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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  :   IN THE SUPERIOR COURT OF
                                                  :        PENNSYLVANIA
                       Appellant                  :
                                                  :
                                                  :
                v.                                :
                                                  :
                                                  :
    JOHN SUCOLA                                   :   No. 428 WDA 2019

                 Appeal from the Order Entered March 18, 2019
       In the Court of Common Pleas of Butler County Criminal Division at
                        No(s): CP-10-CR-0001153-2017


BEFORE:      BOWES, J., LAZARUS, J., and PELLEGRINI, J.*

MEMORANDUM BY LAZARUS, J.:                                  FILED APRIL 15, 2020

        The Commonwealth of Pennsylvania appeals from the order, entered in

the Court of Common Pleas, denying its pre-trial motion to introduce evidence

pursuant to Pa.R.E. 404(b). Upon careful review, we affirm.

        The Commonwealth alleges, in the late evening on May 20, 2017, or the

early morning of May 21, 2017, John Sucola went to the home of his estranged

wife, Rachel Sucola, and, after being refused permission to enter, shattered

the home’s rear door and threw Rachel to the floor. Officer Randall Bauer

arrested Sucola shortly thereafter.            Sucola was subsequently charged with




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*   Retired Senior Judge assigned to the Superior Court.
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simple assault,1 harassment,2 possession of drug paraphernalia,3 and

possession of marijuana.4

        On May 28, 2017, Rachel obtained an emergency ex parte protection

from abuse (PFA) order requiring Sucola to refrain from contacting Rachel or

their child. In support of the emergency PFA petition, Rachel provided the

court with a hand-written statement describing Sucola’s behavior subsequent

to his arrest. Specifically, Rachel alleged Sucola lingered outside her home

and at her place of business for three consecutive days. Subsequently, Rachel

petitioned for a temporary PFA order, which the court granted on June 6,

2017. The court issued a final PFA order on July 18, 2017, effective for three

years. During indirect criminal contempt (ICC) proceedings on September 27,

2018, the court found Sucola in violation of the final PFA order for screaming

at Rachel while exchanging custody of their fourteen-year-old son on August

23, 2018.5

        Before Sucola’s trial was scheduled to begin, the Commonwealth filed a

motion in limine to introduce into evidence the PFA orders, Rachel’s hand-

written statement, and evidence from the ICC proceedings.         See Motion,
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1   18 Pa.C.S.A. § 2701(a)(1).

2   18 Pa.C.S.A. § 2709(a)(1).

3   35 P.S. § 780-113(a)(32).

4   35 P.S. § 780-113(a)(31).

5   The court sentenced Sucola to ten days to six months’ incarceration.

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3/11/19, at 2 (“[T]he Commonwealth seeks to introduce evidence of

[Sucola’s] prior bad acts including PFA’s [sic] and criminal contempt to show

intent and course of conduct.”). On March 18, 2019, the court heard argument

on the motion, during which the Commonwealth argued the evidence was

admissible under Rule 404(b) for the non-propensity purpose of showing

Sucola’s “motive, malice or intent and . . . the continual nature of abuse.”

N.T. Hearing, 3/18/19, at 2. After determining the Commonwealth failed to

establish a connection between the proffered evidence to the crimes being

prosecuted, the court denied the Commonwealth’s motion. See id. (“We are

going to decide this case based on what [Sucola] is accused of doing in May.”).

      On March 22, 2019, the Commonwealth timely filed a notice of appeal

and certified the court’s order substantially handicapped the prosecution

pursuant to Pa.R.A.P. 311(d).      Both the Commonwealth and the court

complied with Pa.R.A.P. 1925. The Commonwealth raises the following

question for our review:

      Whether a certified PFA [order] as against the defendant in
      protection of the victim in the underlying offense; [sic] and, the
      circumstances under which it was issued, are admissible evidence
      of the history and natural development of the facts of the case,
      pursuant to Pennsylvania case law and [Rule 404(b)], where the
      incident giving rise to the PFA [order] occurred after the offense
      charged?




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Brief of Appellant, at 5.       Specifically, the Commonwealth “seeks to admit

evidence in this matter pursuant to the res gestae exception[6]” under Rule

404. Id. at 10.

       Our standard of review regarding the denial of a motion in limine is well-

settled:

       When ruling on a trial court’s decision to grant or deny a motion
       in limine, we apply an evidentiary abuse of discretion standard of
       review. The admission of evidence is committed to the sound
       discretion of the trial court, and a trial court’s ruling regarding the
       admission of evidence will not be disturbed on appeal unless that
       ruling reflects manifest unreasonableness, or partiality, prejudice,
       bias, or ill-will, or such lack of support to be clearly erroneous.




