J-A28018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

TANYA MUSKELLEY

                            Appellee                No. 3402 EDA 2014


                Appeal from the Order Entered November 7, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0015833-2013


BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J.

MEMORANDUM BY PANELLA, J.                       FILED December 18, 2015

       The Commonwealth appeals from the pretrial order entered on

November 7, 2014, by the Honorable Lillian H. Ransom, Court of Common

Pleas of Philadelphia County, which granted Appellee, Tanya Muskelley’s

motion in limine, and precluded the admission of evidence showing that

Muskelley had previously attended alcohol safety school.1 We affirm.

       The facts and procedural history may be summarized as follows. On

May 3, 2012, Muskelley was driving when she struck a female pedestrian at



____________________________________________


1
   This appeal properly invokes the jurisdiction of this Court as an
interlocutory appeal from an order that terminates or substantially handicaps
the prosecution. The Commonwealth has certified in good faith that the
Order substantially handicaps the instant prosecution.        See Pa.R.A.P.
311(d).
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an intersection.            Muskelley’s blood alcohol concentration was .201%

approximately three hours after the crash, well in excess of the legal limit.

          After the crash, the police took Muskelley’s car into custody and

searched it pursuant to a search warrant.         During the search, the police

recovered a packet of written materials related to an alcohol safety course

that Muskelley had previously attended as part of an ARD program for a

prior DUI offense. Included in the packet were course materials, a receipt,

and a certificate of course completion.

          Following four days of hospitalization, the pedestrian victim died from

the injuries she sustained in the crash. Muskelley was subsequently charged

with homicide by vehicle,2 involuntary manslaughter,3 homicide by vehicle

while driving under the influence,4 and driving under the influence.5        The

charges were bound over for trial after the preliminary hearing.

          Thereafter, Muskelley filed the motion in limine at issue, which sought

to preclude the admission of all evidence regarding her prior DUI arrest and

subsequent participation in the ARD program.         See Defendant’s Motion In

Limine, filed 8/15/14.           At the evidentiary hearing, the Commonwealth

argued that it was not seeking to admit evidence that Muskelley was

previously arrested and placed on ARD, rather it was seeking to admit
____________________________________________


2
    75   Pa.C.S.A.   §   3732.
3
    18   Pa.C.S.A.   §   2504.
4
    75   Pa.C.S.A.   §   3735.
5
    75   Pa.C.S.A.   §   3802.



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evidence that Muskelley had previously participated in alcohol safety school

courses in order to show that she had notice of the dangers of drinking and

driving. See N.T., Motions Hearing, 7/26/14, at 9-13.

      After considering the arguments presented, the trial court granted

Muskelley’s motion in limine and precluded the admission of the alcohol

safety school records and arrest.    Thereafter, the Commonwealth filed a

timely interlocutory appeal.

      The Commonwealth presents a single issue for our review.            The

Commonwealth maintains that the trial court erred in excluding the alcohol

safety school materials found in Muskelley’s car.        The Commonwealth

asserts that this evidence should have been admitted under Pa.R.E.

404(b)(2). See Appellant’s Brief, at 12-13. Specifically, the Commonwealth

contends that the evidence is relevant to prove Muskelley’s mens rea of

recklessness. See id., at 18. The Commonwealth maintains that because

Muskelley previously attended alcohol safety school, she had “heightened

notice” of the dangers of impaired driving. Id.

      The trial court reasons that it properly denied the admission of the

alcohol safety school materials because the primary reason for seeking the

admission of the materials was to establish Muskelley’s propensity for driving

under the influence of alcohol. See Trial Court Opinion, at 4. Moreover, the

trial court reasons that that the admission of the materials would be unduly

prejudicial and would serve no permissible use. See id., at 5.




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      We preliminary note that our Court reviews the grant of a motion in

limine by applying the scope of review appropriate to the particular

evidentiary matter at issue. See Commonwealth v. Freidl, 834 A.2d 638,

641 (Pa. Super. 2003).     The “[a]dmission of evidence is within the sound

discretion of the trial court and will be reversed only upon a showing that the

trial court clearly abused its discretion.”    Commonwealth v. Stallworth,

781 A.2d 110, 117 (Pa. 2001) (citation omitted). “[O]ur scope of review is

limited to an examination of the trial court’s stated reason for its decision to

preclude the admission of the evidence in the Commonwealth’s case-in-

chief.”   Commonwealth v. Dillon, 863 A.2d 597, 600 (Pa. Super. 2004)

(en banc) (citation omitted), aff’d, 925 A.2d 131 (Pa. 2005).

