary ruling of the trial court,
     our standard of review is limited. A trial court's decision will not
     be reversed absent a clear abuse of discretion. Commonwealth
     v. Bishop, 936 A.2d 1136, 1143 (Pa. Super. 2007) (citing
     Commonwealth v. Hunzer, 868 A.2d 498 (Pa. Super. 2005)).
     “Abuse of discretion is not merely an error of judgment, but
     rather where the judgment is manifestly unreasonable or where
     the law is not applied or where the record shows that the action
     is a result of partiality, prejudice, bias or ill will.” Id.

Commonwealth v. Aikens, 990 A.2d 1181, 1184-85 (Pa. Super. 2010)

(quoting Commonwealth v. King, 959 A.2d 405, 411 (Pa. Super. 2008)).

     Additionally, in regard to the admissibility of prior bad acts evidence,

our Supreme Court has explained:


                                    - 15 -
J-S15008-16


      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.
      Commonwealth v. Powell, 598 Pa. 224, 956 A.2d 406, 419
      (2008).

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

      At the hearing on the Commonwealth’s motion in limine to introduce

prior bad acts evidence, the Commonwealth explained the two prior bad acts

it sought to introduce.   First, it described a knife attack by Appellant on

Jacob Bowling, which occurred approximately one month before the stabbing

of Mr. Worthy.      The Commonwealth explained that attack, and the

similarities between it and the present case, as follows:

      [The Commonwealth]: Mr. Bowling was staying at an apartment
      with a friend and [Appellant] and Mr. Bowling’s friend had a
      verbal argument and Mr. Bowling intervened and basically
      quashed the argument.

             At that point, [Appellant] left. Mr. Bowling woke up and he
      was being stabbed about his torso with a knife by [Appellant].
      He jumps up to try to get away from [Appellant] and [Appellant]
      stabs him in the heart. So Mr. Bowling is also stabbed in the
      heart. [Appellant] flees. Mr. Bowling convinces someone in the
      apartment to take him for help. … [H]e wakes up several days
      later in the hospital.

            So that’s the 2009 stabbing, exactly one month prior to
      the murder in this case.        Mr. Bowling’s injuries are also
      consistent with a small knife having been used.

            So for [the stabbing of Mr. Bowling in] 2009 and [the
      stabbing of Mr. Worthy in] 2010, we have an argument. The

                                    - 16 -
J-S15008-16


       victim intervenes on behalf of the person [Appellant] is arguing
       with. [Appellant] stabs the victim in the chest with a small knife.
       And in both cases it’s not just stabbing him in the chest, it’s
       stabbing the victim in the heart, thereby causing either death or
       serious bodily injury in both of those circumstances.

N.T. Hearing, 5/6/14, at 35-37.

       The second prior bad act the Commonwealth sought to introduce was

a knife attack on Sonya Cabiness that occurred approximately two years

after the stabbing of Mr. Worthy. The Commonwealth described that prior

bad act, and its similarities to the present case, as follows:

       [The Commonwealth:] With respect to the 2012 incident, the
       victim in that case is the then[-]girlfriend of [Appellant]. Her
       name is Sonya Cabiness…. [Appellant] and she have a verbal
       dispute. She attempts to walk away from him. He grabs her by
       the jacket and stabs her in the chest and then says, “That’s
       right, bitch, I will kill you.” He fled the scene and the victim
       called 911 and reported the crime.

             In that case also, a small knife was used to stab Ms.
       Cabiness in the chest. She did not sustain serious bodily injury
       as a result of that stabbing.

Id. at 37.2
____________________________________________


2
  We note that the testimony that Mr. Bowling and Ms. Cabiness gave at trial
differed from the Commonwealth’s description of their attacks in several key
regards. For instance, Ms. Cabiness did not testify that she was stabbed in
the chest or heart during Appellant’s assault; instead, she stated that when
Appellant attacked her, he swung his arm “towards the middle of her chest
slightly on the right side of her body” causing “a little slash” on her chest.
N.T. Trial, 5/16/14, at 102-103. Additionally, while Mr. Bowling testified that
the knife Appellant used was “[a] steak knife[,]” it was not a small knife as
the Commonwealth asserted. Id. at 123. Mr. Bowling stated that it was
“[o]ne of the long ones[,]” and with his hands approximated the knife to be
about 18 inches long. Id. While we point out the differences between the
Commonwealth’s offer of proof at the pretrial hearing, and the testimony
(Footnote Continued Next Page)


                                          - 17 -
J-S15008-16



      The Commonwealth argued before the trial court, and reiterates on

appeal, that the prior bad acts evidence involving Mr. Bowling and Ms.