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6  We note with disapproval the sloppiness with which the Commonwealth has
litigated Sucola’s case to this point. As discussed further infra, while arguing
before the trial court, the assistant district attorney seemed unfamiliar with
even the most basic facts underpinning her motion. See N.T. Hearing,
3/18/19, at 3 (seeking admission of material from ICC hearing and underlying
PFA orders for non-propensity purpose of showing course of conduct, but
admitting she lacked knowledge of facts underpinning both PFA and ICC
proceedings).     Moreover, though we do not find the Commonwealth’s
argument waived in its entirety, we find it concerning that the Commonwealth
failed to articulate clearly an argument advocating for the admission of
evidence at issue under the res gestae exception at any point before filing its
appellate brief. See id. at 2 (omitting mention of res gestae; arguing for
admission on grounds that evidence would show “continual nature of abuse”);
see also Motion, 3/11/19, at 2 (seeking to introduce “prior bad acts including
PFA’s [sic] and criminal contempt to show intent and course of conduct”). We,
however, find the Commonwealth waived its initial arguments regarding
motive, malice or intent and evaluate the proffered evidence solely to
determine whether it furthers the non-propensity purpose of establishing the
history of the case under the res gestae exception. See Commonwealth v.
Sanchez, 36 A.3d 24, 72 (Pa. 2011) (precluding review of arguments
abandoned on appeal).

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Commonwealth v. Ivy, 146 A.3d 241, 251 (Pa. Super. 2016) (citation

omitted).

      The trial court denied the Commonwealth’s motion in limine under Rule

404, which provides, in relevant part, as follows:

      Rule 404. Character Evidence; Crimes or Other Acts.

                                   ***

      (b) Crimes, Wrongs or Other Acts.

      (1) Prohibited Uses. Evidence of a crime, wrong, or other act is
      not admissible to prove a person’s character in order to show that
      on a particular occasion the person acted in accordance with the
      character.

      (2) Permitted Uses. This evidence may be admissible for another
      purpose, such as proving motive, opportunity, intent, preparation,
      plan, knowledge, identity, absence of mistake, or lack of accident.
      In a criminal case this evidence is admissible only if the probative
      value of the evidence outweighs its potential for unfair prejudice.

Pa.R.E. 404(b)(1)–(2).

      Our Supreme Court has consistently recognized the propriety of

admitting evidence of bad acts, distinct from the charged crimes, “where it is

part of the history or natural development of the case, i.e., the res gestae

exception.” Commonwealth v. Brown, 52 A.3d 320, 326 (Pa. Super. 2012).

In other words, the exception applies to bad acts “which are so clearly and

inextricably mixed up with the history of the guilty act itself as to form part of

one chain of relevant circumstances, and so could not be excluded on the

presentation of the case before the jury without the evidence being rendered

thereby unintelligible.” Commonwealth v. Knoble, 188 A.3d 1199, 1205

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(Pa. Super. 2018) (citation omitted).           “Where the res gestae exception is

applicable, the trial court must balance the probative value of such evidence

against    its   prejudicial   impact.”        Brown, supra at    326;   see also

Commonwealth v. Weakley, 972 A.2d 1182, 1191 (Pa. Super. 2009)

(balancing occurs after non-propensity purpose established under Rule

404(b)).

       The trial court denied the Commonwealth’s motion on the grounds that

it failed to establish a permissible purpose for the proffered evidence.7 See

Pa.R.A.P. 1925(a) Opinion, 5/21/19, at 4–5. We agree.

       When the trial court asked the Commonwealth whether it sought to

introduce “a PFA [order] . . . based on the same facts as [the] trial,” the

assistant district attorney responded, “I don’t know if it’s based on the same

facts.” N.T. Hearing, 3/18/19, at 4. When the court asked what Sucola did

to violate the PFA order, the assistant district attorney responded “obviously

it would have been some violation of the PFA[ order,]” before saying “the

indirect criminal contempt . . . has nothing to do with the charges that are

here.” Id. at 4–5. When asked why the proffered evidence was relevant to

“the underlying allegations of the crime[,]” the Commonwealth replied with a




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7  The court also found the prejudicial impact of the proffered evidence
outweighed its probative value, and noted that the evidence could
alternatively be excluded under Pa.R.E. 403. See Pa.R.A.P. 1925(a) Opinion,
5/21/19, at 4–5.

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bald assertion that the conduct constituted “continual harassment[,]”

rendering the evidence admissible. Id. at 6.

       We find the Commonwealth’s half-hearted argument failed to establish

the relevance of these events to the history of the case, thereby precluding

their admission under the res gestae exception. See Knoble, supra at 1205.

The fact that the evidence concerns events which took place after the crimes

for which Sucola stands accused, without an explanation of how Sucola’s

subsequent behavior is relevant to either the charged crimes or the

prosecution of this case, fatally undermines any argument that this evidence

is necessary to explain “the complete story or natural developments forming

the history of the case.” Crispell, supra at 937. Therefore, the res gestae

exception to the general prohibition against evidence of other bad acts is

inapplicable.8    See Knoble, supra at 1205 (admitting evidence under res

gestae exception requires “the case before the jury without the evidence [to

have been] rendered thereby unintelligible.”).

