J. A15044/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :    IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                     v.                     :
                                            :
ZACKERY JAMES ZERBE,                        :         No. 1941 MDA 2017
                                            :
                          Appellant         :


         Appeal from the Judgment of Sentence, November 13, 2017,`
              in the Court of Common Pleas of Lancaster County
               Criminal Division at No. CP-36-CR-0006134-2016


BEFORE: PANELLA, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED AUGUST 09, 2018

        Zackery Zerbe appeals the November 13, 2017 judgment of sentence in

which the Court of Common Pleas of Lancaster County sentenced him to an

aggregate term of 40 months to 10 years’ imprisonment for aggravated

assault, simple assault, and terroristic threats following a jury trial.1 After

careful review, we affirm.

        The facts, as stated by the trial court, are as follows:

              [Appellant] and the victim, [S.B.] [(“victim”)], were
              married on August 14, 2015. Their families were
              familiar with each other as [appellant], [appellant’s]
              father, the victim, and the victim’s family all worked
              for a company owned by the victim’s father. At some
              point, the victim began to have concerns about
              [appellant’s] drinking and expressed that to him. The
              victim testified that a mere two (2) weeks before the
              incident that gave rise to the instant charges,

1   18 Pa.C.S.A. §§ 2702(a)(1), 2702(a)(3), and 2706(a)(1), respectively.
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          [appellant’s] drinking had led to an incident where he
          punched her in the back of the head a couple of times
          and threatened to get a gun. According to the victim,
          [appellant] had threatened her, her family and her
          animals if she told anyone about the incident and she
          was scared.

          Subsequently, on November 11, 2016, [appellant]
          physically attacked the victim after she questioned
          [appellant] about his drinking. [Appellant] came into
          the bedroom after the victim had gone to bed and
          proceeded to punch her repeatedly in the head, face
          and her arms as she attempted to shield herself.
          [Appellant] then proceeded to restrain the [victim]
          while choking her with his arm and telling her that she
          needed to die. The victim testified that during this
          time she could not breathe, involuntarily urinated
          herself and could feel herself slipping in and out of
          consciousness. At some point, the victim’s earrings
          were ripped from her ears. [Appellant] eventually let
          go of the victim and, after pacing and yelling for some
          time, retrieved a gun from a dresser. [Appellant]
          waved the gun around and pointed it at the victim
          threatening to kill her and her family. [Appellant] told
          the victim that he was in control and that she was
          going to listen to him and not see her parents
          anymore. The victim pleaded with [appellant] to put
          the gun down and after the victim had responded that
          she had learned her lesson, [appellant] put the gun
          on the dresser and left the room.

          After [appellant] had left the room, the victim hid the
          gun in another dresser drawer and texted her sister
          for help from [appellant’s] cell phone, which was left
          in the room. When the victim’s sister arrived at the
          house, the victim ran past [appellant] and out of the
          house telling her sister that [appellant] had a gun.
          Together, she and her sister ran, first to her sister’s
          house, and then drove to the victim’s parent’s [sic]
          house where her mother called police. The victim was
          transported to an emergency room, treated for her
          injuries and released. Photographs were admitted
          into evidence of the victim’s injuries over the course
          of the next week and of the scene of the incident,


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            which showed blood on the wall, a urine stain on the
            bed and earrings on the floor. Dr. Callie Dagen, the
            victim’s treating physician in the emergency room on
            November 11, 2016, testified that she diagnosed the
            victim in the emergency room with facial hematomas,
            a closed-head injury and a left shoulder contusion
            following the assault. Dr. Harry Kintzi, an expert in
            emergency medicine, testified that it was his opinion,
            based upon a review of the victim’s medical records
            and the photographs, that the victim suffered a
            significant strangulation event that “was not just for a
            few seconds” and “was probably a near-death
            experience.”

            Prior to the incident on November 11, 2016, the
            victim’s medical history included several prior
            concussions, not related to or caused by [appellant],
            for which she received continuing treatment once
            every month. [Appellant] was aware of the victim’s
            medical history and the continuing treatment of her
            condition prior to punching her in the head on
            November 11, 2016. In fact, the victim’s mother
            testified that prior to the couple getting married, she
            had specifically warned [appellant] that the victim
            must avoid further injury to her head.

Trial court opinion, 1/25/18 at 1-4 (citations to record omitted).

      On August 25, 2017, appellant filed a motion in limine and sought to

bar testimony from the victim concerning prior abuse at the hands of appellant

because the probative value of any testimony relative to the allegations of

prior abuse was outweighed by the danger of unfair prejudice to appellant. In

the same motion, appellant sought to bar testimony regarding prior

concussions suffered by the victim because the testimony was irrelevant since

appellant did not cause the concussions and any probative value would be

substantially outweighed by the danger of unfair prejudice to appellant. At



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the start of the trial on August 28, 2017, the trial court denied the motion as

to these two issues.

      A jury convicted appellant of the aforementioned crimes. Appellant filed

a notice of appeal on December 13, 2017. On December 15, 2017, the trial

court directed appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).        On January 5, 2018, appellant

complied with the order. The trial court filed its opinion on January 25, 2018.

      Appellant raises the following issues for this court’s review:

            I.     Did the trial court err in denying [appellant’s]
                   Motion in Limine seeking to bar [the victim’s]
                   testimony regarding prior, unreported physical
                   abuse by [a]ppellant in addition to her
                   testimony regarding alleged past threats made
                   by [a]ppellant to deter [the victim] from
                   reporting abuse, where the probative value of
                   this evidence was substantially outweighed by
                   its prejudicial effect on [a]ppellant?

