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                              2015 PA Super 103

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

MYRON COX,

                         Appellant                   No. 1831 WDA 2012


          Appeal from the Judgment of Sentence October 1, 2012
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0016050-2011


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., PANELLA,
        DONOHUE, SHOGAN, MUNDY, OLSON, and OTT, JJ.

DISSENTING OPINION BY SHOGAN, J.:                     FILED APRIL 29, 2015

      It is well settled that “[t]he admission of evidence is within the sound

discretion of the trial court, and will be reversed on appeal only upon a

showing that the trial court clearly abused its discretion.” Commonwealth

v. Miles, 846 A.2d 132, 136 (Pa. Super. 2004) (en banc) (citing

Commonwealth v. Lilliock, 740 A.2d 237 (Pa. Super. 1999)).            Abuse of

discretion requires a finding of misapplication of the law, a failure to apply

the law, or judgment by the trial court that exhibits bias, ill-will, prejudice,

partiality, or was manifestly unreasonable, as reflected by the record.

Commonwealth v. Montalvo, 986 A.2d 84, 94 (Pa. 2009).                Because I

disagree with my learned colleagues in the Majority that the trial court

abused its discretion in admitting into evidence facts surrounding a physical
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alteration, in which Appellant participated, that occurred several weeks prior

to the shooting that precipitated the instant charges, I respectfully dissent.

       A motion in limine is a procedure for obtaining a ruling on the

admissibility of evidence prior to or during trial, but before the evidence has

been offered.     Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa. Super.

2003). The basic requisite for the admissibility of any evidence in a case is

that it be competent and relevant. Id. A trial court should find evidence

admissible if it is relevant, that is “if it logically tends to establish a material

fact in the case, tends to make a fact at issue more or less probable, or

supports a reasonable inference or presumption regarding a material fact.”

Commonwealth v. Williams, 896 A.2d 523, 539 (Pa. 2006) (quoting

Commonwealth v. Stallworth, 781 A.2d 110, 117-118 (Pa. 2001)).

       At the time of Appellant’s trial,1 Pennsylvania Rule of Evidence 402

expressly provided that “[a]ll relevant evidence is admissible, except as

otherwise provided by law[,]” and “[e]vidence that is not relevant is not

admissible.”     Pa.R.E. 402.       Pennsylvania Rule of Evidence 401 defined

____________________________________________


1
    I note that, subsequent to Appellant’s trial, the Pennsylvania Rules of
Evidence were rescinded and replaced, effective March 18, 2013. As set
forth in the explanatory comments to the new rules, they now “closely follow
the format, language, and style of the amended Federal Rules of Evidence.
The goal of the Pennsylvania Supreme Court’s rescission and replacement of
the Pennsylvania Rules of Evidence was . . . to make its rules more easily
understood and to make the format and terminology more consistent, but to
leave the substantive content unchanged.”           Explanatory Comments
preceding the Pennsylvania Rules of Evidence, at ¶ 2.



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“Relevance” as “evidence having any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable

or less probable than it would be without the evidence.” Pa.R.E. 401.

      Likewise, Pennsylvania Rule of Evidence 403 set forth that relevant

evidence “may be excluded if its probative value is outweighed by the

danger of unfair prejudice[.]”    Pa.R.E. 403.      The comment to Pa.R.E. 403

defined “unfair prejudice” as “a tendency to suggest decision on an improper

basis or to divert the jury’s attention away from its duty of weighing the

evidence impartially.”   Pa.R.E. 403 cmt.        Furthermore, our Supreme Court

has noted previously that “[e]vidence will not be prohibited merely because

it is harmful to the defendant.” Commonwealth v. Dillon, 925 A.2d 131,

138–139 (Pa. 2007). “[E]xclusion is limited to evidence so prejudicial that it

would inflame the jury to make a decision based upon something other than

the legal propositions relevant to the case.” Commonwealth v. Page, 965

A.2d 1212, 1220 (Pa. Super. 2009) (citing Commonwealth v. Owens, 929

A.2d 1187, 1191 (Pa. Super. 2007)).

      As a general rule, a defendant’s prior bad acts, including convictions,

are   not   admissible   to   prove   criminal    propensity   or   bad   character.

Commonwealth v. Paddy, 800 A.2d 294, 307 (Pa. 2002).                      Rule 404

stated, in pertinent part, as follows:

      (b) Other crimes, wrongs, or acts.




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

          (2) Evidence of other crimes, wrongs, or acts may be
     admitted for other purposes, such as proof of motive,
     opportunity, intent, preparation, plan, knowledge, identity or
     absence of mistake or accident.

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

Pa.R.E. 404(b).   “This rule deals exclusively with the evidence of crimes,

wrongs or acts which a party seeks to admit to prove something about an

accused, a complainant or a witness.” Commonwealth v. Thompson, 779

A.2d 1195, 1201 (Pa. Super. 2001).       Such evidence may be admissible

“where it is relevant for some other legitimate purpose and not utilized

solely to blacken the defendant’s character.” Commonwealth v. Russell,

938 A.2d 1082, 1092 (Pa. Super. 2007).

     Essentially, Rule 404(b) seeks to prevent misuse of other acts

evidence, “specifically, that jurors might convict a defendant because they

perceive the defendant has a bad character or propensity to commit crimes.”