Cabiness was admissible to prove Appellant’s identity as the individual who

stabbed Mr. Worthy, and also to show Appellant’s intent to kill Mr. Worthy.

The trial court agreed with the Commonwealth and granted its motion to

admit the testimony of Mr. Bowling and Ms. Cabiness for these purposes.

See N.T. Trial, 5/16/14, at 97 (trial court’s instructing jury that Mr.

Bowling’s and Ms. Cabiness’ testimony was being offered for the limited

purposes of showing that Appellant was “the person who stabbed William

Worthy and to prove … his intent in stabbing Mr. Worthy”).

      Appellant first argues that the trial court abused its discretion by

deciding to admit this prior bad acts evidence for the purpose of proving his

identity as the person who stabbed Mr. Worthy.       In Commonwealth v.

Shively, 424 A.2d 1257 (Pa. 1981), our Supreme Court held that evidence

of prior crimes may be admissible,
                       _______________________
(Footnote Continued)

actually presented at trial, Appellant did not object at trial or seek the
court’s reconsideration of the admissibility of the prior bad acts evidence in
light of Mr. Bowling’s and Ms. Cabiness’ trial testimony. He also does not
argue on appeal that the court should have precluded the prior bad acts
evidence upon hearing the testimony of these two witnesses at trial.
Instead, he frames his issue as a challenge to the court’s pretrial ruling on
the Commonwealth’s motion in limine, and only discusses the prior bad acts
evidence as summarized by the Commonwealth during the pretrial
proceeding.    Thus, we will limit our review to the record of the pretrial
hearing.




                                           - 18 -
J-S15008-16


      to prove other like crimes by the accused so nearly identical in
      method as to earmark them as the handiwork of the accused.
      Here, much more is demanded than the mere repeated
      commission of crimes of the same class, such as repeated
      burglaries or thefts. The device used must be so unusual and
      distinctive as to be like a signature.

Id. at 1259 (citation omitted).      “Required, therefore, is such a high

correlation in the details of the crimes that proof that a person committed

one of them makes it very unlikely that anyone else committed the others.”

Commonwealth v. Weakley, 972 A.2d 1182, 1189 (Pa. Super. 2009)

(internal quotation marks and citation omitted).

      In comparing the methods and circumstances of separate
      crimes, a court must necessarily look for similarities in a number
      of factors, including: (1) the manner in which the crimes were
      committed; (2) weapons used; (3) ostensible purpose of the
      crime; (4) location; and (5) type of victims. Remoteness in time
      between the crimes is also factored, although its probative value
      has been held inversely proportional to the degree of similarity
      between crimes.

Id. (internal citations omitted).

      In this case, the Commonwealth argued at the pretrial hearing that the

manner in which the crimes were committed was similar because all were “a

close personal encounter between [Appellant] and somebody following a

verbal altercation.”   N.T. Hearing, 5/6/14, at 38-39.   The Commonwealth

stressed that in all three cases, the weapon used was a knife. Id. at 39. In

regard to location, the Commonwealth argued that

      [i]n all of these cases, the incident happen[ed] either … inside …
      where the victim was staying or residing, or very close to the
      victim’s residence. [Ms.] Cabiness was stabbed just outside of
      her home. She was attempting to get away from [Appellant].
      She was stabbed on the street. Mr. Bowling and Mr. Worthy


                                    - 19 -
J-S15008-16


      were both stabbed … in the place where they were residing at
      the time.

Id. The Commonwealth also discussed the similarities between the victims

in each incident, stating that they all “share something in common, which is

they are people that challenged [Appellant] in some way during a verbal

altercation and [Appellant] responds by use of deadly force.” Id.

      While we agree with the Commonwealth that Appellant’s three

offenses do have some similarities, we cannot overlook the significant

differences in the stabbing attacks. First, the manner in which each attack

occurred varied. For instance, in Mr. Bowling’s stabbing, Appellant left after

the argument, and later returned to stab Mr. Bowling.       This is markedly

different from Appellant’s stabbing of Mr. Worthy and Ms. Cabiness in the

midst of altercations with them. Additionally, Mr. Bowling was stabbed while

he was sleeping, while Mr. Worthy and Ms. Cabiness were stabbed during

physical scuffles with Appellant.

