J-A18020-18

                                2018 PA Super 250

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellant             :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 JAMES BIDWELL                            :   No. 16 EDA 2018

             Appeal from the Order Entered December 15, 2017
    In the Court of Common Pleas of Monroe County Criminal Division at
                      No(s): CP-45-CR-0002259-2016


BEFORE:    STABILE, J., STEVENS*, P.J.E., and STRASSBURGER**, J.

OPINION BY STEVENS, P.J.E.:                    FILED SEPTEMBER 11, 2018

      The Commonwealth of Pennsylvania appeals from the Order entered on

December 15, 2017, by the Honorable Margherita Patti Worthington, Court of

Common Pleas of Monroe County, granting in part and denying in part its

pretrial motion in limine. Following a careful review, we affirm.

      The learned trial court summarized the relevant facts and procedural

history according to the Commonwealth as follows:

             On June 2, 2011, at 7:39 p.m., Mr. Todd Bachman placed a
      9-1-1 call to Monroe County Control Center reporting the
      discovery of the body of Kristin Wagner ("Victim"), hanging from
      an electrical heating wire tied to a refrigeration unit that was
      located in a trailer at 860 Crowe Road, Stroud Township. The
      trailer was located in a scrap yard operated by Christian
      Containers, LLC, a company owned by [Appellee]. Within minutes
      of the 9-1-1 call, members of the Stroud Area Regional Police
      Department and emergency medical service personnel arrived and
      observed the scene and body.
             The Victim's body presented with signs of livor mortis, a
      condition indicative that death had occurred several hours prior to
      its discovery. The condition had not yet set, thus narrowing the

____________________________________
* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
J-A18020-18


     time of death to not more than a few hours prior to discovery. The
     position of the Victim's body was such that the Victim's feet were
     resting on the floor with her knees bent and her hands free at her
     side. Heating wire was looped around the Victim's neck, but was
     not fashioned into a noose or otherwise twisted around her neck.
     The ligature had caused a well-defined furrow around the frontal
     and upper areas of the Victim's neck. The ligature did not appear
     to cause any abrasions or otherwise indicate that a struggle or
     involuntary movements had occurred prior to death. The Victim's
     face was not swollen or discolored, as is commonly seen in victims
     of hanging or ligature strangulation.
            Alongside the body was a metallic box upon which, in the
     dust, prints from a work boot were identified. The pattern of the
     work boot prints were not made by the footwear of the Victim.
     There was also a coating of white substance, which was later
     identified as paint, visible on the Victim's right shoulder and both
     arms.
            A cursory autopsy revealed there was no evidence of injury
     to the internal structures of the Victim's neck, no petechial
     hemorrhaging, and no discoloration of the face above the ligature.
     While the responding paramedics viewed the death as suspicious,
     the original investigators and the coroner concluded that the
     Victim committed suicide by hanging.
            On June 5, 2014, Richard Gerber contacted the authorities
     and advised them that [Appellee] admitted to him that he had
     killed the Victim in the office trailer of the Crowe Street container
     yard by “choking her out” and thereafter hung her body in a
     refrigerated trailer to make it appear as though she had
     committed suicide. Based on Mr. Gerber's information, police
     initiated an investigation into the Victim's death. The investigation
     revealed that [Appellee] was never sought for questioning by the
     original investigators despite his owning the business where the
     Victim's body was discovered, engaging in an extra-marital affair
     with the Victim, and being the last person to see the Victim alive.
            [Appellee] and the Victim were engaged in a sexual
     relationship beginning in May 2010. The relationship included
     [Appellee]     supplying     the     Victim    with   quantities    of
     methamphetamine and Percocet pills. During the fall of 2010, the
     Victim provided members of the Pocono Mountain Regional Police
     Department and Pennsylvania State Police with information about
     [Appellee] trafficking in large quantities of methamphetamine.
     Soon thereafter, acting in part upon the information supplied by
     the Victim, [Appellee] was subject to a traffic stop in which a
     quantity of methamphetamine was located. [Appellee] suspected

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     that the Victim informed the police about his drug trafficking and
     expressed his suspicion to his wife, Jennifer Bidwell. Less than a
     week after the Victim's death, [Appellee] was arrested for drug
     trafficking, based in part on the information previously supplied
     by the Victim.1
            On June 2, 2011, the day of the Victim's death, Veronica
     Murray, owner of the Cinder Inn, a bar located on Crowe Road,
     saw the Victim and [Appellee] at the bar from approximately
     12:00 p.m. to 3:00 p.m. The Victim and [Appellee] consumed
     alcohol and acted in a sexual manner toward one another. During
     this time, the Victim placed a phone call to her father, Donald
     Wagner, Sr. Cellular telephone records show that the phone call
     began at 3:55 p.m., lasted 20 minutes, and ended at
     approximately 4:15 p.m. [Appellee’s] cellular telephone records
     show that he remained in the immediate vicinity of Crowe Road
     until approximately 5:09 p.m. on the day of the Victim's death.
            At approximately 5:20 p.m. [Appellee] telephoned Jennifer
     Bidwell. The call lasted for approximately 9 minutes. During the
     call, [Appellee] was crying and said things such as “she's hanging”
     “she killed herself” and she “died.” [Appellee] clarified that he was
     referring to the Victim. [Appellee] then called Donald Wagner at
     7:28 p.m. This call lasted approximately 10 minutes, during which
     [Appellee] informed Mr. Wagner that the Victim was dead. The
     Victim's body was discovered by Mr. Bachman at 7:39 p.m., who
     called 9-1-1.
            After discovering the Victim's body and calling 9-1-1, Mr.
     Bachman called his immediate supervisor, James Smith, to report
     the death and Mr. Smith called [Appellee] at 7:41 p.m. After being
     told by Mr. Smith that the Victim's body had been discovered at
     his Crowe Road container yard, [Appellee] claimed to be in
     Philadelphia and unable to return to the scene.
            [Appellee] has made several contradictory statements
     regarding the circumstances of the Victim's death and his
     whereabouts at that time. [Appellee] claimed to employees and
     associates that he was in Philadelphia at the time of the death;
     that he left the Victim for a period of time and returned to find her
     dead; that the Victim left a suicide note; and implied that the
     Victim's 3:55 p.m. conversation with her father motivated her to
     commit suicide. Additionally, [Appellee] relayed to Jennifer
     Bidwell that the Victim needed money, so he agreed to allow her
     to paint his office trailer. [Appellee] stated to Mrs. Bidwell that
     while the Victim was painting the trailer he told the Victim he was
     reconciling with his wife and could not be there for her anymore
     but that God would be there. [Appellee] relayed that the Victim

