J-S67001-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                    Appellee               :
                                           :
              v.                           :
                                           :
THOMAS P. PEEPLES, JR.,                    :
                                           :
                    Appellant              : No. 1274 WDA 2013

              Appeal from the Judgment of Sentence July 1, 2013,
                  Court of Common Pleas, Venango County,
               Criminal Division at No. CP-61-CR-0000595-2012

BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.

MEMORANDUM BY DONOHUE, J.:                       FILED NOVEMBER 20, 2014

        Thomas P. Peeples, Jr. (“Peeples”) appeals from the judgment of

sentence entered following his conviction of aggravated assault, simple

assault, theft by unlawful taking, and receiving stolen property.1 Following

our review, we affirm.

        Peeples’s convictions arise out of events that occurred during the early

morning hours of September 27, 2012. Peeples and Dean Bickel (“Bickel”)

were involved in a physical fight outside of a bar in Oil City, Venango

County. During the fight, Peeples slashed Bickel’s face with a knife, causing

injury to his nose and one eye. When Bickel went to the nearby Country Fair

convenience store in search of a phone, Peeples fled the scene on foot.

Within minutes, he hitched a ride with a passing motorist, Tanya Wimer



1
    18 Pa.C.S.A. §§ 2702(a)(4), 2701(a)(1), 3921(a), 3925(a).

*Former Justice specially assigned to the Superior Court.
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(“Wimer”), and sat in the back seat of her car.      During the trip, Peeples

stated that he had been involved in a fight outside of a bar in Oil City. Also

during the trip, Peeples stole Wimer’s wallet, which had been in the back

seat of her car. Wimer dropped Peeples off at a grocery store in Franklin

and returned to her home. Upon entering her home, Wimer received a call

from the grocery store, informing her that a man had unsuccessfully tried to

use her credit cards in the store and discarded them in the parking lot.

      Peeples was arrested and charged with the offenses listed above. He

filed a motion to sever the charges pursuant to Pa.R.Crim.P. 583 (”Rule

583”), which the trial court denied.   A three-day jury trial ensued, at the

conclusion of which Peeples was convicted of all charges. He was sentenced

to 39 to 78 months of incarceration.     This timely appeal follows, in which

Peeples challenges only the trial court’s denial of his motion to sever.

Appellant’s Brief at 3.

      “A motion for severance is addressed to the sound discretion of the

trial court, and ... its decision will not be disturbed absent a manifest abuse

of discretion.    The critical consideration is whether the appellant was

prejudiced by the trial court's decision not to sever. The appellant bears the

burden of establishing such prejudice.” Commonwealth v. Mollett, 5 A.3d

291, 305 (Pa. Super. 2010).     Prejudice in this context is defined as “that

which would occur if the evidence tended to convict appellant only by

showing his propensity to commit crimes, or because the jury was incapable



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of separating the evidence or could not avoid cumulating the evidence.”

Commonwealth v. Boyle, 733 A.2d 633, 637 (Pa. Super. 1999).

      Rule of Criminal Procedure 583 provides that “[t]he court may order

separate trials of offenses or defendants, or provide other appropriate relief,

if it appears that any party may be prejudiced by offenses or defendants

being tried together.”   Pa.R.Crim.P. 583.    When considering a motion to

sever, a trial court must engage in the following analysis:

            The court must determine whether the evidence of
            each of the offenses would be admissible in a
            separate trial for the other; whether such evidence is
            capable of separation by the jury so as to avoid
            danger of confusion; and, if the answers to these
            inquiries are in the affirmative, whether the
            defendant will be unduly prejudiced by the
            consolidation of offenses.

Commonwealth v. Kunkle, 79 A.3d 1173, 1190 (Pa. Super. 2013)

(quoting Commonwealth v. Lark, 543 A.2d 491, 497 (Pa. 1988)).

      In the present case, the trial court found the first prong of this test

satisfied based upon its determination that the res gestae exception to the

prohibition against admission of bad acts evidence applies. The trial court

concluded that this exception applied because Peeples’s “actions from the

time of the alleged assault occurred to the time he made the statements

while riding with Wimer and stealing her wallet and credit cards amount to a

continuous ongoing episode, notwithstanding the intermittent gaps in time.”