      Further, “admissibility of evidence depends on its relevance and

probative value.”     Stallworth, 781 A.2d at 117. (citation omitted).

“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.” Id., at 117-

118 (citation omitted).

      As the trial court noted, it is impermissible to present evidence at trial

of a defendant’s prior bad acts or crimes to establish the defendant’s

criminal character or proclivities.   See Commonwealth v. Hudson, 955

A.2d 1031, 1034 (Pa. Super. 2008).            Such evidence, however, may be

admissible “where it is relevant for some other legitimate purpose and not


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utilized solely to blacken the defendant’s character.”    Commonwealth v.

Russell, 938 A.2d 1082, 1092 (Pa. Super. 2007) (citation omitted).         Rule

404(b)(2) provides that “[e]vidence of other crimes, wrongs, or acts may be

admitted for other purposes, such as proof of motive, opportunity, intent,

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

Pa.R.E. 404(b)(2).   Rule 404(b)(3), however, mandates that other crimes,

wrongs, or acts “may be admitted in a criminal case only upon a showing

that the probative value of the evidence outweighs its potential for

prejudice.” Pa.R.E. 404(b)(3). See also Russell, 938 A.2d at 1092.

      To establish convictions for homicide by vehicle while DUI and DUI, the

Commonwealth     must   prove   that    Muskelley’s   conduct   was   criminally

negligent.    See Commonwealth v. Samuels, 778 A.2d 638, 640 (Pa.

2001).   However, to establish convictions for homicide by vehicle and

involuntary manslaughter, the Commonwealth must prove that Muskelley’s

conduct was reckless or grossly negligent and directly resulted in the death

of another person.   See 75 Pa.C.S.A. § 3732(a); 18 Pa.C.S.A. § 2504(a).

The terms “reckless” and “grossly negligent” define the equivalent state of

mind for purposes of the involuntary manslaughter and vehicular homicide

provisions.   See Commonwealth v. Huggins, 836 A.2d 862, 868 (Pa.

2003).

      Under our Criminal Code, “[a] person acts recklessly with respect to a

material element of an offense when [s]he consciously disregards a


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substantial and unjustifiable risk that the material element exists or will

result from h[er] conduct.”    18 Pa.C.S.A. § 302(b)(3).     Driving under the

influence of intoxicating substances does not establish legal recklessness per

se; there must be “other tangible indicia of unsafe driving to a degree that

creates a substantial risk of injury which is consciously disregarded.”

Commonwealth v. Mastromatteo, 719 A.2d 1081, 1083 (Pa. Super.

1998).    “What is material is actual reckless driving or conduct, for any

reason, for it is this conduct which creates the peril in question.” Id.

      The Commonwealth contends that the alcohol safety course materials

found in Muskelley’s car are the “tangible indicia” needed to establish

recklessness. We disagree.

      Case law in this area unequivocally establishes that the tangible indicia

requirement refers solely to acts of unsafe driving, such as speeding, which

when combined with driving under the influence, rises to the level of

recklessness.    See Commonwealth v. Jeter, 937 A.2d 466 (Pa. Super.

2007) (mens rea of recklessness satisfied where intoxicated driver weaved in

and out of other cars for several miles before ultimately losing control of his

car and striking the center barrier of the roadway); Commonwealth v.

Sullivan, 864 A.2d 1246 (Pa. Super. 2004) (mens rea of recklessness

satisfied where intoxicated driver drove a quarter mile in the wrong direction

on a highway off-ramp).




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      Clearly, the alcohol safety school materials found in Muskelley’s car are

not acts of unsafe driving. Thus, we agree with the trial court’s decision to

exclude this evidence on the basis that the course materials are in no way

relevant to establish the mens rea of recklessness for the crimes charged.

We also agree with the trial court’s conclusion that the admission of these

materials would be unduly prejudicial and would not serve any permissible

purpose. Accordingly, we affirm the trial court’s order granting Muskelley’s

motion in limine on this issue.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/18/2015




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