J-S29022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

NESBITT FOWLER

                            Appellant                 No. 3722 EDA 2015


        Appeal from the Judgment of Sentence dated November 9, 2015
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0007715-2014

BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY SOLANO, J.:                               FILED JUNE 22, 2017

        Appellant, Nesbitt Fowler, appeals from the judgment of sentence

imposed after the trial court convicted him of aggravated assault, simple

assault and recklessly endangering another person.1 We affirm.

        Appellant’s convictions arose from an incident involving his girlfriend,

Keshiva Poindexter, on June 7, 2014. Prior to trial, Appellant filed a motion

in limine in which he sought the court’s permission to question Ms.

Poindexter about a video Ms. Poindexter allegedly recorded of Appellant and




____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 2702(a), 2701(a), and 2705.
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posted on the Internet.2         The trial court, in an order by the Honorable

Carolyn H. Nichols, granted Appellant’s motion in limine on July 16, 2015.

       On July 27, 2015, the Commonwealth filed a motion to admit prior

“evidence that [Appellant] had attacked the victim on six prior occasions to

show, inter alia, intent, and absence of mistake, or to rebut anticipated

defense.”    Commonwealth Brief at 3; see also Commonwealth Motion to

Admit Other Acts Evidence, 7/27/15. The motion was heard prior to trial on

September 10, 2015, by the Honorable Steven F. Geroff, sitting as the pre-

trial motions judge.3 At the hearing, the prosecutor conceded:

             The main reason, your honor, that the Commonwealth
       seeks to admit [evidence of Appellant’s prior bad acts] is that
       there was a motion in limine. . . . [T]here is a motion in limine
       where Judge Nichols granted [Appellant’s] motion to allow the
       defense to question the complaining witness on a video that was
       posted of [Appellant] on YouTube. Essentially in a dance where
       he proceeded to take off his clothes.

             And based on that ruling, Judge Nichols ruled that it was
       allowed to establish motive and bias on the part of the
       complainant. So in response, I filed the other acts motion to
       allow these alleged other acts to come into evidence to refute
       that bias or motive.


____________________________________________
2
  Appellant’s motion in limine appears to have been verbal. Although there
is no physical motion in the record, its existence is not disputed and is
verified by the trial court’s two orders, one on June 25, 2015 stating that
“Defense Motion in Limine is Held Under Advisement” and a second on July
16, 2015 stating “Defense Motion in Limine is Granted. Defense may ask
questions to witness about video. Trial date to remain 9/10/15.”
3
  Judge Geroff heard the Commonwealth’s pre-trial motion because
Appellant had elected to proceed at a bench trial before Judge Nichols.


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N.T., 9/10/15, at 3-4. Counsel for Appellant responded that “there’s

no exception that says other acts can come in to bolster the credibility

of the witness.”    Id. at 8.       Appellant’s counsel then asked whether

“Your Honor is following my logic?” to which the court responded “I

do.”   Id. at 10.       However, the court continued, “Let’s assume that

video never happened,” and it then reviewed the prior acts set forth in

the Commonwealth’s motion. Id.

       At   the   end    of   the   hearing,   Judge   Geroff   permitted   the

Commonwealth to present evidence of two of the prior acts: (1) an

incident in the summer of 2013 when Appellant allegedly strangled Ms.

Poindexter until she lost consciousness, and (2) an incident the

following spring when Appellant allegedly punched Ms. Poindexter on

the forehead. N.T., 9/10/15, at 14-15; see also Trial Court Opinion,

6/30/16, at 3-4. The court stated:

              Certainly anything [Ms. Poindexter] testifies to is subject
       to great question as to her credibility. But I’m ready to rule. As
       to the December 2012, January 2-13, I will not permit that. The
       summer of 2013 . . . I would permit her to testify to being
       strangled by [Appellant] and losing consciousness. . . . I can
       assure you, you can use your cross-examination to show this
       lady is making all of this up. . . . So I won’t allow December
       2013. Clearly, we’re not allowing February 2014. And I will
       allow the allegation that during April and May of 2014,
       [Appellant] allegedly punched the complainant on the forehead.
       I’ll permit that.

             So now you got just two acts, two alleged acts.

N.T., 9/10/15, at 13-15.