Trial Court Opinion, 3/6/13, at 5.




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        Generally, evidence of bad acts is inadmissible to prove that a

defendant acted in conformity with those acts or to demonstrate a

propensity to commit crimes.        Commonwealth v. Brown, 52 A.3d 320,

325 (Pa. Super. 2012).         “However, evidence of bad acts is admissible

pursuant to our rules of evidence to prove motive, opportunity, intent,

preparation, plan, knowledge, identity, and absence of mistake or accident.”

Id. (citing Pa.R.E. 404(b)(2))2. In addition, “[o]ur Supreme Court has

consistently recognized that admission of distinct crimes may be proper

where it is part of the history or natural development of the case, i.e., the

res gestae exception.” Id. at 326.

         A common example of the use of the res gestae exception is where

evidence of prior physical abuse is admitted to establish a pattern of events


2
    This rule provides, in relevant part, as follows:

              (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.

Pa.R.E. 404(b)(1)-(2).


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leading up to a victim’s murder. See Commonwealth v. Sherwood, 982

A.2d 483, 497 (Pa. 2009) (holding that evidence that appellant had a history

of beating victim relevant to help establish chain of events and pattern of

abuse that eventually led to the fatal beating); Commonwealth v.

Drumheller, 570 Pa. 117, 808 A.2d 893 (2002) (providing that evidence of

multiple protection from abuse petitions filed by victim against appellant

over three years leading to victim’s murder admissible to show history and

natural development of case); Commonwealth v. Walker, 656 A.2d 90, 99

(Pa. 1995) (“[E]vidence of appellant's repeated abuse of Lisa Johnson and

threats were admitted for the purposes of proving not only appellant's

malice, motive and intent to kill, but also to show the natural progression of

the events leading up to the murder.”).

      This exception is also commonly used to permit the admission of

evidence of bad acts that bear a causal relationship to the commission of the

charged offense.   For example, in Commonwealth v. Coles, 108 A. 826

(Pa. 1919), the appellant and three compatriots entered a bar and began

acting recklessly with the firearms they were carrying; of note, the appellant

pointed a loaded firearm at the bartender and attempted to pull the trigger,

but the firearm would not fire. One of the appellant’s friends then began to

fire his gun, shooting at least one person.   Appellant and his friends fled,

and approximately 15 minutes later, killed a man who interfered with their

escape. At trial, evidence of the incidents in the bar was admitted over the



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appellant’s objection.   Our Supreme Court found that the res gestae

exception applied to allow evidence of the reckless conduct in the bar,

reasoning as follows:

                 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.

                                   ***

                  The testimony in the present case touching the
           earlier occurrence in the saloon, although it disclose
           an offense there committed by the appellant and his
           associates other than the offense with which they
           were charged in the indictment, was not offered to
           prove the commission of the earlier offense, but was
           offered as part of the res gestae of the crime of
           which he was charged and convicted, the felonious
           killing of George Williams within 15 minutes at most
           after the occurrence at the saloon and at a place
           they reached in their flight to escape arrest about a
           city square distant. The killing of Williams followed
           almost immediately upon the arrival of the defendant
           and his three associates at the place where they
           came together. The sudden arrival of four men at
           that point with no ostensible object or purpose, the
           arrest of the flight by the intervention of the officer
           of the law, who was immediately killed thereafter by
           one of them while he was attempting to disarm
           another—these facts and others equally pertinent
           having a direct bearing on the question of
           defendant's guilt would have been left wholly
           unexplained on the trial except as the testimony in
           regard to the occurrence at the saloon had been
           admitted. The two offenses were shown to have
           been so related in point of time and distance




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            separating them as to make the earlier occurrence
            part of the res gestae attending the murder.

Id. at 826-28.

      It is clear in these cases that evidence of the prior bad acts helped to

establish the “chain or sequence of events which formed the history of the

case” and that they were part of the natural development of the crime.

