J. A26006/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                         Appellant       :
                                         :
                    v.                   :         No. 1777 MDA 2014
                                         :
JESSICA LYNN ALINSKY                     :


                Appeal from the Order Dated October 7, 2014,
               in the Court of Common Pleas of Luzerne County
               Criminal Division at No. CP-40-CR-0003915-2013


BEFORE: FORD ELLIOTT, P.J.E., WECHT AND PLATT,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED NOVEMBER 06, 2015

        This case concerns the death of Matthew Gailie. The Commonwealth

charged Jessica Alinsky (“appellee”) with criminal homicide and tampering

with or fabricating physical evidence.1 Herein, the Commonwealth appeals

from the order of October 7, 2014, which denied the Commonwealth’s

motion in limine, which sought to introduce evidence that appellee staged a

false burglary at her residence six months prior to Mr. Gailie’s death. We

affirm on the trial court’s opinion.2



* Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2501 and 4910, respectively.
2
  The Commonwealth may appeal an interlocutory order        denying the use of
evidence when it provides a certification with its notice   of appeal that the
order   terminates   or    substantially   handicaps        the    prosecution.
Commonwealth v. Whitlock, 69 A.3d 635, 636 n.2               (Pa.Super. 2013),
J. A26006/15


     The trial court recited the facts of this case as follows:

                 In the late evening of September 2, 2011, the
           Pennsylvania State Police were dispatched to a
           residence at Eagle Rock Development, Hazle
           Township, Luzerne County, as a result of a 911 call
           from Jessica Alinsky. Ms. Alinsky reported that her
           boyfriend, Matthew Gailie, had shot himself in the
           head. When the police arrived at the scene, they
           found Mr. Gailie lying on his back with a gunshot
           wound near his left nostril. Jessica Lynn Alinsky was
           charged with Criminal Homicide and Tamper
           With/Fabricate Physical Evidence.

                 On October 6, 2014, the Court entertained
           various    pre-trial   motions,      including    the
           Commonwealth’s Motion in Limine to allow
           testimony and evidence of other crimes, wrongs or
           acts of the defendant under Pennsylvania Rule of
           Evidence 404(b), specifically the staging of a crime
           scene on March 2, 2011. After argument and the
           review of the evidence, the Court denied said
           motion. The Commonwealth now appeals.

                 The Commonwealth seeks the admission of
           evidence that Ms. Alinsky staged a burglary at her
           residence, in [sic] prior to the alleged homicide, to
           give the impression that her home had been
           burglarized. According to the Commonwealth, Ms.
           Alinsky not only staged a burglary but lied to law
           enforcement personnel, created an elaborate story to
           accompany the staged scene and physically
           manipulated item[s] in her home to support the
           staging.

                  At the time of argument on this Motion, the
           Commonwealth conceded that Ms. Alinsky did not
           call the police to report the burglary on or ab[o]ut



citing Pa.R.A.P. 311(d). As the trial court ruling excludes Commonwealth
evidence, and the Commonwealth has certified that the effect of the ruling
substantially handicaps the prosecution, we find that this appeal is properly
before this court.


                                     -2-
J. A26006/15


            March 2, 2011. Further, the Commonwealth asserts
            that the “March staged burglary” took place while
            Mr. Gailie was at work. When Mr. Gailie arrived
            home, Ms. Alinsky told him about the incident, and
            he, in turn, called the Eagle Rock security. It was
            Eagle Rock Security that called the police. The police
            questioned both Ms. Alinsky and Mr. Gailie. Nothing
            was stolen. No arrest was made.

                  The    Commonwealth       next    argued   that
            Ms. Alinsky made statements on prison recordings
            that the crime scene in the March incident was
            staged, and that[,] in turn, is important to prove
            motive and intent and support the theory of first
            degree murder. The Commonwealth’s assertion is
            that the March staged burglary is applicable to the
            lesser charge of tampering or fabricating evidence.