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      The case proceeded to trial. Judge Nichols, sitting as the trial court,

summarized the trial court’s factual findings as follows:

            On June 7, 2014, the complainant, Keshiva Poindexter,
      contacted her boyfriend, [Appellant], through text message
      regarding the return of her cell phone. At some point that
      evening, Ms. Poindexter drove to [Appellant’s] house at 1638
      Frazier St. in Philadelphia. She entered the residence through
      the open front door and found [Appellant’s] cousin laying on a
      couch. She asked the cousin where [Appellant] was and he
      replied he didn’t know. Ms. Poindexter then proceeded upstairs
      where she encountered another female. Again she asked where
      [Appellant] was and if she had seen her cell phone. The cousin
      then informed Ms. Poindexter that [Appellant] would be
      returning shortly. Six minutes after she arrived, [Appellant]
      returned to the house. A verbal argument ensued between Ms.
      Poindexter and [Appellant].      [Appellant] then grabbed Ms.
      Poindexter by the hand and punched her with a closed fist
      several times in the face, specifically her eyes. Ms. Poindexter
      then blacked out. She was awoken by [Appellant’s] father
      slapping her. She then ran outside, where she called her friend
      for help and then passed out again. At some point police were
      called and she was taken to the University of Pennsylvania
      Hospital. The damage to Ms. Poindexter’s eyes [was] extensive
      and required several surgeries with several more in the future.
      Additionally, there was permanent damage to her optical nerves.

Trial Court Opinion, 6/30/16, at 2 (citations to notes of testimony omitted).

      The trial court rendered its guilty verdicts on September 10, 2015 and

deferred sentencing for the preparation of a pre-sentence investigation

report. On November 9, 2015, the trial court sentenced Appellant to 4½ to

10 years’ incarceration. Appellant then filed this timely appeal, in which he

presents a single issue for our review:

            Did not the lower court err in allowing the Commonwealth
      to present evidence of other acts by [Appellant]?

Appellant’s Brief at 3.

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      Appellant states that the Commonwealth sought to introduce evidence

of his “uncharged alleged bad acts” against Ms. Poindexter “to bolster [Ms.

Poindexter]’s credibility in the face of the defense evidence of her motivation

to lie.” Appellant’s Brief at 9. The essence of Appellant’s claim is that the

evidence was improperly admitted because it was “clearly offered for the

purpose of trying to paint [Appellant] as having bad character and a

propensity for violence [and n]one of the allowable justifications for the

introduction of other bad acts evidence apply here.”         Id. at 13.     The

Commonwealth counters that the evidence of the two prior acts was properly

admitted because “case law permits the admission of evidence of previous

assault of the same victim to prove ill-will, malice, and intent, among other

purposes.” Commonwealth Brief at 4.

      We review challenges to the admission of “other acts” evidence for an

abuse of discretion.   Commonwealth v. Patterson, 91 A.3d 55, 68 (Pa.

2014) (“The admission of evidence of prior bad acts is solely within the

discretion of the trial court, and the court’s decision will not be disturbed

absent an abuse of discretion”), cert. denied, 135 S.Ct. 1400 (2015). The

Pennsylvania Supreme Court has explained:

      An abuse of discretion may not be found merely because an
      appellate court might have reached a different conclusion, but
      requires a result of manifest unreasonableness, or partiality,
      prejudice, bias, or ill-will, or such lack of support so as to be
      clearly erroneous. Typically, all relevant evidence, i.e., evidence
      which tends to make the existence or non-existence of a
      material fact more or less probable, is admissible, subject to the


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      prejudice/probative value weighing which attends all decisions
      upon admissibility. See Pa.R.E. 401; Pa.R.E. 402.

Commonwealth v. Dillon, 925 A.2d 131, 136 (Pa. 2007) (internal

quotations and some citations omitted).

      Rule 404(b) of the Rules of Evidence provides:

      (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.

Under this rule, evidence of other bad acts or crimes that are not currently

being prosecuted against the defendant are not admissible against the

defendant to show his bad character or propensity to commit criminal acts.

Commonwealth v. Flamer, 53 A.3d 82, 87 (Pa. Super. 2012). Evidence of

other bad acts or crimes may be admissible, however, where the evidence is

used for some other purpose. Id. Such purposes explicitly include “proving

motive, opportunity, intent, preparation, plan, knowledge, identity, absence

of   mistake,   or   lack   of   accident.”   Pa.R.E.   404(b)(2);   see,   e.g.,

Commonwealth v. Johnson, 42 A.3d 1017, 1027 (Pa. 2012) (“Prior acts

are admissible to show ill will, motive, malice, or the nature of the

relationship between the defendant and the decedent”).         “[A]dmission for

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these purposes is allowable only whenever the probative value of the

evidence exceeds its potential for prejudice.” Commonwealth v. Briggs,

12 A.3d 291, 337 (Pa. 2011).         “The admission of evidence becomes

problematic only when its prejudicial effect creates a danger that it will stir

such passion in the jury as to sweep them beyond a rational consideration of

guilt or innocence of the crime on trial.”   Commonwealth v. Sherwood,

982 A.2d 483 n.25 (Pa. 2009) (citation omitted).

      The trial court provided the following reasoning to support admission

of the contested evidence:

