J.S14019-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
      v.                                   :
                                           :
JAQUILL JAMES BLAKE,                       :
                                           :
               Appellant                   :        No. 1429 MDA 2016

           Appeal from the Judgment of Sentence December 10, 2015
                 in the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0003085-2011

BEFORE:      GANTMAN, P.J., SHOGAN, and STRASSBURGER,* JJ.

CONCURRING MEMORANDUM BY STRASSBURGER, J.:FILED APRIL 20, 2017

      I respectfully concur.   While I agree with the result reached by the

Majority, I disagree with the Majority’s conclusion that the res gestae

exception was applicable in this case.

      Appellant claims “that trial counsel was ineffective for failing to object

to the introduction of evidence at the time of trial concerning Appellant’s

drug dealing.”   Majority Memorandum at 4-5.       Appellant was convicted of

shooting and killing Alexis Rosario (Rosario), following an argument at the

Glenside Housing Projects in Reading, Pennsylvania. N.T., 9/12/2012, at 81-

84.   One of the Commonwealth’s witnesses, Dean Schappell (Schappell),

drove Appellant to and from the housing project where the incident

occurred. Id. at 142. Schappell testified that he was in the city that day to

purchase illegal drugs from Appellant. Id. at 138-139. He met Appellant at

a specified location, and once there, Appellant asked Schappell to drive him

*Retired Senior Judge assigned to the Superior Court.
J.S14019-17


to the Glenside neighborhood. Id. at 140-142. Schappell agreed, and when

they arrived at the housing projects, Schappell remained in the vehicle while

Appellant exited the truck.     Id. at 144.   While waiting, Schappell heard

gunshots, turned his head, and witnessed Appellant shooting Rosario. Id. at

144-146.    Appellant eventually returned to the vehicle, told Schappell to

drive away, and directed Schappell to a nearby Econolodge hotel. Id. 148-

151. There, Schappell purchased drugs from Appellant before returning to

his home in Hamburg. Id. at 151-152.

      The Majority holds that this evidence was admissible as part of the

history of the case, as it “formed the natural development of facts.” Id. at

8.   I find that such a broad application of the res gestae exception would

result in its swallowing the rule.

      This Court’s extensive review of the history and purpose of the

common law res gestae exception to the exclusion of other-bad-acts

evidence in Commonwealth v. Brown, 52 A.3d 320, 328-32 (Pa. Super.

2012), is instructive.    Back in 1883, for example, our Supreme Court

indicated that “[t]he collateral or extraneous offence [sic] must form a link

in the chain of circumstances or proofs relied upon for conviction….” Id. at

330 (quoting Swan v. Commonwealth, 104 Pa. 218, 220 (1883)).

Focusing more on the necessity of interconnectedness, the Brown Court

cited Commonwealth v. Coles, 108 A. 826, 827 (Pa. 1919), in which the

Court asserted that

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     bad acts evidence “is necessarily admissible as to 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.”

Brown, 52 A.3d at 330-31 (quoting Commonwealth v. Coles, 108 A. 826,

827 (Pa. 1919)) (emphasis added in Brown).

     An   example   of   such   inextricable   entanglement   is   provided   in

Commonwealth v. Lark, 543 A.2d 491, 497 (Pa. 1988). In that case,

     [Lark] was charged with murdering the owner of a take-out
     restaurant, possession of an instrument of crime, terroristic
     threats involving repeated threats made to a prosecuting
     attorney, and kidnapping a woman and her two children by
     holding them hostage while attempting to elude capture by
     police. The murder victim identified [Lark] as the person who
     robbed him of over $4,000 in cash and he was scheduled to
     testify at a preliminary hearing the day after his death. Lark was
     prosecuted by Assistant District Attorney Charles Cunningham
     for the robbery, despite the death of the witness.           [Lark]
     threatened Cunningham and absconded during the robbery trial.
     The robbery trial continued, and [Lark] telephoned threats to the
     prosecutor. He also threatened two detectives attempting to
     apprehend him. Officers eventually located [Lark], but he fled
     into the home of a woman and her two children and held them
     hostage for two hours. When [Lark] was apprehended, he had
     the addresses of the prosecutor and the prosecutor’s grandfather
     in his possession. In the context of discussing why severance of
     the charges was inappropriate, our Supreme Court highlighted
     that each crime was necessarily interwoven with the others and
     flowed directly from one another.

Brown, 52 A.3d at 331-32. Thus, the narrative made no sense unless all of

the bad acts were understood.




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      Summarizing its review of these cases and others, the Brown Court

stated that “the history of the res gestae exception demonstrates that it is

properly invoked when the bad acts are part of the same transaction

involving the charged crime.” Brown, 52 A.3d at 332.

      In the instant case, the subsequent drug deal following the shooting

was not part of the same transaction involving the charged crime.         The

evidence established that Appellant shot Rosario following an argument at

the housing project.     Because there was no evidence introduced that

suggested the motive of the shooting involved Appellant’s dealings with

Schappell, Schappell’s reason for driving Appellant to and from the scene of

the crime is nowhere near being so interconnected as to be inseparable from

the relevant narrative as were the events in Lark.

      Furthermore, while Appellant’s drug dealing is mentioned throughout

the testimony, it would not have been difficult to avoid those references.

Schappell’s eyewitness testimony could have been told without revealing

why Schappell was in the city that day or his motivation for driving Appellant

to Glenside.

      Thus, because Appellant’s drug dealing and Schappell’s drug purchase

from Appellant had nothing to do with the issue at trial, i.e., whether

Appellant shot and killed Rosario, and it is not so inextricably intertwined

with the relevant issues that omission of such evidence would have made

the story unintelligible, I believe that there is arguable merit to the claim

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that counsel should have sought to exclude references to Appellant’s drug

dealing.

      However, I agree with the Majority’s conclusion that “Appellant has

failed to prove the prejudice prong[,]” considering the “overwhelming

evidence presented at trial that established [] Appellant was guilty of the

crimes for which he was convicted.”         Majority Memorandum at 8.      This

evidence included the testimony of two eyewitnesses who placed Appellant

at the scene of the crime and witnessed him shoot Rosario. Id. Appellant

has not convinced me that the outcome would have been different had

counsel    sought   to   exclude   the   references   to   his   drug   dealing.

Commonwealth v. Hutchinson, 25 A.3d 277, 285 (Pa. 2011) (“To

establish [prejudice], Appellant must show that there is a reasonable

probability that the outcome of the proceedings would have been different

but for counsel’s action or inaction.”). Thus, I would affirm the PCRA court’s

denial of the claim on the basis Appellant has failed to establish prejudice.

      P.J. Gantman concurs in the result.




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