                  With regard to the Motion, the Commonwealth
            did not provide testimony. Rather, during argument,
            the Commonwealth provided the Court with
            recordings as well as information and reports of the
            March staged burglary, including statements made
            by Ms. Alinsky to the Eagle Rock security and the
            Pennsylvania State Police.

                  The Defense contends that [the] March staged
            burglary does not mean that Ms. Alinsky committed
            murder in September. Ms. Alinsky further asserts
            that the March staged burglary is prejudicial.

                  There is a distinction between the March
            staged burglary and the underlying criminal
            homicide. In the March staged burglary, Ms. Alinsky
            did not call the police as she did on the evening of
            September 2, 2011. In the first scenario, there is no
            evidence that she was trying to get away with a
            crime. Whereas, in the second scenario, even by the
            Commonwealth’s own position, she allegedly staged
            the crime scene so that she would not be charged
            with homicide and make Mr. Gailie’s death appear to
            be suicide.

Trial court opinion, 3/10/15 at 1-2.


                                       -3-
J. A26006/15


      Through its motion in limine, the Commonwealth sought to introduce

evidence that appellee had staged a burglary six months prior to Mr. Gailie’s

death, and then subsequently lied to the police about the staged burglary.

(Commonwealth’s brief at 8.) The trial court considered arguments relating

to the Commonwealth’s motion on October 6, 2014, before denying the

motion. The Commonwealth filed notice of appeal on October 14, 2014, and

pursuant to Pa.R.A.P. 1925, the trial court filed an opinion.

      The Commonwealth presents the following issue for our review:

            Did the Lower Court abuse its discretion and err,
            thereby terminating or substantially handicapping
            the Commonwealth’s prosecution of the Appellee, by
            denying the Commonwealth’s Motion In Limine /
            Pennsylvania Rule of Evidence 404(b) Notice of
            Intention to Seek to Admit Evidence of Other Crimes,
            Wrongs or Acts of the Defendant when the
            Commonwealth intended to introduce evidence that
            the Appellee, six (6) months prior to the incident
            giving rise to the current charges which include
            Criminal Homicide, staged a crime scene; namely,
            that of a purported burglary at her residence, so as
            to give the impression that her home had been
            burglarized and when the Commonwealth intended
            to introduce said evidence so as to demonstrate the
            Appellee’s motive, intent, absence of mistake or
            accident, common scheme, plan or design or
            identity?

Appellant’s brief at 4.

      Based on our careful review of the record, the briefs, and Judge

Tina Polachek Gartley’s comprehensive and well-reasoned opinion dated

March 10, 2015, we affirm.

      Order affirmed.


                                     -4-
J. A26006/15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/6/2015




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  COMMONWEALTH             OF PENNSYLVANIA:        TN THE COURT OF COMMON PLEAS
                                                          OF LUZERNE COUNTY

                 v.                                            CRIMINAL DIVISION

  JESSICA ALfNSKY

                 Defendant                       : NO. 3915 OF 2013

                                              OPINION

         In the late evening of September 2, 2011, the Pennsylvania State Police were dispatched

 to a residence at Eagle Rock Development, Hazle Township, Luzerne County, as a result of a

 911 call from Jessica Alinsky. Ms. Alinsky reported that her boyfriend, Matthew Gailie, had

 shot himself in the head. When the police arrived at the scene, they found Mr. Gailie lying on

 his back with a gunshot wound near his left nostril. Jessica Lynn Alinsky was charged with

 Criminal Homicide and Tamper With/Fabricate Physical Evidence.

        On October 6, 2014, the Court entertained various pre-trial motions, including the

Commonwealth's        Motion in Limine to allow testimony and evidence of other crimes, wrongs or

acts of the defendant under Pennsylvania Rule of Evidence 404(b ), specifically the staging of a

crime scene on March 2, 2011. After argument and the review of the evidence, the CoW1 denied

said motion. The Commonwealth now appeals.

        The Commonwealth seeks the admission of evidence that Ms. Alinsky staged a burglary

at her residence, in prior to the alleged homicide, to give the impression that her home had been

burglarized. According to the Commonwealth, Ms. Alinsky not only staged a burglary but lied to

law enforcement personnel, created an elaborate story to accompany the staged scene and

physically manipulated item in her home to support the staging.

