J-A04009-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWALTH OF PENNSYLVANIA,               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                          Appellee             :
                                               :
                     v.                        :
                                               :
    JESUS GARCIA,                              :
                                               :
                          Appellant            :   No. 2573 EDA 2018


        Appeal from the Judgment of Sentence Entered August 22, 2018
             in the Court of Common Pleas of Philadelphia County
                Criminal Division at No(s): CP-XX-XXXXXXX-2015

BEFORE:      PANELLA, P.J., STRASSBURGER, J.* and COLINS, J.*

CONCURRING MEMORANDUM BY STRASSBURGER, J.:FILED JUNE 08, 2020

        I concur with the conclusion that Appellant’s judgment of sentence

should be affirmed. However, I write separately to note my general discontent

with using the res gestae exception1 as a means of admitting otherwise

inadmissible evidence. See Majority at 8 n.4 (stating, had Appellant not

waived the issue, evidence of Appellant’s use of a cell phone to search


____________________________________________


1 As our Supreme Court has explained, “evidence of crimes, wrongs, or other
bad acts ‘may be admissible as res gestae when relevant to furnish the
complete story or context of events surrounding the crime.’” Commonwealth
v. Crispell, 193 A.3d 919, 936 (Pa. 2018), quoting Commonwealth v.
Weiss, 81 A.3d 767, 798 (Pa. 2013). The res gestate “exception applies to
prior bad acts ‘which are so clearly and inextricably mixed up with the history
of the guilty act itself as to form part of one chain of relevant circumstances,
and so could not be excluded on the presentation of the case before the jury
without the evidence being rendered thereby unintelligible.’” Commonwealth
v. Knoble, 188 A.3d 1199, 1205 (Pa. Super. 2018), quoting Commonwealth
v. Brown, 52 A.3d 320, 330-31 (Pa. Super. 2012).

* Retired Senior Judge assigned to the Superior Court.
J-A04009-20



pornographic websites was admissible as res gestae evidence under Pa.R.E.

404(b)).
     While the res gestae exception continues in full effect in this

Commonwealth, it is not without criticism. As our Supreme Court cogently

noted, “there is no ‘res gestae exception’ to the hearsay rule; the exception

so-called is in fact a catch-all exception that embraces several distinct, though

sometimes overlapping, exceptions.”       Commonwealth v. Blackwell, 494

A.2d 426, 430 (Pa. 1985). The Blackwell Court opined that the exception

      has been rightly condemned as “a Latin phrase to serve as a
      substitute for reasoning,” Morgan, A Suggested Classification of
      Utterances Admissible as Res Gestae, 31 Yale L.J. 229, 229
      (1922); as an expression that gives lawyers and judges “relief at
      a pinch,” Thayer, Bedingfield's Case, 15 Amer.L.Rev. 1, 10 (1881)
      Bedingfield's Case, 15 Amer.L.Rev. 1, 10 (1881); and as “a
      password for the admission of otherwise inadmissible evidence,”
      McCormick on Evidence 836 (Cleary ed. 1984).

Id. Because the res gestae exception can easily swallow the rule, I believe its

application should be used with restraint. I am not entirely convinced

Appellant’s use of a cell phone to search pornographic websites is a “crime,

wrong, or bad act” to allow it to fall within the res gestae exception in the first

place. However, because I agree Appellant has waived the issue, and agree

with the Majority’s analysis of Appellant’s remaining issues, I respectfully

concur.




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