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J-A18020-18


     stated "f*** God" and had an evil look in her eye and that this
     was the last time he saw the Victim.
           The Victim's family and friends maintain that she would not
     have committed suicide. The Victim's calendar for May and June
     2011 contained multiple entries for events involving her children
     and other planned events. The Victim did not display any signs of
     depression at the time. On June 2, 2011, Ms. Murray, owner of
     the Cinder Inn, observed the Victim as appearing happy and
     outgoing, speaking of her children, and sharing photographs.
           On July 26, 2016, the Seventh Monroe County Investigating
     Grand Jury issued a Presentment at Investigation No. 6-2014 that
     recommended [Appellee] be arrested for violating Section 2501 of
     the Pennsylvania Crimes Code and additional sections of the
     Crimes Code. By Order date July 28, 2016, this [c]ourt, as
     Supervising Judge of the Investigating Grand Jury, accepted the
     Presentment and referred the matter to the Attorney for the
     Commonwealth.
           [Appellee] was charged by Criminal Information on
     November 14, 2016, with Criminal Homicide.2 On November 15,
     2016, the Commonwealth filed a Motion for Status Conference. On
     November 17, 2016, we scheduled a status conference with
     Counsel. On November 21, 2016, the Commonwealth filed a
     Motion to Continue Scheduling Conference, which was granted.
     The status conference was rescheduled to November 29, 2016. At
     the status conference both parties were directed to file all pretrial
     motions on or before July 21, 2017.
           The Commonwealth filed the present Motion in Limine on
     July 12, 2017. [Appellee] filed an Answer to the Commonwealth's
     Motion in Limine on August 15, 2017, and a Supplemental
     Memorandum of Law on October 10, 2017.
           A hearing on the Commonwealth's motions was held on
     September 15, 2017, wherein the Commonwealth introduced a
     compact disc containing the following evidence:

          1. A folder marked "Alyssa Benak" containing her audio
          -recorded interview with law enforcement, and
          corresponding transcript, on February 28, 2017;
          2. A folder marked "Danielle Sickle" containing a report
          of her interview with law enforcement on January 30,
          2017, an audio recording of same, a Pennsylvania State
          Police incident report dated November 23, 2014, and a
          Stroud Area Regional incident report dated November
          23, 2014;


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J-A18020-18


         3. A folder marked "Denise Bidwell" containing her audio
         –recorded interview with law enforcement, and
         corresponding transcript, on August 23, 2016, and her
         medical records from St. Mary's Medical Center dated
         March 13, 2006;
         4. A folder marked "Jennifer Bidwell" containing her
         audio–recorded interview with law enforcement, and
         corresponding transcript, on February 5, 2016, a Yahoo
         email message from [Appellee] dated January 16, 2011,
         a Yahoo email message from [Appellee] dated June 1,
         2011, a "Complaint for Support" from Monroe County
         Case No. 126 CV 2011, a Pocono Mountain Regional
         Police incident report dated June 13, 2010, and a "Note
         to File" dated September 19, 2017;
         5. A folder marked "Kristin Wagner" containing audio
         clips of recorded telephone conversations between the
         Victim and [Appellee], and corresponding transcripts,
         various Facebook pictures and posts from the Victim's
         account, various Facebook and Yahoo messages
         between the Victim and [Appellee], and the Victim's
         audio-recorded statements to Pocono Mountain Regional
         Police on November 17, 2010;
         6. A folder marked "Research Motion in Limine"
         containing various opinions and briefs from unrelated
         matters, as well as articles and legislation addressing
         issues raised in the Commonwealth's Motion in Limine;
         7. A folder marked "Soliciting Prostitutes" containing
         various Yahoo emails sent by [Appellee];
         8. Docket statements from Commonwealth v. Bidwell,
         Case No. 1993 CR 2015 and Commonwealth v. Bidwell,
         Case No. 2816 CR 2011;
         9. A report of Kenya Hadlock's interview with law
         enforcement on January 20, 2015;
         10. A report of Clarke Kitchell's interview with law
         enforcement on March 10, 2015;3
         11. A report of Nancy Reinacher's interview with law
         enforcement on January 6, 2015; and
         12. A transcript of Richard Gerber's interview with law
         enforcement on June 5, 2014.

         On October 24, 2017, [Appellee] filed a Motion in Limine
     seeking the exclusion of the Commonwealth's expert, Michael
     Lucas, or, in the alternative, a Frye hearing. Upon consideration
     of [Appellee’s] Motion in Limine we Ordered Counsel for the

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J-A18020-18


      Commonwealth to file an answer and memorandum of law in
      support of their position on or before November 13, 2017. Said
      answer and memorandum were filed by the Commonwealth on
      November 13, 2017.
       __
      1See Commonwealth v. Bidwell, Case No. 220 CR 2011.
      2 18 Pa.C.S.A. § 2501(a). We note that the Indictment and

      Criminal Complaint from the Grand Jury include one charge each
      for Tampering with or Fabricating Physical Evidence (18 Pa.C.S.A
      § 4901(1)) and Hindering Apprehension or Prosecution (18
      Pa.C.S.A. § 5105(A)(3)). These charges were not included in the
      Criminal Information.
      3 This file is inaccurately titled “Lary Kitchel Interview” on the

      compact disc marked C-1.

Trial Court Opinion, filed 12/15/17, at 1-7.

       A hearing was held on the Commonwealth’s Motion in Limine on

September 15, 2017. Following a review of the evidence submitted at the

hearing, the record, the parties’ briefs, and the oral arguments of counsel, the

trial court granted in part and denied in part the Commonwealth’s Motion. The

trial court issued a forty-five page Opinion in Support of its Order which reads

as follows:

                                  ORDER
      AND NOW, this 15th day of December, 2017, after consideration
      of the Commonwealth’s and [Appellee’s] Motions in Limine, we
      hereby order the following:

      1. The Commonwealth’s Motion to admit evidence of [Appellee’s]
      alleged drug trafficking is GRANTED in part and DENIED in part
      consistent with this Court's Opinion;
      2. The Commonwealth’s Motion to admit evidence of [Appellee’s]
      drug use is DENIED;
      3. The Commonwealth’s Motion to admit 404(b) evidence of
      [Appellee’s] violent behavior towards women is DENIED;
      4. The Commonwealth’s Motion to admit evidence of [Appellee’s]
      infidelity is GRANTED;



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       5. [Appellee’s] Motion to exclude testimony of Michael Lucas is
       DENIED.

       On January 3, 2018, the Commonwealth filed a timely notice of appeal

along with a Statement in Compliance with Pa.R.A.P. 311(d) wherein it

certified that the trial court’s December 15, 2017, Order either will terminate

or substantially handicap the prosecution of Appellee.1 The trial court directed

the Commonwealth to file a concise statement of the errors complained of on

appeal, and the Commonwealth filed the same on January 4, 2018.

        In its brief, the Commonwealth presents the following Statement of the

Questions Presented:

                1. Does the denial of the Commonwealth’s Motion in
       Limine constitute reversible error, where, the lower court’s
       reasoning rests upon basic mistake, including a misunderstanding
       of the nature of the wounds observed on the victim’s body at
       autopsy; where that mistake was the basis of the lower court’s
       conclusion that the circumstances of [Appellee’s] other acts of
       violence toward women are not sufficiently similar or logically
       connected to the victim for proof of motive, intent, method, and
       to rebut the defense of suicide?

               2. Did the lower court err by ruling that evidence of
       [Appellee’s] drug use and its effect on him is barred as irrelevant
       where: a) the record shows that [Appellee] and victim frequently
       ingested drugs together; (b) appeared under the influence of
       drugs and alcohol on the day of the murder; (c) [Appellee] was
       under the influence of drugs and/or alcohol during his prior
       assaults on the victim and other women, and; (d) [Appellee]
       would become paranoid while under the influence of drugs and
____________________________________________


1In light of this procedural posture, we may review this appeal. See Pa.R.A.P.
311(d); see also Commonwealth v. Gordon, 543 Pa. 513, 517, 673 A.2d
866, 868 (1996) (holding that the denial of a motion in limine seeking to admit
evidence falls within the rule that the Commonwealth may appeal pretrial
orders which terminate or substantially handicap the prosecution).