      Further, as Appellant points out, the altercation between Appellant and

Mr. Worthy began over drugs, yet there was no indication that drugs were

involved in either of the other disputes. Instead, Appellant’s argument with

Ms. Cabiness involved a domestic issue, and Mr. Bowling was not even

arguing with Appellant at all – instead, he broke up a fight between

Appellant and a third-party.

      We also point out that the injuries sustained by Mr. Bowling and Mr.

Worthy were significantly different than the single, non-serious injury

inflicted upon Ms. Cabiness. While the trial court emphasized that all three

                                    - 20 -
J-S15008-16



victims were “stabbed in the chest by [a] knife[,]” Ms. Cabiness only

suffered one single superficial wound, while Mr. Worthy and Mr. Bowling

were stabbed at least twice and were both seriously wounded.

      In regard to the location of the three attacks, the Commonwealth’s

argument that the stabbings are similar because they occurred in, or near, a

residence of some sort is weak, at best. Ms. Cabiness was attacked on the

street, Mr. Bowling was stabbed in his friend’s apartment, and Mr. Worthy

was stabbed in his own home.         Moreover, as Appellant points out, the

incidents “took place in different areas across Philadelphia.”     Appellant’s

Brief at 37. Thus, the locations of Appellant’s attacks varied.

      There are also notable differences in the purposes of the three attacks.

The Commonwealth alleged that Appellant stabbed Mr. Worthy during the

course of a drug-related robbery.      See N.T. Trial, 5/13/14, at 139-140

(Commonwealth’s stating in opening remarks that Appellant killed Mr.

Worthy during a robbery).     Ms. Cabiness, however, was stabbed during a

domestic dispute and, apparently, Mr. Bowling was stabbed simply in

retaliation for his breaking up an altercation between Appellant and another

individual.   Thus, Appellant’s purposes for the stabbings were distinct –

robbery, domestic dispute, and retaliation.      Relatedly, his victims were

dissimilar; Ms. Cabiness was his girlfriend, Mr. Bowling was essentially an

acquaintance of Appellant, and Mr. Worthy was a drug dealer who sold

Appellant crack cocaine.




                                    - 21 -
J-S15008-16



      Finally, the remoteness in time between Appellant’s attack on Mr.

Bowling and Mr. Worthy, and his assault of Ms. Cabiness, was approximately

two years, which weighs in favor of excluding that prior bad act.

      In sum, the three attacks have significant differences. Namely, there

was a delay between Appellant’s argument in the presence of Mr. Bowling

and his attack on Mr. Bowling later that night.       In that case, Appellant

entered the apartment in which Mr. Bowling was staying, and stabbed Mr.

Bowling while he was sleeping. Appellant’s motive in that attack appeared

to be retaliation for Mr. Bowling’s involvement in Appellant’s altercation with

a third-party.     In Mr. Worthy’s attack a month later, Appellant was

attempting to rob Mr. Worthy, in Mr. Worthy’s own home, after a drug-sale

gone wrong.      Appellant argued with Mr. Worthy, the two men physically

scuffled, and Appellant stabbed Mr. Worthy in the midst of the altercation.

Two years later, Appellant had a domestic dispute with Ms. Cabiness on the

street and inflicted a single, non-serious knife wound to her chest.

      These substantial differences compel us to conclude that Appellant’s

attacks do not demonstrate “any particular distinctive pattern of behavior

by” Appellant.    Commonwealth v. Ross, 57 A.3d 85, 102 (Pa. Super.

2012). While to be sure, Appellant committed “crimes of the same class” by

stabbing each victim in the chest, our Supreme Court made clear in Shively

that “much more is demanded” for prior bad acts evidence to meet the

identity exception of Rule 404(b).    Shively, 424 A.2d at 1259; see also

Ross, 57 A.3d at 102 (concluding that the commission of several physical

                                     - 22 -
J-S15008-16



and/or sexual assaults, accompanied by the use of foreign objects, merely

demonstrated, at most, “the commission of crimes or conduct ‘of the same

general class[,]’” and were “far from satisfying the Shively standard of

being so “unusual and distinctive as to be like a signature”). Thus, the court

erred by admitting evidence of these prior bad acts for the purpose of

proving Appellant’s identity as the person who stabbed Mr. Worthy.