       At the time of argument on this Motion, the Commonwealth conceded that Ms. Alinsky

did not call the police to report the burglary on or abut March 2, 2011. Further, the
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  Commonwealth asserts that the "March staged burglary" took place while Mr. Gailie was at

  work. When Mr. Gailie arrived home, Ms. Alinsky told him about the incident, and he, in turn,

  called the Eagle Rock security. It was Eagle Rock Security that called the police. The police·

 questioned both Ms. Alinsky and Mr. Gailie. Nothing was stolen. No arrest was made.

            The Commonwealth next argued that Ms. Alinsky made statements on prison recordings

 that the crime scene in the March incident was staged, and that in turn, is important to prove

 motive and intent and support the theory of first degree murder. The Commonwealth's assertion

 is that the March staged burglary is applicable to the lesser charge of tampering or fabricating

 evidence.

         With regard to the Motion, the Commonwealth did not provide testimony.

 Rather, during argument, the Commonwealth provided the Court with recordings as well as

 information and reports of the March staged burglary, including statements made by Ms. Alinsky

to the Eagle Rock security and the Pennsylvania State Police.

         The Defense contends that March staged burglary does not mean that Ms. Alinsky

committed murder in September. Ms. Alinsky further asserts that the March staged burglary is

prejudicial.

        There is a distinction between the March staged burglary and the underlying criminal

homicide.      In the March staged burglary, Ms. Alinsky did not call the police as she did on the

evening of September 2, 2011.      In the first scenario, there is no evidence that she was trying to

get away with a crime. Whereas, in the second scenario, even by the Commonwealth's own

position, she allegedly staged the crime scene so that she would not be charged with homicide

and make Mr. Gailie's death appear to be suicide.




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         In Commonwealth v. Powell, 956 A.2d 406 (Pa.2008), our Supreme Court susinctly

 addressed the admissibility of prior bad acts at trial.

         Rulings on the admissibility of evidence are within the discretion of the
         trial judge, and such ruling form no basis for a grant of appellate relief
         absent an abuse of discretion. While it is true that evidence of prior
         crimes and bad acts is generally inadmissible if offered for the sole
        purpose of demonstrating the defendant's bad character or criminal
        propensity, the same evidence may be admissible where relevant for
        another purpose. Examples of other such relevant for another purpose.
        Examples of other such relevant purposes include showing the defendant's
        motive in committing the crime on trial, the absence of mistake or
        accident, a common scheme or design, or to establish identity .... [T]he
        evidence may also be admitted where the acts were part of a chain or
        sequence of events that formed the history of the case and were part of its
        natural development. Of, course, in addition relevance requirement, any
        ruling on the admissibility of evidence is subject to the probative
        value/prejudicial effect balancing that attends all evidentiary rulings.

Id. at 419.

        The test for relevancy is found in Pa. R.Evi9. Rule 401. Test for Relevant Evidence

Evidence is relevant when

               (a)       it has any tendency to make a fact more or less probable than it
                         would be without the evidence; and

               (b)       the fact is consequence in determining the action.

        Relevancy is a threshold consideration in determining the admissibility of

evidence. Whyte v. Robinson, 617 A.2d 380 (Pa. Super 1992).           Every piece of evidence

must relate to some issue the jury has to decide. Berstein, 2015 Pa. Rules of Evidence, Comment

J to Pa.R.E. 401 (Gann). Although such a statement sounds rudimentary, perhaps a gentle

reminder is warranted.

       "Determination of relevancy of evidence offered at trial requires a two step analysis. It

must be determined, first, if the inference sought to be raised by the evidence bears upon a matter

in issue in the case and, second, whether the evidence     renders the desired inference more


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 probable than it would be with the evidence ....   "Commonwealth v. Stewart, 336 A.2d 282 (Pa.

 1975) quoting McCormick, Evidence, Section 185 (2d ed. 1972).