                                           -7-
J-A18020-18


      alcohol; all as relevant to show possible motive and intent for the
      murder and give context into the relationship between [Appellant]
      and victim, as part of the chain or sequence of events that form
      the history of the case?

Commonwealth’s Brief at 4. In considering these claims, we are mindful of

the following:

      Admissibility of evidence is within the sound discretion of the trial
      court and will not be disturbed absent an abuse of discretion. See
      Commonwealth v. Arrington, 624 Pa. 506, 86 A.3d 831, 842
      (2014). “An abuse of discretion is not merely an error of
      judgment, but is rather the overriding or misapplication of the law,
      or the exercise of judgment that is manifestly unreasonable, or
      the result of bias, prejudice, ill-will or partiality, as shown by the
      evidence of record.” Commonwealth v. Sitler, 144 A.3d 156,
      163 (Pa. Super. 2016) (en banc ) (citation omitted).
             Relevance is the threshold for admissibility of evidence. See
      Commonwealth v. Cook, 597 Pa. 572, 952 A.2d 594, 612
      (2008). “Evidence is relevant 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. Drumheller, 570
      Pa. 117, 808 A.2d 893, 904 (2002) (citation omitted). “All relevant
      evidence is admissible, except as otherwise provided by law.”
      Pa.R.E. 402.
             One such law that limits the admissibility of relevant
      evidence is Rule 404. Under Rule 404, evidence of “a crime,
      wrong, or other act” is inadmissible “to prove a person's character
      in order to show that on a particular occasion the person acted in
      accordance with the character.” Pa.R.E. 404(b)(1). However, this
      evidence may be admissible when relevant for another purpose,
      such as “proving motive, opportunity, intent, preparation, plan,
      knowledge, identity, absence of mistake, or lack of accident.”
      Pa.R.E. 404(b)(2). “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)(2).

                                     ***

           [m]erely crossing the threshold of demonstrating that
           other-acts evidence was probative of some Rule
           404(b)(2) category does not, by itself, demonstrate

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J-A18020-18


          admissibility. “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)(2) (emphasis added). In this context, “‘[u]nfair
          prejudice’ means 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.”
          Commonwealth v. Dillon, 592 Pa. 351, 925 A.2d 131,
          141 (2007).
            Often cited in conjunction with this balancing test, as
     invoked by the trial court in this case, is our Supreme Court's
     elucidation on the topic of prejudice in Commonwealth v. Lark,
     518 Pa. 290, 543 A.2d 491 (1988):
          Not surprisingly, criminal defendants always wish to
          excise evidence of unpleasant and unpalatable
          circumstances surrounding a criminal offense from the
          Commonwealth's presentation at trial. Of course, the
          courts must make sure that evidence of such
          circumstances have some relevance to the case and are
          not offered solely to inflame the jury or arouse prejudice
          against the defendant. The court is not, however,
          required to sanitize the trial to eliminate all unpleasant
          facts from the jury's consideration where those facts are
          relevant to the issues at hand and form part of the
          history and natural development of the events and
          offenses for which the defendant is charged, as appellant
          would have preferred.
     Id. at 501.
                 Naturally, as the Lark Court suggests, relevant
          evidence of [Lynn's] culpability for the charged offenses
          should not be excluded merely because it tends to
          demonstrate his guilt. However, our Supreme Court has
          also advised that, “to be admissible under the [motive]
          exception, evidence of a distinct crime, even if relevant
          to motive, ‘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. Roman, 465 Pa.
          515, 351 A.2d 214, 218–219 (1976) (emphasis added).
          Thus, we must not forget that the rule being applied is
          that other-acts evidence is by default inadmissible
          unless a Rule 404(b)(2) category or similar justification
          applies, and the probative value of that evidence
          outweighs its potential for prejudice. The burden is on

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J-A18020-18


         the party seeking admission to demonstrate the
         applicability of the exception to the general rule; in this
         case, that burden fell on the Commonwealth. There is no
         presumption of admissibility of other-acts evidence
         merely because it is somewhat relevant for a non-
         propensity purpose.
     Lynn III, No. 2171 EDA 2012, at 29–30, 2015 WL 9320082, at
     *14 (emphasis in original).

Commonwealth v. Lynn, 2018 WL 3153472, at *3-5 (Pa.Super. filed June

28, 2018).

     The Commonwealth initially asserts evidence of Appellee’s alleged

violence toward four other women is relevant to prove motive, intent and

method herein and to rebut the defense that the Victim committed suicide.

Commonwealth’s Brief at 31. The Commonwealth reasons:

             [t]hese violent acts include attacking women with his bare
     hands, while facing them; attacking them from the front, clutching
     their throat and neck areas, choking and strangling them. All the
     women were involved in either sexual relationships or situations
     with [Appellee]. The triggering events vary only in insignificant
     details but have as common elements [Appellee’s] need for
     control, submission to his desires, and viewing any challenge to
     his authority as a threat to his masculinity.
                                      ***
             Here, the evidence shows [Appellee] used violence when he
     did not get his way or the women with whom he was in sexual
     situations opposed him or otherwise did not comply with his
     desires. He was seen by one witness grabbing the victim by the
     throat while facing her and threatened to kill her. He engaged in
     a pattern of controlling and jealous behavior toward women with
     whom he was in a relationship. All of the women were choked
     from the front by [Appellee] who became violent when they would
     not comply with his wishes. Drugs and/or alcohol was involved in
     all of the assaults. And significantly, none of the assaulted women
     showed physical signs of injury.

Commonwealth’s Brief at 31, 35.


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      The trial court excluded the other-acts evidence reasoning that it was

“improper propensity evidence of Appellee’s prior, dissimilar assaults on other

women.” See Statement Pursuant to Pa.R.A.P. 1925(a) at 2 (citing Opinion,

filed 12/15/17, at 22-35). The trial court stressed that in doing so, it “did not

exclude any prior alleged attacks on [the Victim]- only prior alleged attacks

on Denise Bidwell, Jennifer Bidwell, Alyssa Benek, and Danielle Sickle. . . . To

clarify, we did not, nor do we believe we should, exclude [Appellee’s] alleged

prior attack on [the Victim] as evidenced by Lary Kitchell’s statement to

police.” Id. (emphasis in original) (citation to record omitted).

      The trial court meticulously detailed and analyzed the proffered

testimony of each woman as gleaned from the Commonwealth’s various

exhibits and ultimately determined it to be inadmissible as follows:

      Defendant's Alleged Tumultuous and Violent Relationships
      with Females

             The Commonwealth proffers witness accounts that
      [Appellee] assaulted Denise Bidwell, Jen[n]ifer Bidwell, Alyssa
      Benek, and Daniell Sickle in a manner consistent with the later,
      fatal assault upon the Victim, Kristen Wagner. The Commonwealth
      offers this evidence for several reasons: proving the motive of
      [Appellee], proving [Appelle’s] identity as the perpetrator of the
      crimes against Victim, and showing the absence of any suicide of
      Victim. See Com.'s Mot., ¶¶ 7-10.
             As a preliminary matter, as the Superior Court noted in
      Commonwealth v. Weakley, a court must necessarily look for
      similarities in a number of factors when comparing the methods
      and circumstances of other crimes sought to be introduced
      through Rule 404(b), including:
                  (1) the manner in which the crimes were
                  committed; (2) weapons used; (3) ostensible
                  purpose of the crime; (4) location; and (5) type of
                  victims. Remoteness in time between the crimes

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J-A18020-18


                is also factored, although its probative value has
                been held inversely proportional to the degree of
                similarity between crimes.