Commonwealth v. Walker, 656 A.2d 90, 99 (Pa. 1995). However, in the

present case, the crimes at issue do not provide a history or sequence of

events that help to understand the natural development of each other. The

theft of Wimer’s wallet does not, in any way, complete the story of Peeples’s

assault on Bickel. Conversely, evidence regarding the assault is not relevant

to the history or natural development of the case regarding the theft of

Wimer’s wallet.    That is to say, nothing that occurred prior to Peeples

accepting a ride from Wimer bears any relevance as to the commission of

the theft of Wimer’s wallet; Peeples could have been looking for a ride back

to Franklin for any number of reasons, none of which would be at all relevant

to the “natural development of the case” regarding the theft of the wallet.

The res gestae exception does not apply in this case, as the trial court erred

in concluding otherwise.

      Nonetheless, we conclude that Peeples is not entitled to relief.      As

stated above, “the critical consideration” for our review “is whether [Peeples]

was prejudiced by the trial court's decision not to sever.” Commonwealth




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v. Mollett, 5 A.3d at 305. Peeples has not alleged, much less proved, that

“the evidence tended to convict appellant only by showing his propensity to

commit crimes, or because the jury was incapable of separating the

evidence or could not avoid cumulating the evidence.” Boyle, 733 A.2d at

637.     Further, we can discern no such prejudice.      The record reveals

abundant evidence of Peeples’s guilt as to both crimes that would support

his convictions if the charges had been severed.         For instance, Bickel

testified that after he and Peeples were left behind at the bar by their other

friends, Peeples instigated the fight between them.    N.T., 5/13/13, at 54.

Bickel further testified that he grappled Peeples to the ground, tried to calm

him down, and released Peeples after Peeples agreed not to continue to

fight.   Id. at 54-57.    Bickel testified that immediately upon releasing

Peeples, Peeples “sprang up immediately” and hit him in the face with the

pocket knife that Peeples was known to carry. Id. at 57. Bickel testified

that Peeples slashed him “from the corner of [one] eye all the way down to

the tip of [his] nose.”   Id. at 58.    The knife nicked Bickel’s eyeball and

damaged his nose to the point that it required a plastic surgeon to

reassemble. Id. at 58, 62-63. Linda Beach (“Beach”) was another member

of the group with Bickel and Peeples that went to the bar together on the

night in question.   Id. at 13.   She testified that their friend Eric Smith

(“Smith”) drove everyone to the bar in his van.       Id. at 14, 19.   Beach

further testified that Peeples left the bar before the rest of the group, and



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when the remaining members exited the bar, Peeples had absconded with

Smith’s van. Id. at 20. When Peeples returned, he and Smith argued over

the fact that Peeples had taken the van.      Smith ultimately drove away,

leaving both Peeples and Bickel in the bar’s parking lot. Id. at 20-24. As

Smith drove to Franklin, another member of the group received a phone call.

Id. at 24. Beach recognized Bickel’s voice as the caller and heard him say,

“Why’d you do that, [Peeples]?” before the phone went dead. Id. at 24-25.

Bickel called Smith’s phone shortly thereafter, and he told Smith that

Peeples had just stabbed him and asked Smith to pick him up. Id. at 25.

With regard to the theft of Wimer’s wallet, Peeples admits stealing it,

attempting to use her debit and credit cards at the grocery store, and then

discarding them in the parking lot. N.T., 5/14/13, at 137.3     These events

are so distinct that there is little chance that the jury cumulated the

evidence or could not separate it.   Further, the evidence of bad acts was

limited only to the crimes for which Peeples was on trial; as such, there is

little risk that Peeples was convicted solely based upon a perceived

propensity to commit crimes. Because Peeples has failed to establish that

he was prejudiced by the trial court’s failure to sever the charges, his claim

does not succeed.    Commonwealth v. Uderra, 706 A.2d 334, 339 (Pa.

1998) (holding that the failure to demonstrate prejudice by the denial of


3
  Indeed, in his brief on appeal, Peeples states that he always admitted his
guilt as to the theft and never intended to defend against the theft related
charges. Appellant’s Brief at 10.


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motion to sever coupled with overwhelming evidence of guilt precludes

finding of abuse of discretion by the trial court).

      Judgment of sentence affirmed.

      Mundy and Fitzgerald, JJ. concur in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/20/2014




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