         When applying these threshold questions to the facts provided by the Commonwealth, it

 is clear that the March staged burglary is relevant to Count 2 Tamper With/Fabricate Physical

 Evidence. However, the Commonwealth was hard-pressed to show how the inference that Ms.

 Alinsky allegedly staged a burglary bears upon a matter in issue in Count 1 Homicide. Nor does

 evidence of a staged burglary render the desired inference more probable than it would be with

 the evidence.

        Once relevance is determined, the inquiry shifts to whether the probative value of the

offered evidence outweighs the prejudicial effect of such proffered evidence. Commonwealth v.

Treiber, 874 A.2d 26 (Pa. 2005). To make such a determination, the court must always weigh

the prejudice against the probative value by evaluating the proponent's need for the evidence.

As with all evidentiary rulings, the court must balance the relevancy and evidentiary need for the

evidence of distinct crimes against the potential for undue prejudice. Commonwealth v. Lark,

543 A.2d 497 (Pa. 1988). For example, evidence of other acts may be necessary to show motive

(see Commonwealth v. Norman, 549 A.2d 981, (Pa.Super. 1988), app.denied 562 A.2d 825

(Pa.1989)) or demonstrate common scheme and plan (see Commonwealth v. Gordan, 673 A.2d

866 (Pa. 1996)).

       The Commonwealth argues that the March staged burglary is admissible to prove

motive. Motive, of course, is never an element of a crime but it is relevant and assists in

providing a plausible reason for the crime. Put more simply, evidence of motive answers the

questions "why."




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         "To be admissible to show motive, the evidence must provide a sufficient ground Lo

  believe that the crime currently being considered grew out of, or was in some was cased by. the

 prior set of circumstances." Commonwealth v. Spotz, 756 A.2d 1139 (Pa. 2000).

         The cases where evidence of a burglary is admissible in a homicide trial are

 distinguishable from the case at bar. First, there was no actual burglary.   Second, in

 Commonwealth v. Griffin, 684 A.2d 589 (Pa.Super. 1996), evidence of a plan to commit a

 robbery immediately (emphasis added) before the victim in the underlying case was killed.

 Evidence of the plan was allowed into evidence to complete the story of the crime or to prove

 motive. The description of the plan to commit robbery and the use of the victim as a driver

 provided the context for why the defendant's van was later stopped and why the victim was

 running away from the defendant before he was killed.

        The Griffin court went on to opine that to be admissible under the motive exception,

evidence of the prior bad act "must give sufficient ground to believe that the crime currently

being considered grew out of or was in any way caused by the prior set of facts and

circumstances. '' Commonwealth v. Martin, 387 A.2d 835 (Pa. 1978) The Court went on to

explain that it was plausible that the defendant stopped the vehicle and the victim ran away

giving rise to defendant's belief that the victim was going to go to the police station to report the

planned robbery.

       Such a nexus does not exist in the case at bar.

       How does the Homicide and the Tampering with Evidence, the crime currently being

considered, grow out of or was in some way caused by the March staged burglary? It does not.

How then does evidence of the March staged burglary answer the question why Ms. Alinsky

allegedly murdered Mr. Galie and staged the scene of the current charge? It does not. The
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Commonwealth's attempt, although arguably creative, does not rise to the level of allowing for

its admissibility at the time of trial. Moreover, the "need" for the admission of this evidence

does not outweigh the prejudicial effect of such testimony.

       Nor does the evidence of the March staged burglary become admissible to prove a

common plan, scheme or design. A common scheme, plan or design embraces the commission

of two or more crimes so related to each other that proof of one naturally tends to prove the

others. Commonwealth v. O'Brien, 836 A.2d 966 (Pa.Super. 2003).        Even though the evidence

of the March staged burglary is relevant to Count 2, the uniqueness of a common plan, scheme,

and design in the case at bar would be demonstrated if the two staged crime scenes were two

homicides. That does not exist in this matter.

       As such, the Motion is hereby denied.

                                      END OF OPINION




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