Commonwealth v. Cascardo, 981 A.2d 245, 251 (Pa. Super. 2009)

(quoting Commonwealth v. Hacker, 959 A.2d 380, 392 (Pa. Super.

2008)).   Nevertheless, when prior bad acts evidence is offered for some

other legitimate purpose, for example, where the evidence is relevant and

part of the chain or sequence of events that contributed to the natural


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development of the facts - it may be admissible.            Id. at 250.   “[T]o

determine if evidence of other offenses is admissible under Pa.R.E. 404(b),

we must first assess whether the evidence of the other offenses is relevant

to a permissible purpose and second assess whether its probative value

outweighs its potential for prejudice.” Hacker, 959 A.2d at 392.

      In addressing the admission of evidence of Appellant’s involvement in

an altercation, the trial court offered the following analysis:

      [E]vidence of the recent dispute tends to establish Appellant’s
      motive for the assault on [Mr.] Clardy.

                                   ***

      [T]he Commonwealth was not attempting to show through
      evidence of the prior dispute over the card game debt that
      Appellant has a propensity toward criminal conduct. Rather,
      [Appellant’s] prior fight shows a motive for his additional
      criminal conduct, in that the dispute between Appellant’s group
      of friend[s] and [Ms.] Cochran’s [group of friends] had not
      resolved and was violent in nature.2       As such, it is highly
      probative and this Court did not err in determining that its
      probative value outweighs the resulting prejudice to Appellant.
            2
               Although only the motive exception was argued
            and was sufficient as an exception, the evidence
            would also be admissible to show the history and
            natural development of the events and offenses for
            which Appellant was charged.

Trial Court Opinion, 3/27/13, 7 (citations omitted).        Upon review of the

certified record, I am constrained to agree with the trial court.

      My review reflects that both Mr. Taza Clardy, the victim of the crime

herein, and Ms. Ashley Cochran testified regarding their familiarity with each

other and with Appellant.         Specifically, both witnesses testified that

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Ms. Cochran was dating the son of Mr. Clardy’s girlfriend. N.T., 4/11-13/12,

at 51, 115-116. In addition, Ms. Cochran testified that she and Mr. Clardy

were on friendly terms.    Id. at 118.    Also, both witnesses testified that

Mr. Clardy had been to Ms. Cochran’s home on occasions prior to the

incident in question.   Id. at 51-52, 118-119.   Mr. Clardy testified that he

would “hang out” with Ms. Cochran about two or three times per week and

that he is still friends with Ms. Cochran. Id. at 85-86. Ms. Cochran testified

that Appellant and his brother lived with their mother in a house across the

street from Ms. Cochran’s home for a long period of time. Id. at 124-125.

Ironically, Mr. Clardy offered testimony that he had been with Appellant at

Ms. Cochran’s home on occasions prior to the incident in question. Id. at

54-55.   Mr. Clardy stated that, while he and Appellant may not have

engaged in extended conversations, Mr. Clardy had shaken hands with

Appellant at Ms. Cochran’s home when they had both been present. Id. at

55.

      The record further reflects that, several weeks prior to the incident in

question, a group of Ms. Cochran’s friends got into a dispute with a group of

individuals, including Appellant, with regard to a game of cards. Id. at 116.

Ms. Cochran explained that, the week after the card game, a physical fight

occurred in front of her home between Ms. Cochran’s friends and Appellant

and his friends in relation to money owed from the card game. Id. at 116-

118. During the altercation, Appellant struck one of Ms. Cochran’s friends


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from behind. Id. at 118. Ms. Cochran testified that after the fight everyone

involved was still angry. Id. Incidentally, the shooting of Mr. Clardy, which

resulted   in   the   crimes   herein,    occurred   on   the   street   in   front   of

Ms. Cochran’s home. Although Mr. Clardy was not at the card game or the

fight, there exists testimony in the record reflecting that Appellant did see

Mr. Clardy with Ms. Cochran’s group of friends. Id. at 134-135.

      In my estimation, these facts support the trial court’s conclusion that

evidence of the altercation on the street prior to the incident in question

helped establish Appellant’s motive for shooting a firearm at Mr. Clardy, as

one of Ms. Cochran’s friends.            In addition, this evidence establishes a

complete history of the events leading up to the shooting of Mr. Clardy.

Moreover, in my assessment, the potential for prejudice from admission of

this evidence does not outweigh its probative value. Accordingly, I do not

believe that the trial court abused its discretion in allowing the admission of

the evidence regarding the prior fight on the street.           Hence, I respectfully

dissent.

      P.J. Gantman, Judge Mundy, and Judge Olson join this dissenting

opinion.




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