     Commonwealth v. Weakley, 972 A.2d 1182, 1189 (Pa. Super.
     2009) (internal citation omitted).
            To show a common plan or scheme, crimes must be so
     related that proof of one tends to prove the others.
     Commonwealth v. Elliott, 700 A.2d 1243, 1249 (Pa. 1997),
     abrogated on other grounds by Commonwealth v. Freeman, 827
     A.2d 385 (Pa. 2003). Similarities cannot be confined to
     insignificant details that would likely be common elements
     regardless of the individual committing the crime. See
     Commonwealth v. Hughes, 555 A.2d 1264, 1283 (Pa. 1989).
     Evidence of a common scheme can establish any element of a
     crime, such as identity and mental state, so long as the scheme
     is not being used just to establish a propensity of the defendant
     to commit crimes. See Commonwelath v. Miller, 664 A.2d 1310,
     1318 (Pa. 1995), abrogated on other grounds by Commonwealth
     v. Hanible, 836 A.2d 36 (Pa. 2003).
            In determining if prior incidents show a common plan or
     scheme, the [c]ourt should focus not just on a defendant's actions,
     but on the factual circumstances of the incidents in their entirety.
     See Commonwealth v. O'Brien, 836 A.2d 966, 970-71 (Pa. Super.
     2003). Stated differently, the similarities of the incidents need not
     lay solely in the perpetrator's acts, but in the shared similarities
     in the details of each crime. See Commonwealth v. Newman, 598
     A.2d 275, 278 (Pa. 1991).
            In Elliott, the Pennsylvania Supreme Court found that a
     common plan or scheme existed when: the defendant approached
     three different women of similar age and ethnicity, outside of the
     same night club, at a similar time of night; the defendant beat or
     choked each of the women, or both, after getting the women
     alone; and the defendant's assaults all had sexual overtones.
     Elliott, 700 A.2d at 1249-50. In Miller, the Supreme Court found
     that a logical connection establishing a common scheme existed
     when: the defendant lured three women with similar physical
     characteristics to his vehicle; took those women to remote areas
     for sexual purposes against their will; and brutally beat those
     women in a similar manner, attempting to cause or actually
     causing the deaths of those women. Miller, 664 A.2d at 1318.
            In Commonwealth v. Ross, the Superior Court found that
     the defendant's crimes showed that the defendant was a domestic
     abuser of women with whom he was involved in long term

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J-A18020-18


     relationships. Ross, 57 A.2d at 104. However, this scheme of
     domestic abuse was insufficient to show a common plan or
     scheme relevant to the murder on trial in Ross because the
     murder on trial was far more brutal than the previous instances of
     abuse.6 Id. Furthermore, the use of biting and duct tape in the
     murder was not present in the other instances of domestic abuse.
     Id.
            In Commonwealth v. Einhorn, 911 A.2d 960 (Pa. Super.
     2006), the Superior Court found that a common plan or scheme
     existed when a series of the defendant's diary entries showed: the
     defendant's particular beliefs about the necessity of ending a
     relationship with violence; a woman ending a relationship with the
     defendant motivated all three of his prior attacks; that the
     defendant claimed he loved each woman; that the defendant
     wrote about his violent feelings in his diary; and that the
     defendant's attacks became increasingly more severe in their
     violence after each break-up. Einhorn, 911 A.2d at 968.
            The concept of proof of identity is similar but distinct from
     the concept of showing common scheme. See id. (finding that
     evidence of the defendant's prior assaults helped establish a
     common plan or scheme, which was relevant in establishing the
     defendant's identity as the victim's murderer). To show identity,
     the prior crimes and the case at bar must have such a logical
     connection that proof of the prior crimes naturally shows the
     accused committed the crime being tried. See Commonwealth v.
     Levanduski, 907 A.2d 3, 17 (Pa. Super. 2006). Stated another
     way, the crimes must have such a correlation in their details that
     proof that a person committed those crimes makes it very unlikely
     that anyone else committed the crimes at trial. See Weakley, 972
     A.2d at 1189.
            "Here, much more is demanded than the mere repeated
     commission of crimes of the same class, such as repeated
     burglaries or thefts. The device used must be so unusual and
     distinctive as to be like a signature." Ross, 57 A.3d at 102
     (emphasis in original) (quoting Commonwealth v. Shively, 424
     A.2d 1257, 1259 (Pa. 1981)).
            Different end results for each crime in a set of crimes can
     be significant, but are not necessarily determinative in whether
     two crimes constitute a sufficient logical connection to prove
     identity of the perpetrator. See Weakley, 972 A.2d at 1190
     (finding a bad act where a murder resulted, and a bad act where
     a murder did not result, were indistinguishable because the non-
     murdered victim was threatened with murder, but was afforded
     the opportunity to flee when an alarm system went off).

                                    - 13 -
J-A18020-18


            In Ross, the Superior Court said the testimony of the three
     proposed witnesses only established a common thread of physical
     and/or sexual assaults with a foreign object, and this was
     insufficient for a crime sufficiently unique to signify an identifying
     signature. Ross, 57 A.3d at 102. The three witnesses' incidents in
     Ross were distinguishable from each other in that: each incident
     had a different triggering cause, there were differences in the
     foreign object the defendant used, there were differences in
     whether penetration was attempted with the foreign object, and
     the defendant only forced one of the witnesses to engage in oral
     and anal sex. Id. at 102-03.
            Further, in Ross, the past crimes committed against the
     three witnesses were distinguishable from the case being
     considered at trial. For the three prior witnesses, the defendant
     had a long-standing, cohabitating relationship (i.e. wife, girlfriend,
     fiancée) with the victims before committing the acts of domestic
     violence. Id. at 103. In the case at trial, the defendant had only
     just met the victim that night. Id.; but cf, Weakley, 972 A.2d at
     1190 (stating that a previous crime could be used to show identity
     because the crime had a similar "template" to the crime on trial,
     even though the first crime was committed against an
     acquaintance and the second crime was committed against an
     unfamiliar victim). Also, though the acts of domestic violence
     committed against the three witnesses were abhorrent, they did
     not rise to the level of brutality of the crime before the Superior
     Court.7 Ross, 57 A.3d at 103.
            To show motive or intent for a killing, the evidence of the
     prior acts must give sufficient grounds for believing the crime at
     trial grew out of the prior facts and circumstances, or the prior
     facts and circumstances caused the crime at trial. See
     Commonwealth v. Schwartz, 285 A.2d 154, 158 (Pa. 1971),
     abrogated on other grounds by Commonwealth v. DeMarco, 809
     A.2d 256 (Pa. 2002). The mere identification of similarities
     between prior bad acts and the crime at issue cannot, on its own,
     establish motive. See Ross, 57 A.3d at 101.
            In Schwartz, a case where the defendant shot and killed a
     police officer, the Pennsylvania Supreme Court found that the trial
     court did not abuse its discretion in deciding the defendant's prior
     killing of a police officer did not imply a logical probability the
     defendant "would shoot a policeman at every opportunity." See
     Schwartz, 285 A.2d at 158.
            In Ross, the Superior Court stated that the testimony of
     three female witnesses did not establish a set of facts sufficient to
     show that the crime on trial "grew out of or was in any way caused