       The Commonwealth, at length, argues the trial court committed an

abuse of discretion by failing to find the proffered evidence admissible under

the holding of either Commonwealth v. Drumheller, 808 A.2d 893 (Pa.




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8 We, therefore, do not engage in the balancing test under Rule 404. See
Weakley, supra at 1191 (requiring balancing test after permissible non-
propensity purpose is identified.).

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2002), or Commonwealth v. Ivy, 146 A.3d 241, 251 (Pa. Super. 2016).

Brief of Appellant, at 12–20. Both cases are distinguishable.

       In Drumheller, the Commonwealth sought to admit as evidence four

PFA petitions, all of which had been granted on behalf of a wife against her

husband, while prosecuting the husband for his wife’s murder. Drumheller,

supra at 897–98. These petitions contained descriptions of physical abuse

and verbal threats, including threats against the victim’s life, all of which

formed a pattern of abuse leading up to the defendant killing his wife. Id.

Our Supreme Court deemed these PFA orders admissible as part of “the chain

or sequence of events that formed the history of the case” because they were

relevant to the continual and escalating nature of [husband’s] abuse of

[wife.]” Id. at 905.

       We find the Drumheller Court’s ruling distinguishable because the PFA

orders involved in that case, by virtue of having been granted before the

crimes being tried, logically provided context critical to understanding the

defendant’s course of conduct leading up to the crime.9 See id.; see Knoble,

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9 The Commonwealth also cites Drumheller for the proposition that the
timing of abuse is immaterial, stating “evidence of abuse is relevant, and the
timeliness of its occurrence more properly affects the weight of the evidence
rather than its admissibility.” Brief of Appellant, at 16 (citing Drumheller,
supra at 905). This is a mischaracterization of the law; the Drumheller
Court referenced timing insofar as it evaluated whether the remoteness in
time between two events impacted weight or admissibility. Drumheller,
supra at 905. The instant situation, however, does not concern the distance
in time between two events, but rather, hinges on how a preceding event



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supra at 1205 (requiring evidence admitted under res gestae exception be

“inextricably mixed up with the history of the guilty act itself as to form part

of one chain of relevant circumstances [.]”); see also Robinson, supra at

497 (admitting evidence under res gestae exception on grounds that it was

“intricately interwoven” and “provided the jury with a complete story[.]”).

       Ivy, supra, features a superficially similar scenario, albeit with

important factual and legal differences. In Ivy, supra, the Commonwealth

sought to admit evidence of a victim’s PFA order against the defendant and

his violation thereof—events which occurred after the conduct for which the

defendant was being tried.              Id. at 252.   Critically, however, the

Commonwealth established that the defendant violated the PFA order by

engaging a third party to instruct the victim to either withdraw the charges

for which he was being tried, refuse to appear at the preliminary hearing, or

both. See id. at 252.

       We found the evidence admissible both as res gestae and to prove

consciousness of guilt, in spite of the fact that the charged conduct preceded

the PFA order, because the Commonwealth established the evidence’s role in

providing context to subsequent events that were critical to contextualizing

the case.    See id.      Namely, the defendant’s PFA violation constituted an


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impacts a subsequent event, i.e. the crimes for which Sucola stands accused
occurred before Rachel sought the initial ex parte PFA order, and the
Commonwealth failed to establish the relevance of those subsequent events
to the broader history of the case.

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attempt to interfere with the case at trial, thereby properly rendering it part

of “the history of the case.” Id.; see also id. (“[I]t is necessary for the jury

to know exactly what the PFA order stated and the nature of the [defendant’s]

violation” because violation evinced both defendant’s “state of mind” and his

“consciousness of . . . guilt.”). Moreover, we found the trial court “wholly

failed to substantiate” its finding that the prejudicial impact of the proffered

evidence outweighed its probative value, and it was this failure that

“compel[ed] our conclusion that the order should be reversed.” Id. at 252.

      Instantly, however, it was the Commonwealth who wholly failed to

substantiate the importance of the proffered evidence.      See N.T. Hearing,

3/18/19, at 4–7. Generally, we have admitted evidence of PFA orders that

precede a crime of domestic violence as res gestae because preceding events

naturally explain how “the incident at issue logically grew out of the prior set

of circumstances[.]” Commonwealth v. Yocolano, 169 A.3d 47, 55 (Pa.

Super. 2017).    Such evidence, however, is not admitted because the res

gestae exception only applies to prior bad acts, but rather, because earlier

events generally constitute the history and development of a case and not

vice versa. See id.; see Ivy, supra at 252. Ivy, supra simply illustrates

that bad acts occurring after a charged crime can play a critical role in

understanding the history of a case, albeit under circumstances where the

Commonwealth explains how those subsequent acts played a role in how the

case unfolded. See Ivy, supra at 252.


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        We, therefore, conclude the trial court did not misapply the law or abuse

its discretion in denying the Commonwealth’s motion for the introduction of

evidence under Rule 404(b). See id. at 241; see also Knoble, supra at

1205.

        Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/15/2020




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