      Next, we must assess whether the prior bad acts evidence was

admissible to prove Appellant’s intent.       The Commonwealth argues that

because Appellant was charged with first-degree murder, which requires

proof of intent to kill, the court properly admitted the prior bad acts evidence

because “[t]he Bowling and Cabiness stabbings prove that [Appellant] did

not accidentally stab the victim in the heart, but that he could, where he

desired, intentionally plunge a short knife into the victim’s heart or refrain

from doing so.    The evidence therefore made it far more likely that he

intended to kill the victim when he stabbed him in the heart, and far less

likely that it was an unintended result.” Commonwealth’s Brief at 37.

      Appellant, however, contends that the prior bad acts evidence was

irrelevant to prove intent because: (1) he did not assert a defense of

accident, mistake, or lack of intent; and (2) the requisite intent to kill was

demonstrated by the fact that a deadly weapon was used on a vital part of

the victim’s body.   In support of his argument, Appellant relies on Ross,

where we rejected a similar argument as that made by the Commonwealth

herein.   Specifically, the Commonwealth in Ross contended “that because

                                     - 23 -
J-S15008-16



Ross was charged with first-degree murder, which requires intentional

conduct, that his state of mind was at issue.”         Id. at 101.   This Court

disagreed “that intent was at issue” in Ross, explaining:

       Intent is a mental state that can be inferred from conduct.
       Commonwealth v. Martinez, 301 Pa. Super. 121, 447 A.2d
       272, 274 (1982). Given the circumstances surrounding Miller’s
       murder, including the mutilation of the body, the use of duct
       tape, and the bite mark on her breast, there can be no question
       that this was an intentional killing. Ross’ only defense was that
       he was not the perpetrator, and he did not raise any defense of
       accident, mistake, or lack of required intent. Accordingly, prior
       bad acts testimony should not have been permitted with regard
       to intent.

Id. at 101 (footnote omitted).

       Here, as in Ross, Appellant claimed that he was not the person who

stabbed Mr. Worthy; he did not aver that he stabbed Mr. Worthy accidentally

or without the intent to kill.       Indeed, such an argument would have been

futile considering that Mr. Worthy was clearly stabbed with a deadly weapon

(a knife) in a vital part of his body (the heart), thereby allowing the jury to

infer that his attacker had the intent to kill.       See Commonwealth v.

Packard, 767 A.2d 1068, 1071 (Pa. Super. 2001) (stating “specific intent

[to kill] may reasonably be inferred from an accused’s use of a deadly

weapon on a vital part of the victim’s body”) (citation omitted). 3 Therefore,
____________________________________________


3
  In any event, even if the prior bad acts evidence was admissible to prove
intent, we would conclude that the prejudicial impact of that evidence
outweighed the minimal probative value it held, considering that it was
cumulative evidence of Appellant’s intent to kill.




                                          - 24 -
J-S15008-16



as we concluded in Ross, Appellant’s intent was not at issue in the present

case.    Consequently, the court erred by admitting evidence of Appellant’s

prior bad acts to demonstrate his intent to kill.

        In sum, we conclude that the trial court abused its discretion when it

determined that the prior bad acts evidence was admissible to prove

Appellant’s identity and/or intent. While we typically would go on to assess

whether     the    admission    of   this     evidence   was    harmless   error,   the

Commonwealth does not meaningfully develop any argument in that regard,

presumably because the circumstantial evidence against Appellant was not

exceptionally strong.          Accordingly, the Commonwealth has failed to

demonstrate that a new trial is not warranted.              See Commonwealth v.

Brooker, 103 A.3d 325, 332 (Pa. Super. 2014) (stating it is the

Commonwealth’s burden to establish that the error was harmless beyond a

reasonable doubt). Therefore, we reverse Appellant’s judgment of sentence

and remand for a new trial, where the prior bad acts evidence shall not be

admitted against Appellant.

        Judgment    of   sentence    reversed.       Case      remanded    for   further

proceedings. Jurisdiction relinquished.




                                            - 25 -
J-S15008-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2016




                          - 26 -