                                    - 14 -
J-A18020-18


     by the prior set of facts and circumstances." See Ross, 57 A.3d at
     101 (internal citation omitted). The Commonwealth argued that
     the three witnesses' testimony "demonstrated that women in [the
     defendant's] presence risked being physically and/or sexually
     assaulted if they were unreceptive to his sexual advances." Id.
     One witness testified she was assaulted for being receptive to the
     defendant's advances. See id. Another witness testified she was
     assaulted after looking in the defendant's bag, rather than after
     she refused his sexual advances. Id. The third witness testified
     that the defendant was abusive during sex, but did not imply this
     was because of the witness's lack of receptiveness. Id. The
     Superior Court found that this testimony did not support the
     Commonwealth's proposed strain of commonality, and thus did
     not establish motive for the defendant's subsequent crime.8 Id.
            Motive and intent are closely related to the defense of lack
     of accident. To prove lack of accident, a party may show that
     because there is evidence of motive or intent, that evidence also
     shows lack of accident. See, e.g., Commonwealth v. Billa, 555
     A.2d 835, 840 (Pa. 1989); Commonwealth v. Travaglia, 467 A.2d
     288, 297 (Pa. 1983); Commonwealth v. Norman, 549 A.2d 981,
     984 (Pa. Super. 1988).
            At least in a murder case, the defense need not raise lack of
     accident before the prosecution puts on evidence of lack of
     accident. See Commonwealth v. Boczkowski, 846 A.2d 75, 88 (Pa.
     2004). Because there are only a limited number of ways that an
     individual can die (suicide, natural causes, accident, homicide),
     and the Commonwealth must prove homicide beyond a
     reasonable doubt, part of the Commonwealth's case-in-chief can
     involve excluding the possibility of death by a manner other than
     homicide. See id.
            In order to properly evaluate the alleged bad act evidence
     we first need to understand the proposed testimony. The proffered
     testimony of Denise Bidwell, Jennifer Bidwell, Alyssa Benek, and
     Daniell[e] Sickle, according to the Commonwealth's exhibit, is as
     follows:
            Denise Bidwell was [Appellee’s] first wife. Her proposed
     testimony9 references an abusive relationship from the time they
     were teenagers continuing until after their divorce, when
     [Appellee] would force her to have sex with him in exchange for
     child support. Denise Bidwell's testimony specifically chronicled
     one incident where she alleges [Appellee] grabbed her by the
     throat and pushed her against a wall in their home. Her head hit
     the wall knocking a picture to the floor. Due to [Appellee] chocking
     [sic] her, Denise Bidwell stated "I would have been dead, ‘cause I

                                    - 15 -
J-A18020-18


    saw it and I was fading out and I saw it in his eyes, he wanted me
    dead. He was drunk. . . . " [Appellee] only stopped chocking [sic]
    her when their children came out of their rooms. Denise Bidwell
    left the home with their children as [Appellee] attempted to
    apologize for his actions. Denise Bidwell did go to the hospital
    where the medical records reflect she had a bruised larynx. Com.
    Ex. 1, Transcript of Denise Bidwell, pp. 21-24[.]
           [Appellee’s] second wife, Jennifer Bidwell's, proposed
    testimony consists only of a "Note to File" the author of said "note"
    is unknown. The note to file reads:
           During interview with Jennifer Bidwell, (August 29, 2017)
    she disclosed that
                earlier in the marriage with [Appellee], the couple
          had been arguing. The argument had to do with sex.
          [Appellee] grabbed Jennifer's throat. She felt her air
          completely cut off. [Appellee] released her and
          apologized. Jennifer was emotional when recounting the
          episode. Present at interview were Detective Luthcke
          and Serfass, as well as ADA Metzger.
    Com. Ex. 1, Jennifer Bidwell.
           The Offer of Proof for Danielle Sickle's assault at the hands
    of [Appellee] is offered in the form of a memo by Detective
    Lutchke memorializing an interview with Ms. Sickle. The memo
    details how Ms. Sickle responded to an ad on Craig's List for a
    receptionist job at [Appellee’s] business. Ms. Sickle states she
    arrived for an interview with [Appellee] and was lead into his
    office. At some point during the interview, Adam Campbell walked
    into the office and he and [Appellee] did a line of Meth on the
    desk. Mr. Campbell then left the office. [Appellee] then moved
    around the desk next to Ms. Sickle and grabbed her by the arm
    explaining how he gets prostitutes from Craig's List and brings
    them back to his office for sex. Ms. Sickle reports that she kept
    telling [Appellee] "no," but he kept trying to pin her to the couch.
    At one point [Appellee] hit her in the temple which caused her to
    go "loopy." Ms. Sickle stated [Appellee] was trying to rape her and
    he tore her cloths [sic] and began chocking [sic] her first using
    one hand, then using both hands. Ms. Sickle kept fighting with
    [Appellee] as he was trying to turn her around and was able to
    get away. She ran into the junk yard where she saw her car
    blocked in. Ms. Sickle also saw Mr. Campbell, who took her to his
    residence where they spent two days and two nights together. Ms.
    Sickle then returned to [Appellee’s] property in order to get her
    car, but it was locked behind the gate. She called Stroud Area
    Regional Police in an attempt to get the car back. A police report

                                   - 16 -
J-A18020-18


     was submitted by the Commonwealth verifying a call concerning
     ownership of the car. Com. Ex. 1, Transcript of Sickle, pp 1-2.
            Finally, the Commonwealth submitted a transcript of Alyssa
     Benek's Grand Jury testimony as an Offer of Proof of her alleged
     abuse. Ms. Benek was originally in a consensual sexual
     relationship with [Appellee]. A point repeatedly clarified by
     Detective Serfass who initially asked if Benek's sexual relationship
     with Defendant was mutual, to which she replied "Yep." Com. Ex.
     1, Transcript of Alyssa Benek, p. 35. The questioning went on:

         Detective Serfass:   You - you were willing -
         Ms. Benek: Yep.
         Detective Serfass:   -- like you would willingly have -
         Ms. Benek: Yep.
         Detective Serfass:   -- Intercourse with him -
         Ms. Benek: Yep.
         Detective Serfass:   -- or have -
         Ms. Benek: Yep.
         Detective Serfass:   -- relationship with him?
         Ms. Benek: Yep.

     Id. at pp. 35-36.
            Ms. Benek would go on to explain her relationship with
     [Appellee] became nonconsensual after she heard a rumor that
     he attempted to shoot someone. However it does not appear from
     the transcript that Ms. Benek ever expressed her desire to change
     the parameters of her relationship with [Appellee]. Rather, she
     states she just continued to comply and have sex with [Appellee]
     because she felt it was inevitable. Id. at p. 50. Detective Serfass
     then asks: "When-when he would sexually assault you, was there
     ever any - was he physically violent? How - how did he act towards
     you? Ms. Benek responds: "No, it - and it almost became that I
     was just like, there's no way, you know what I mean?" Detective
     Serfass then asked if [Appellee] ever choked her to which Ms.
     Benek replied no. Detective Serfass then asks if [Appellee] ever
     threatened to kill her to which Ms. Benek says "Yeah and my whole
     family."
            Comparing the proposed testimonies of Alyssa Benek,
     Danielle Sickle, Denise Bidwell, and Jennifer Bidwell they have
     basic commonalities but also stark differences. In all four
     incidents, [Appellee] allegedly assaulted the women. See Com.
     Ex. 1. However, in comparing the said proffered testimonies within
     the context of the factors outlined in Weakley, the proposed
     testimony is inadmissible. These Weakley factors, which this

