J-A21008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

THAILA BANGURA,

                            Appellee                   No. 1379 EDA 2015


                  Appeal from the Order Entered April 16, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0005184-2014


BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                    FILED NOVEMBER 01, 2016

       The Commonwealth, as the appellant, appeals from the trial court’s

April 16, 2015 order denying its pretrial motion to admit ‘bad act’ evidence

of other criminal conduct by Appellee, Thaila Bangura.1 After careful review,

we affirm.

       The trial court explained the procedural history of this case, as follows:

             On May 22, 2014, following a formal arraignment, Thaila
       Bangura … was held for court on several charges: Robbery, 18
       Pa. C.S. §[]3701([a]1); Theft By Unlawful Taking, 18 Pa. C.S.
       §[]3921([a]); Receiving Stolen Property, 18 Pa. C.S.
       §[]3925([a]); Possession of an Instrument of Crime, 18 Pa. C.S.
       §[]907([a]); Simple Assault,        18 Pa. C.S. §[]2701([a]);
       Recklessly Endangering Another Person, 18 Pa. C.S. §[]2705;
       Carrying Firearms in Public in Philadelphia, 18 Pa. C.S. §[]6108;
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1
   The Commonwealth certified, in its notice of appeal, that the court’s
interlocutory order terminates or substantially handicaps its prosecution of
this case. See Pa.R.A.P. 311(d).
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      and, Firearms Not to Be Carried Without A License, 18 Pa. C.S. §
      [6106]([a])(1).

             On April 14, 2015, [the Commonwealth] filed a Motion in
      Limine to Admit Other Crimes Evidence. Subsequent to an April
      16,    2015,    hearing  thereon,   this  court  denied    [the
      Commonwealth’s] Motion.          On May 12, 2015, [the
      Commonwealth] filed a Motion for Reconsideration of this court’s
      April 16, 2015, ruling. On May 15, 2015, [the Commonwealth]
      timely filed an Interlocutory Appeal to the Superior Court of
      Pennsylvania …. Simultaneously therewith, [the Commonwealth]
      filed a Statement of Errors Complained of on Appeal pursuant to
      Pa.R.A.P. 1925(b). On July 17, 2015, this court denied [the
      Commonwealth’s] May 12, 2015, Motion for Reconsideration.

Trial Court Opinion (TCO), 12/8/15, at 1-2 (footnote omitted).

      The trial court also summarized the pertinent facts leading to

Bangura’s arrest, and the facts underlying the Commonwealth’s at-issue

motion in limine to admit ‘bad acts’ evidence, as follows:

      The Case Before the Court

            The record reveals the facts of [Bangura’s] matter
      currently before this court.      On March 11, 2014, around
      1:00[]a.m., [Matthew Brewer] was walking along Frankford
      Avenue in Philadelphia. It is alleged that [Bangura] approached
      [Brewer] from behind, pulled out a firearm, and ordered
      [Brewer] to turn and walk down McGee Avenue. As [Brewer]
      turned on to McGee Avenue, it is alleged that [Bangura] stepped
      in front of [Brewer], pointed the firearm at his face, and told
      [Brewer] to hand over his possessions.           [Brewer] gave
      [Bangura] his wallet and cell phone. It is also alleged that
      [Bangura] took [Brewer’s] headphones and bag. It is then
      alleged that [Bangura directed Brewer to run, upon which
      Brewer] ran northbound on Frankford Avenue and ultimately
      stopped at Cappy’s Bar, located at Frankford and Longshore
      Avenues in Philadelphia.      [Brewer] was able to flag down
      Philadelphia Police Officer … Krawczyk who was on routine patrol
      in the area. [Bangura] was not apprehended at this time.

           The next day, March 12, 2014, Officer Ward arrived at
      3356 Princeton Avenue in Philadelphia, in response to a citizen’s


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      report that a firearm was found in the driveway, in the front of a
      motor vehicle.      On March 13, 2014, [Brewer] identified
      [Bangura] in a photo array and also identified the firearm
      retrieved as the one allegedly used by [Bangura] in the robbery.

      Commonwealth’s April 14, 2015, Motion to Admit Other
      Crimes Evidence

            [The Commonwealth] sought to admit evidence of other
      crimes.    Specifically, approximately twenty-three (23) hours
      subsequent to the alleged crimes before this court, on the same
      day of March 11, 2014, at 11:50 p.m., in an unrelated incident,
      another complainant[, Patrick Dougherty,] was walking out of
      the same aforementioned Cappy’s Bar.          It is alleged that
      [Dougherty] noticed that he was being followed by [Bangura]
      and two (2) other men. It is alleged that [Bangura] and the two
      (2) men approached [Dougherty] at the 3300 block of Tyson
      Avenue in Philadelphia. It is further alleged that [Bangura]
      pointed a firearm at [Dougherty’s] face and told him to put all of
      his property on the ground. It is also alleged that a physical
      altercation ensued and that [Dougherty] was struck in the head
      with a firearm. Officers Biles and Devlin, who were undercover
      on an unrelated burglary detail, noticed the altercation on the
      street, and exited their police vehicle. The Officers ran after
      [Bangura] and the other two (2) men.               Officer Devlin
      apprehended one (1) of the other two (2) men.             Officers
      Chichearo and Lipscomb, who were in the nearby area,
      apprehended the other man. Officer Biles chased [Bangura] but
      did not catch him. Forty-five (45) minutes later, one (1) of the
      Officers who was involved in the initial investigation saw
      [Bangura] and realized that he fit the flash description that
      Officers Biles and Devlin had previously announced over the
      police radio. This Officer then contacted Officers Biles and
      Devlin. Officers Biles and Devlin eventually apprehended and
      arrested [Bangura] at 4400 Torresdale Avenue in Philadelphia.