            II.    Did the trial court err in denying [appellant’s]
                   Motion in Limine seeking to bar [the victim’s]
                   testimony of prior concussions she experienced
                   which were not caused by [a]ppellant, where
                   this evidence was irrelevant and any probative
                   value was substantially outweighed by its
                   prejudicial effect on [a]ppellant?

Appellant’s brief at 5.

      “On 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. Aikens, 990 A.2d

1181, 1184 (Pa.Super. 2010) (citations omitted). “Abuse of discretion is not



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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. at 1184-1185

(citations omitted).

      Initially, appellant contends that the trial court erred when it denied his

motion in limine to prevent the victim from testifying regarding prior

unreported physical abuse by appellant as well as testimony regarding alleged

past threats made by appellant to deter the victim from reporting the abuse

because the probative value of the evidence was substantially outweighed by

its prejudicial effect. Appellant contends that this evidence was not relevant2

and was unfairly prejudicial to him and not probative of any pertinent fact and

should have been inadmissible under Pennsylvania Rule of Evidence 404(b).

                   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




2 Rule 401 of the Pennsylvania Rules of Evidence provides that “‘relevant
evidence’ means 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.


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           accident. Pa.R.E. 404(b)(2).[3] 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.

Aikens, 990 A.2d at 1185 (citations to case law omitted).

                  The evidence may also be admissible to
                  impeach the credibility of a testifying
                  defendant; to show that the defendant
                  has used the prior bad acts to threaten the
                  victim; and in situations where the bad

3          Rule 404. Character Evidence; Crimes or Other
           Acts

           ....

           (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.

                  (3)   Exceptions    for  a    Witness.
                        Evidence of a witness's character
                        may be admitted under Rules 607,
                        608, and 609.

Pa.R.E. 404(b)(1)-(3). Rules 607-609 address the impeachment of witnesses.


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                  acts were part of a chain or sequence of
                  events that formed the history of the case
                  and were part of its natural development.
                  In order for evidence of prior bad acts to
                  be admissible as evidence of motive, the
                  prior bad acts “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. Reid, 571 Pa. 1, 35, 811 A.2d
            530, 550 (2002) (citations omitted), cert. denied,
            540 U.S. 850, 124 S.Ct. 131, 157 L.Ed.2d 92 (2003).

Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, 1283 (Pa.Super.

2004).

      Also, in Melendez-Rodriguez, this court held that evidence of prior

abuse was admissible to establish a defendant’s intent to terrorize and place

the victim in fear of serious bodily injury and to establish how it was possible

to terrorize the victim in that case. Id. at 1286.

      Here, the trial court determined that the testimony concerning prior

abuse was relevant to indicate the relationship between appellant and victim,

the pattern of abuse, the escalating nature of the abuse, and appellant’s

motive and intent for the abuse at issue. (Trial court opinion, 1/25/18 at 7-8.)

The trial court reasoned:

            Specifically, the victim’s testimony concerning the
            tension surrounding the issue of [appellant’s] drinking
            and the abuse that occurred just two (2) weeks prior
            to [the] November 11, 2016 incident, gives insight as
            to why the victim questioning [appellant] about his
            drinking that evening resulted in [appellant] brutally
            attacking the victim after she had gone to bed.


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             Furthermore, [appellant’s] prior threats toward the
             victim, her family and her animals if she disclosed the
             abuse provides insight into why [appellant] retrieved
             the gun after the attack and made threats to kill the
             victim’s family and establishes [appellant’s] motive
             for and intent to terrorize the victim with such threats.
             The challenged evidence shows the chain or sequence
             of events that formed the history of the case and is
             part of the natural development of the case. It also
             demonstrates [appellant’s] motive, malice, intent,
             and ill-will toward the victim. The probative value of
             the evidence clearly and substantially outweighed any
             risk of unfair prejudice to [appellant] and its
             admission was not error.

Id. at 8.

        The trial court’s reasoning is sound and follows established case law.

The trial court did not abuse its discretion when it ruled that this relevant

evidence was admissible.

        Appellant next contends that the trial court erred when it denied

appellant’s motion in limine that sought to bar the victim’s testimony of prior

concussions she experienced which were not caused by appellant, as this

evidence was irrelevant and any probative value was substantially outweighed

by the prejudicial effect on appellant. Appellant asserts that these concussions

were not relevant because they occurred years before appellant and the victim

were in a relationship and before the date of the abuse at issue here.

Appellant claims that the evidence has no relationship to the case against

appellant as it does not tend to prove or disprove any pertinent fact of the

case.    Further, the admission of this evidence, appellant argues, was not




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harmless because it cast appellant in an extremely negative light in that he

had the past concussions in mind when he hit the victim in the head.

      With respect to this issue, the trial court concluded:

            The testimony concerning the victim’s prior
            concussions, the victim’s continuing treatment and
            [appellant’s] knowledge about the victim’s condition
            was relevant because it tends to establish
            [appellant’s] motive for punching [the victim]
            repeatedly in the head and his intent to cause serious
            bodily injury. The victim specifically testified that the
            prior concussions were not caused by [appellant]. The
            probative weight of the testimony clearly and
            substantially outweighed any risk of unfair prejudice
            to [appellant] and its admission was not error.

Trial court opinion, 1/15/18 at 9.

      This court agrees that the evidence was relevant for the reasons stated

by the trial court. The trial court did not abuse its discretion when it ruled

that this evidence was admissible.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/9/2018




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