                                    - 17 -
J-A18020-18


     [c]ourt must consider when comparing the facts and
     circumstances of the crimes or acts, include: (1) the manner in
     which the crimes were committed; (2) weapons used; (3)
     ostensible purpose of the crime; (4) location; and (5) type of
     victims. Weakley, 972 A.2d at 1189. Remoteness in time between
     the crimes is also a factor, but its probative value is inversely
     proportional to the degree of similarity between crimes. Id.
            Regarding factors (1) and (3), the two factors we find most
     compelling, three of the four incidents involve sudden, violent
     reactions on the part of [Appellee] in response to the victims'
     failure to agree with [Appellee]. See Com. Ex. 1. The fourth
     incident involved repeated nonviolent sexual abuse. This stands in
     glaring contrast to the Commonwealth's theories in the present
     case. As described above our reading of the Commonwealth's
     argument is that the Commonwealth has alleged two theories for
     why [Appellee] might have murdered the Victim, both of which
     involve premeditation rather than a sudden violent outburst: (1)
     retaliation for the Victim providing incriminating evidence
     concerning [Appellee’s] alleged drug trafficking to the police
     and/or (2) because she was his mistress and he was attempting
     to reconcile with his wife. Com.’s Mot., ¶¶ 11, 17-18. In only two
     of the incidents [Appellee] was reacting to the witnesses'
     resistance to his sexual advances (Ms. Sickle and Ms. J. Bidwell).10
     Id. In one incident [Appellee] was allegedly drunk (Ms. D. Bidwell)
     and another [Appellee] had just snorted methamphetamine (Ms.
     Sickle). Id. In three of the four incidents [Appellee] choked the
     victims (Ms. D. Bidwell, Ms. J. Bidwell, and Ms. Sickle). Id. Three
     of the incidents [Appellee] was in a long term sexual relationship
     (Ms. D. Bidwell, Ms. J. Bidwell, and Ms. Benek). The other victim
     was unknown to [Appellee] at the time of the alleged incident. Id.
            Regarding factor (5), in three of the incidents [Appellee] had
     or was attempting to have a sexual relationship with the victims.
     See id. [Appellee] also had an ongoing sexual relationship with
     Victim in the case at bar.
            Regarding factor (2), [Appellee] attacked three of the
     witnesses at the neck, using his hands, (Ms. D. Bidwell, Ms. J.
     Bidwell, and Ms. Sickle). See id. While in the present case the
     Commonwealth's expert opines that the marks on Victim's neck
     are consistent with pressure from wire. See Com. Expert Report
     of Michael Lucas p. 4. Regarding factor (4), the locations are split
     between [Appellee’s] home and [Appellee’s] place of work. See id.
            When reviewing all the factors some point to commonality,
     such as factor four, while others do not, factors one and three.
     However, this [c]ourt need not weigh every factor equally in

                                    - 18 -
J-A18020-18


     finding commonality among incidents. See Weakley, 972 A.2d at
     1189. Nor is discord required in every Weakley factor in order to
     bar admission. See id. A showing of common plan or scheme
     requires crimes so related that proof of one tends to prove the
     others. Elliott, 700 A.2d at 1249. The [c]ourt should focus on the
     factual circumstances of the incidents in their entirety. See
     O'Brien, 836 A.2d at 970-71. The similarities of the incidents need
     not lay solely in the acts which compose the crime and which the
     perpetrator performed. See Newman, 598 A.2d at 278.
     Insignificant details that would likely be common elements
     regardless of the individual committing the crime do not
     sufficiently show similarity. See Hughes, 555 A.2d at 1283. Thus,
     after our review, disharmony in factors out ways [sic] their
     consistency and the Commonwealth's motion must be DENIED.
            Our current holding is supported by the Pennsylvania
     Supreme Court's recent holding in [] Commonwealth v. Hicks, a
     case arising from this jurisdiction. 156 A.3d 1114 (Pa. 2017). In
     Hicks, the Pennsylvania Supreme Court, in a plurality opinion
     affirming our holding, discussed, and seemingly heightened, the
     commonality needed in admitting 404(b) in a plurality opinion:

         This Court has long recognized an exception to the
         general inadmissibility of other crimes evidence where
         there is a striking similarity-or logical connection-
         between the proffered prior bad acts and the underlying
         charged crime. As early as 1872, in Shaffner v.
         Commonwealth, 72 Pa. 60 (1872), the Court described
         the importance of such a connection as follows:
         It is a general rule that a distinct crime, unconnected
         with that laid in the indictment, cannot be given in
         evidence against a prisoner. It is not proper to raise a
         presumption of guilt, on the ground, that having
         committed one crime, the depravity it exhibits makes it
         likely he would commit another. . . . To make one
         criminal act evidence of another, a connection between
         them must have existed in the mind of the actor, linking
         them together for some purpose he intended to
         accomplish; or it must be necessary to identify the
         person of the actor, by a connection which shows that
         he who committed the one must have done the other.
         Id. at 65. See also Wable, 114 A.2d at 336-37 (1955)
         (there must be "such a logical connection between the
         crimes that proof of one will naturally tend to show that
         the accused is the person who committed the other");

                                   - 19 -
J-A18020-18


         Com. v. Chalfa, 169 A. 564, 565 (1933) (other bad acts
         evidence "must show some logical connection between
         the offenses"). "Sufficient commonality of factors"
         between the other incidents and the underlying crime
         "dispels the notion that they are merely coincidental and
         permits the contrary conclusion that they are so logically
         connected they share a perpetrator." Com. v. Weakley,
         972 A.2d 1182, 1189.
                 In further explaining the logical connection
         standard, this Court has noted “much more is demanded
         than the mere repeated commission of crimes of the
         same class, such as repeated burglaries or thefts. The
         device used must be so unusual or distinctive as to be
         like a signature." Com. v. Rush, 538 Pa. 104, 646 A.2d
         557, 560-61 (1994) (crimes containing uniquely similar
         attributes constitute a signature), quoting McCormick on
         Evidence, § 190 at 449 (2d Ed. 1972) (emphasis
         omitted). See also Com. v. Hughes, 521 Pa. 423, 555
         A.2d 1264, 1282 (1989) (similarities in crimes not
         confined to insignificant details represent a signature);
         Weakley, 972 A.2d at 1189 (identity of perpetrator in
         underlying crime may be proved through other acts
         where they "share a method so distinctive and
         circumstances so nearly identical as to constitute the
         virtual signature of the defendant").

     Id. at 1125-26.

           Justice Saylor in a concurring opinion further addressed the
     specific exception of lack of accident. Justice Saylor begins his
     Opinion by agreeing with the plurality that "majority opinions of
     the Supreme Court have substantially diluted the putatively
     stringent standard" associated with 404(b) evidence. However, he
     notes "the logical relevance of other bad-act evidence so
     employed to demonstrate lack of accident does not depend on as
     great a degree of similarity, as between the charged and
     uncharged misconduct. . . ." Id. at 1131-32. Justice Saylor
     analyzed lack of accident under a test new to Pennsylvania
     Jurisprudence but widely used in other jurisdictions, the doctrine
     of chances:

         To determine whether the asserted theory qualifies [as
         a non-character-based theory of logical relevance], the
         trial judge must trace the entire chain of inferences

                                   - 20 -
J-A18020-18


          underlying the theory. The theory passes muster if the
          inferential path between the item of evidence and a fact
          of consequence in the case does not require any
          inferences as to the defendant's personal, subjective
          character. [T]he proponent does not offer the evidence
          of the uncharged misconduct to establish an
          intermediate inference as to the defendant's personal,
          subjective bad character. Rather, the proponent offers
          the evidence to establish the objective improbability of
          so many accidents befalling the defendant or the
          defendant becoming innocently enmeshed in suspicious
          circumstances so frequently.