            The prior bad acts of [a d]efendant are admissible to show
      intent when intent or knowledge is an essential element of the
      crime charged. Commonwealth v. Sparks, 342 Pa. Super.
      202, 206-207, 492 A.2d 720, 723 (1985) (citation omitted).
      Here [Appellant] is charged with Aggravated Assault, which
      requires a mens rea of intentionally, knowingly or recklessly
      under circumstances manifesting extreme indifference to the
      value of human life. The prior behavior is similar to the current
      charge and shows the intent of [Appellant] to attempt to cause
      serious bodily injury to Ms. Poindexter. It also shows that there
      was a hostile relationship between [Appellant] and Ms.
      Poindexter and that [Appellant] intentionally wanted to cause
      serious bodily injury to Ms. Poindexter.

             The prior bad acts of [Appellant] were also properly
      admitted to show that there was an absence of mistake
      regarding the assault of Ms. Poindexter.         In the case,
      Commonwealth v. Ulatoski, 472 Pa. 53, 371 A.2d 186 (1977),
      the defendant was charged with murder for shooting his wife. At
      trial he claimed that the shooting was an accident.          The
      Pennsylvania Supreme Court affirmed the trial court’s ruling that
      evidence showing prior incidents of physical abuse by the
      defendant towards his wife were relevant and admissible to
      prove that the shooting was not an accident. Similar to the
      present case, [Appellant] might have claimed at trial that the
      injuries were accidental in nature. However the prior bad acts

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     evidence was relevant to show that in the past [Appellant] had
     assaulted Ms. Poindexter and was admissible to rebut such a
     claim of mistake.

           The two incidents that were admitted were also very close
     in time to the current incident and were not too remote to be
     admissible. Additionally, their prejudicial effect to [Appellant]
     was far outweighed by their probative value in proving the
     essential elements of the current charge.          Therefore the
     admission of the two prior incidents of assault by [Appellant]
     were properly admitted to show intent and absence of mistake.

Trial Court Opinion, 6/30/16, at 4-5. Upon review, we discern no abuse of

discretion by the trial court. As noted by the Commonwealth, case law

supports admission of the evidence at issue here. See Commonwealth Brief

at 6, citing Commonwealth v. Drumheller, 808 A.2d 893, 905 (Pa. 2002)

(evidence of prior abuse of victim admissible to prove appellant’s motive,

malice, intent, and ill-will toward the victim); Commonwealth v. Ulatoski,

371 A.2d 186, 190 (Pa. 1977) (same) (collecting cases); Commonwealth

v. Powell, 956 A.2d 406, 419 (Pa. 2008) (evidence of defendant’s anger,

impatience, and dislike of victim admissible to establish motive, intent, and

malice in harming that victim).

     The evidence of Appellant’s two prior acts, although not charged

crimes, was admissible to relate the “complete story” and “natural

development” of the relationship between Appellant and Ms. Poindexter. In

Commonwealth v. Lark, 543 A.2d 491 (Pa. 1988), the Supreme Court

explained:

     Evidence of distinct crimes are not admissible against a
     defendant being prosecuted for another crime solely to show his

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     bad character and his propensity for committing criminal acts.
     However, evidence of other crimes and/or violent acts may be
     admissible in special circumstances where the evidence is
     relevant for some other legitimate purpose and not merely to
     prejudice the defendant by showing him to be a person of bad
     character. . . . [One] “special circumstance” where evidence of
     other crimes may be relevant and admissible is where such
     evidence was part of the chain or sequence of events which
     became part of the history of the case and formed part of the
     natural development of the facts. This special circumstance,
     sometimes referred to as the “res gestae” exception to the
     general proscription against evidence of other crimes, is also
     known as the “complete story” rationale, i.e., evidence of other
     criminal acts is admissible “to complete the story of the crime on
     trial by proving its immediate context of happenings near in time
     and place.” McCormick, Evidence, § 190 (1972 2d ed.); see also
     Commonwealth v. Coyle, 415 Pa. 379, 389–91, 203 A.2d 782,
     787 (1964) (evidence of other crimes admissible as these crimes
     were interwoven with crimes for which defendant was being
     prosecuted).