Id. at 3-4 (citations to the record omitted).

      As stated supra, following a hearing on the Commonwealth’s motion in

limine to introduce evidence of Bangura’s assault of Dougherty, the court

ultimately   denied   the   Commonwealth’s      motion.    On   appeal,    the




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Commonwealth avers that the trial court erred by refusing to admit that

evidence.

      The admissibility of evidence is a matter for the discretion of the
      trial court and a ruling thereon will be reversed on appeal only
      upon a showing that the trial court committed an abuse of
      discretion. Commonwealth v. Malloy, 579 Pa. 425, 856 A.2d
      767, 775 (2004); Commonwealth v. Reid, 571 Pa. 1, 811 A.2d
      530, 550 (2002). “An abuse of discretion may not be found
      merely because an appellate court might have reached a
      different conclusion, but requires a result of manifest
      unreasonableness, or partiality, prejudice, bias, or ill-will, or
      such lack of support so as to be clearly erroneous.”
      Commonwealth v. Dillon, 592 Pa. 351, 925 A.2d 131, 136
      (2007) (citation omitted).

Commonwealth        v.   Sherwood,     982   A.2d   483,   495   (Pa.   2009).

Additionally, we recognize that:

      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).

Sherwood, 982 A.2d at 497 (one internal citation omitted).

      At the hearing on its motion, the Commonwealth argued that

evidence of Bangura’s assault on Mr. Dougherty was admissible “because it

provides the res gestae or completes the story.” N.T. Hearing, 4/16/15, at

12. To support its argument, the Commonwealth explained that a “similar



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firearm” was used in the Dougherty assault, and that “the firearm was

recovered within a half a block” of where officers pursued Bangura after

seeing him assaulting Mr. Dougherty. Id. at 10, 12. It also stressed that

Brewer later identified that gun as the one used by Bangura in robbing

Brewer. Id. at 11. The Commonwealth contended that presenting the jury

with all of these facts was necessary to provide the full story of Bangura’s

robbery of Brewer. On appeal, the Commonwealth reiterates this argument,

asserting that “[e]vidence of [Bangura’s] flight from the scene where he

attacked [] Dougherty, leading to his arrest, the discovery of the gun he

discarded and [] Brewer’s identification of both [Bangura] and his distinctive

gun was admissible as part of the chain or sequence of events which became

part of the history of the case and the natural development of the facts at

issue.” Commonwealth’s Brief at 11.

      Preliminarily, the record confirms that the trial court will permit the

Commonwealth to introduce evidence at trial concerning the following: the

third-party’s discovering the firearm and reporting it to police; Brewer’s

subsequent identification of the gun as the one used by Bangura in robbing

Brewer; and Brewer’s identification of Bangura from a photo array. See N.T.

Hearing, 4/16/15, at 32.      The Commonwealth will not be permitted to

introduce evidence relating to Bangura’s robbery/assault of Dougherty, or

his flight from police. Id. at 34, 35.

      The Commonwealth has not convinced us that the court’s ruling was

an abuse of discretion.      The Commonwealth essentially concedes that

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presenting evidence that Bangura robbed Dougherty would be too prejudicial

to Bangura; consequently, it seeks to only present evidence that officers saw

Bangura assaulting Dougherty.           See Commonwealth’s Brief at 14 (stating

that it “voluntarily excised the fact that the Dougherty incident was also a

robbery” and that it “excluded evidence of the robbery and offered evidence

of only the assault”).      However, we fail to see how the officers’ observing

Bangura, and two cohorts, assaulting Dougherty demonstrates the ‘history’

or ‘complete story’ of Bangura’s earlier, single-handed robbery of Brewer.2

The fact that Bangura allegedly robbed both Brewer and Dougherty, and

used the same firearm during those offenses, does not render Dougherty’s

subsequent assault a “part of the chain or sequence of events” that led to

Bangura’s prior attack. Commonwealth v. Lark, 543 A.2d 491, 497 (Pa.

1988) (describing the ‘res gestae’ or ‘history of the case’ exception to Rule

404(b)). Thus, the court did not abuse its discretion in concluding that the

evidence of Bangura’s robbery/assault of Dougherty was inadmissible.

       We acknowledge, however, that there is a subsidiary issue that we

must resolve. At the hearing on the motion in limine, the Commonwealth

asked if the court “would allow the fact that the officer simply observed
____________________________________________


2
   We note that although the Commonwealth maintains that a ‘similar’
firearm was used in both the Dougherty and Brewer incidents, nothing in the
record before us demonstrates that Dougherty gave a description of the gun,
or that he at any point identified the firearm recovered by officers on March
12, 2014, as the weapon Bangura used to strike him.




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[Appellant] on the 3300 block of Princeton Street, … in a certain pattern of

travel as the officers would describe, and then, ultimately, a day later a

firearm was recovered in that area.”    N.T. Hearing at 33.   Essentially, the

Commonwealth sought to admit evidence that the officers observed Bangura

in close proximity to where the gun was later located.

      We recognize that this specific evidence would be probative in tying

Bangura to the firearm. However, the Commonwealth has other, stronger

evidence linking Bangura to the firearm - namely, Brewer’s identification of

that unique firearm as being the one that Bangura used to rob him.       This

other evidence linking the gun to Bangura lessened the probative value of

the evidence that officers observed Bangura within half-a-block of where the

gun was found.     Ultimately, the trial court concluded that the prejudice

Bangura would suffer from admitting the evidence of his robbery/assault of

Dougherty, and his flight from police, outweighed the probative value of that

evidence.   The Commonwealth has failed to convince us that the court

abused its discretion in that regard. Accordingly, we affirm the court’s order

denying the Commonwealth’s pretrial motion to admit Bangura’s ‘bad acts’

evidence.

      Order affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/1/2016




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