     Id. at 1133 (emphasis in original). Even under Justice Saylor's
     "doctrine of chances" and its reduced similarity threshold the
     Commonwealth's contention fails. Justice Saylor suggests the
     evidence is introduced to show the improbability of so many
     accidents befalling the defendant, however, [Appellee] here has
     not been "enmeshed in any other suspicious circumstances" as
     necessitated by the test. Justice Saylor concludes warning "I
     maintain concerns about the power of potentially inevitable
     character inferences associated with other-acts evidence, with
     requiring defendants to effectively defend mini-trials concerning
     collateral matter, and about the efficacy of jury instructions in this
     context." Id. at 1138.
     ___
     6 Against the three witnesses, the defendant committed acts of

     violence punching victims, including: throwing victims against a
     wall, choking victims, oral and anal rape of a victim, and pulling
     victims' hair. Ross, 57 A.3d at 99- 100. In contrast, in the crime
     before the court in Ross, the perpetrator had severely mutilated
     the victim's body, using massive force to tear the muscle wall
     between the sphincter and the vagina. Id. at 103. Further, the
     defendant had left bite marks on the victim's breast, duct -taped
     the victim's hands, head, mouth, and arms, and held the victim's
     body underwater. Id.
     7See footnote 6, supra.
     8 The Superior Court did not definitively state whether testimony

     establishing that women unreceptive to the defendant's sexual
     unreceptive to the advances risked being physically or sexually
     assaulted would be sufficient to show motive, just that the
     testimony in that case did not make such a showing. See Ross, 57
     A.3d at 101 (emphasis omitted).


                                    - 21 -
J-A18020-18


      9  The Commonwealth's Offer of Proof consists of an audio
      recording of Denise Bidwell's interview with Detective Lutchke
      along with a transcript of said interview and hospital records from
      Saint Mary's Hospital in Langhorne, Pa.
      10 It is unknown what triggered the events described by Ms. D.

      Bidwell. See Com. Ex. I. Further, there doesn't seem to be a
      definitive starting point for the Benek assaults as it doesn't appear
      [Appellee] was aware of Benek's reluctance. Id.

Trial Court Opinion, filed 12/15/17, at 22-35.

      Upon our review of the record, given our standard of review, we cannot

find that the trial court abused its discretion in limiting the introduction of

other-acts evidence as it pertained to the aforementioned females.

      This Court has cautioned that a mere identification of similarities

between one’s prior bad acts and the crime at issue does not establish his or

her motive. Rather, there must be a firm basis for concluding that the crime

currently on trial “grew out of or was in any way caused by the prior set of

facts and circumstances.” Commonwealth v. Ross, 57 A.3d 85, 100

(Pa.Super. 2012) (en banc) (quoting Commonwealth v. Martin, 479 Pa. 63,

68-69, 387 A.2d 835, 838 (1978)). As the trial court found, while there were some

similarities between the prior bad acts testimony the Commonwealth seeks to

present at trial and Appellee’s behavior toward the Victim, the proffered

testimony does not establish a motive for the murder of the Victim.

      The Commonwealth’s evidence failed to show that each woman was

assaulted in the same manner or had been involved in a sexual relationship

with Appellee or that Appellee was under the influence of alcohol or drugs at

the time of the encounters with the women. To the contrary, the women’s

                                     - 22 -
J-A18020-18


testimony establishes, at most, the commission of crimes or conduct in the

past “of the same general class,” namely physical and/or sexual assaults.

Their testimony does not evidence any particular distinctive pattern of

behavior by Appellee in that Appellee’s allegedly abusive behavior appears to

have been triggered in each incident by different causes. For instance, it is

alleged that Appellant assaulted his wives during the course of their

marriages, but he spontaneously attacked Ms. Sickle whom he had just met

while she interviewed for a job.     Ms. Benek indicated Appellee did not

physically accost her.

      In addition, the trial court found that the prior bad acts testimony was

not admissible to prove a “common scheme, plan or design.” Under

Pennsylvania law, evidence of prior bad acts is admissible to prove “a common

scheme, plan or design where the crimes are so related that proof of one tends

to prove the others.” Commonwealth v. Elliott, 549 Pa. 132, 145, 700 A.2d

1243, 1249 (1997). In Elliott, the appellant had been accused of sexually

assaulting and killing a young woman whom he had approached outside a

nightclub at 4:30 a.m. The Pennsylvania Supreme Court affirmed the trial

court's decision to permit three other young women to testify that the

appellant also had preyed upon and physically and/or sexually assaulted each

of them as they left the same club in the early morning hours. Id. at 146,

700 A.2d at 1250–51. Our Supreme Court held that evidence of the similarities




                                    - 23 -
J-A18020-18


among the assaults was admissible to establish a common scheme, plan or

design. Id.

     As the trial court found herein, the proposed testimony of Denise

Bidwell, Jennifer Bidwell, Alyssa Benek and Danielle Sickle does not establish

a pattern of conduct on the part of Appellee so distinctive that proof of one

tends to prove the others. Instead, the prior bad acts testimony demonstrates

that Appellee was a domestic abuser of women, some of whom he was

involved in on-going romantic relationships in the past, but it does not show

a unique “signature” modus operandi relevant to the Victim’s murder. Ross,

supra at 104.   The Ross Court emphasized,

     The purpose of Rule 404(b)(1) is to prohibit the admission of
     evidence of prior bad acts to prove “the character of a person in
     order to show action in conformity therewith.” Pa.R.E. 404(b)(1).
     While Rule 404(b)(1) gives way to recognized exceptions, the
     exceptions cannot be stretched in ways that effectively eradicate
     the rule. With a modicum of effort, in most cases it is possible to
     note some similarities between the accused's prior bad conduct
     and that alleged in a current case. To preserve the purpose of Rule
     404(b)(1), more must be required to establish an exception to the
     rule—namely a close factual nexus sufficient to demonstrate the
     connective relevance of the prior bad acts to the crime in question.
     No such close factual nexus exists in this case, and this Court has
     warned that prior bad acts may not be admitted for the purpose
     of inviting the jury to conclude that the defendant is a person “of
     unsavory character” and thus inclined to have committed the
     crimes with which he/she is charged. See, e.g., Commonwealth
     v. Kjersgaard, 276 Pa.Super. 368, 419 A.2d 502, 505 (1980).
     Based upon our review of the record, we must conclude that the
     testimony of Berardinelli, Maloney, and Levine was used to
     establish that Ross was an abusive man who in the past was
     physically and sexually abusive to his romantic partners so that
     the improper inference could be drawn that he was capable of,
     and had the propensity for, committing the types of grotesque


                                    - 24 -
J-A18020-18


        acts of physical and sexual abuse inflicted upon Miller resulting in
        her death.

Commonwealth v. Ross, 57 A.3d 85, 105 (Pa.Super. 2012).