543 A.2d at 497 (some citations omitted).       The rationale of Lark fully

supports admissibility of the Commonwealth’s evidence here, as evidence of

Appellant’s past conduct toward Appellant, if believed by the fact-finder,

would support the view that the criminal activity at issue was merely a part

of his ongoing pattern of conduct toward Ms. Poindexter — an earlier chapter

of the “complete story.”

     Finally, even if we were to accept Appellant’s argument that the

admission of the prior acts was improper, such admission would constitute

harmless error. Chief Justice Saylor recently explained:

     It is well-established that an erroneous evidentiary ruling by a
     trial court does not require us to grant relief where the error was
     harmless. Commonwealth v. Young, 561 Pa. 34, 748 A.2d
     166, 193 (1999). Specifically, we have held that harmless error
     exists where: (1) the error did not prejudice the defendant or

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      the prejudice was de minimis; (2) the erroneously admitted
      evidence was merely cumulative of other untainted evidence; or
      (3) the properly admitted and uncontradicted evidence of guilt
      was so overwhelming that the prejudicial effect of the error by
      comparison could not have contributed to the verdict. Id. We
      have explained that the doctrine of harmless error is a
      “technique of appellate review designed to advance judicial
      economy by obviating the necessity for a retrial where the
      appellate court is convinced that a trial error was harmless
      beyond a reasonable doubt. Its purpose is premised on the well-
      settled proposition that a defendant is entitled to a fair trial but
      not a perfect one.” Commonwealth v. Allshouse, 614 Pa.
      229, 36 A.3d 163, 182 (2012) (citation and internal quotations
      omitted).

Commonwealth v. Hicks, 156 A.3d 1114, 1139–40 (Pa. 2017) (Saylor, J.,

concurring); see also Commonwealth v. Melvin, 103 A.3d 1, 19-20 (Pa.

Super. 2014). We are confident that any error in admitting the evidence at

issue here would have been harmless.

      Ms. Poindexter was the only witness to testify at trial. She testified at

length regarding the incident that occurred on June 7, 2014, and the

physical evidence of her injuries. For instance, she stated:

      As we were arguing, [Appellant] attacked me with punching me
      in the face. I can’t recall how many times. I just know I blacked
      out. And when I woke up my eye was shut and I thought he
      was pouring water on me, but there was blood gushing from all
      over my face.

N.T., 9/10/15, at 14. Ms. Poindexter stated that she spoke with police on

the scene after she called 911. N.T., 9/10/15, at 112-113. She told police

that she had been attacked and pointed to the house where it happened.

Id. at 113. She stated that the police did not arrest Appellant at that time

because “he had walked off by then.” Id.

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      Ms. Poindexter testified about her broken orbital bone, permanently

damaged eye nerves, and three surgeries she had prior to trial, with more to

follow.   See, e.g., N.T., 9/10/15, at 20-23.        Ms. Poindexter gave the

following description of her injuries:

      WITNESS:                 As you can see, [my eye is] damaged. It
                               was worse than this. This is from the
                               third surgery. He moved it and moved it
                               a little bit, but when it first happened,
                               my eye was all the way. You didn’t even
                               see the black part. I thought they –
                               that’s why they were saying I was blind.
                               I thought they weren’t going to be able
                               to fix it at all.

      COMMONWEALTH:            You can put your hair back if you’d like.

      WITNESS:                 This is how I wear my hair now to cover
                               my appearance.

N.T., 9/10/15, at 23-24. Without objection, the Commonwealth introduced

exhibits documenting Ms. Poindexter’s injuries, including a police report and

photographs.

      At closing, Appellant sought to discredit Ms. Poindexter as being an

inconsistent and untruthful witness who “went [to Appellant’s house] to start

trouble.” N.T., 9/10/15, at 132. Specifically, Appellant’s counsel stated that

“it was to cause some sort of trouble. And I submit to Your Honor that when

she found [Appellant] was with another woman, something happened.

Something happened and she ended up being punched two or three times in

the face.” Id. Then, in arguing that Appellant lacked the requisite intent to

cause Ms. Poindexter serious bodily injury, Appellant’s counsel added:

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“[t]wo to three punches during some sort of confrontational issue, during

some sort of confrontational problem while somebody is at your house

uninvited is not proof that [Appellant] had specific intent to cause serious

bodily injury, or, even if serious bodily injury was caused, that he did so

intentionally, knowingly, or recklessly under circumstances manifesting

extreme indifference to the value of human life.” Id. at 134.

     In light of the evidence and the defense presented by Appellant’s

counsel at closing, we conclude that any error in the admission at trial of

prior acts involving Appellant and Ms. Poindexter would have been harmless.

     Accordingly, because Appellant’s evidentiary claim is without merit, we

affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2017




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