        Moreover, the proffered evidence does not work to rebut Appellee’s

theory that the Victim committed suicide, for other than its bald assertions,

the Commonwealth has failed to show how Appellee’s alleged violent behavior

toward other women has any connection to whether the Victim took her own

life.   Commonwealth’s Brief at 31, 37.        Because we find no error in the trial

court’s determination that prior bad acts evidence in the form of proposed

testimony of the four women was insufficient to establish a common plan or

scheme under Pa.R.E. 404(b), we cannot find the court abused its discretion

in denying the Commonwealth’s motion in limine.2

        The Commonwealth next challenges the trial court’s refusal to permit

evidence of Appellee’s habitual drug use. The Commonwealth maintains the

evidence of Appellee’s drug use and its effect upon him along with his use of

alcohol was relevant to show his “state of mind, intent, lifestyle with the

victim, and to reconstruct the murder and its aftermath.”           See Motion In

Limine, filed 7/12/17, at 14; Commonwealth’s Brief at 41-42.                    The


____________________________________________


2 Of course, our disposition of this issue should in no way be read to affect the
Commonwealth’s ability to introduce evidence, including the testimony of eye-
witnesses, with respect to Appellee’s acts of violence upon the Victim.
Indeed, the Appellee recognizes “the trial court properly permitted the
Commonwealth to introduce evidence that Appellee had previously assaulted
the [V]ictim in accordance with Pennsylvania case law.” See Brief for Appellee
at 46 (citations to caselaw omitted).

                                          - 25 -
J-A18020-18


Commonwealth asserts the fact that Appellee’s relationship with the Victim

was “centered around drugs is part of the natural development and history of

the case” as is the fact that he provided the Victim and other women drugs at

times prior to the murder. Id. at 41-42, 44.       The Commonwealth further

baldly states the fact that Appellee and the Victim were together in a bar in

the hours prior to the murder and drugs were found in the Victim’s system at

the autopsy serves as evidence “connecting [Appellee] to drug and alcohol

abuse” and “allows for the inference, the probative value (however slight) that

[Appellee] too had taken drugs and alcohol.” Id. at 44-45.

      The trial court found evidence of Appellee’s use of alcohol and drugs in

general to be irrelevant and inadmissible, but, importantly, “reserve[d] further

decision on this issue to the time of trial.”     In doing so, the trial court

reasoned:

            The Commonwealth alleges that [Appellee] was a frequent
      user of methamphetamine and that his use of same would result
      in his "stay[ing] awake for hours or days on end and [craving]
      sexual gratification to the point where he identifies himself . . as
      a sex addict." Com.'s Mot., ¶ 19. Beyond [Appellee’s] use of the
      same drug as the Victim and his trafficking in same, the
      Commonwealth has proffered little to show the relevance of
      [Appellee’s] use of this illegal substance in the alleged murder of
      the Victim. Indeed, the Commonwealth seems to treat
      [Appellee’s] alleged involvement in drug trafficking as
      interchangeable with his substance abuse. Com.'s Memo, pp. 14-
      15. We, however, view each separately and find, based on the
      Commonwealth's proffer and for the reasons stated below, that
      evidence of [Appellee’s] drug use is irrelevant and, thus,
      inadmissible.
                                      ***




                                     - 26 -
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             The charge at issue here is Criminal Homicide. Our reading
      of the Commonwealth's offer of proof presently before the [c]ourt
      is that the Commonwealth has alleged two theories for why
      [Appellee] might have murdered the Victim: (1) retaliation for the
      Victim providing incriminating evidence concerning [Appellee’s]
      alleged drug trafficking to the police and/or (2) because she was
      his mistress. Com.'s Mot., ¶¶ 11, 17-18. Only one of those
      theories has to do with drugs, and even that theory has no bearing
      on [Appellee’s] own drug use. While we recognize that "[e]vidence
      to prove motive is generally admissible," we fail to see how the
      Commonwealth intends to connect [Appellee’s] drug use with
      either of its proffered motives for the Victim's murder. See
      Commonwealth v. Philistin, 53 A.3d 1, 16-17 (Pa. 2012).
             For example, the Commonwealth has failed to present
      evidence that would show how [Appellee’s] drug use played a role
      in his alleged motive to kill the Victim because of her incriminating
      statements to police. Indeed, the evidence presented by the
      Commonwealth tends to show that [Appellee] was angry because
      the Victim spoke to the police about his alleged drug trafficking,
      not his drug use. See Com.'s Ex. 1, Recorded Statement of
      Jennifer Bidwell, p. 5-6. Drug trafficking does not necessarily
      involve drug use by the trafficker. Furthermore, the
      Commonwealth has not alleged, nor does the evidence before us
      reflect, that [Appellee] killed the Victim in a rage induced by
      methamphetamine or lack of sleep. Indeed, there is no evidence
      before us that [Appellee] was using any illegal substance on the
      day of the Victim's death. Similarly, the Commonwealth has not
      posited a theory of sexual violence by [Appellee] toward the Victim
      on the day of her death, as might be expected from a man who
      uses methamphetamine and then "crave[s] sexual gratification to
      the point where he identifies himself .. as a sex addict." Com.'s
      Mot., ¶ 19.
             Based upon the Commonwealth's offer of proof and the
      evidence currently before the [c]ourt, we can find no relevance in
      the evidence regarding [Appellee’s] drug use. Accordingly, at this
      time, we find this evidence to be irrelevant and inadmissible and
      the Commonwealth's Motion to admit such evidence is DENIED
      and we reserve further decision on this issue to the time of trial.

Trial Court Opinion, filed 12-15/17, at 20-22.

      In light of the foregoing, the Commonwealth is mistaken when it argues

the “lower court abused its discretion by creating an unrealistic standard for

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determining relevancy on this point; namely, that the Commonwealth must

show    by    specific   and   direct    evidence   that   [Appellee]    ingested

[methamphetamine]. This would exclude all circumstantial evidence on that

point.” Commonwealth’s Brief at 45. The trial court created no such standard,

for a plain reading of its decision reveals it has left the door open for the

Commonwealth to present testimonial, circumstantial, or other relevant

evidence to establish that Appellee was under the influence of drugs, alcohol,

or both at the time of the murder. This is clarified in the trial court’s Rule

1925(a) Opinion where it indicated that at this juncture it “simply has no

evidence before [it] that shows [Appellee] was under the influence of any

substance at the time [the Victim] was murdered.”           The trial court also

emphasized that the Commonwealth had presented this argument for the first

time on appeal as a way to connect his drug use with the Victim’s death

through the use of his prior bad acts against other women in the context of

Pa.R.E. 404(b).     Trial Court Opinion, filed 2/16/18, at 6-7.         The court

concluded:

       Indeed, based on the Commonwealth’s offer of proof in connection
       with their Motion in Limine, we determined [Appellee’s] drug use
       was irrelevant but reserved further decision on the issue to the
       time of trial, should the Commonwealth present further evidence
       that [Appellee’s] drug use was relevant to the Criminal Homicide.
       See Opinion, 12/15/17, pp. 19-22. Accordingly, we find it
       disingenuous for the Commonwealth to aver on appeal that this
       [c]ourt erred in making a decision where the Commonwealth
       failed to offer evidence to sustain its burden.

Id. at 9.


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      Following our review, we find the Commonwealth’s issues lack merit

and affirm the trial court’s Order.

      Order affirmed.

      Judge Stabile joins the Opinion.

      Judge Strassburger concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/11/18




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