J-S12027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                       v.

JAMES KEARNS,

                            Appellant                  No. 1227 MDA 2017


              Appeal from the Judgment of Sentence, July 6, 2017,
                in the Court of Common Pleas of Luzerne County,
              Criminal Division at No(s): CP-40-CR-0002837-2016.


BEFORE: LAZARUS, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                              FILED MAY 09, 2018

        James Kearns appeals from the judgment of sentence imposed after a

jury convicted him of defiant trespass, theft and two counts of simple

assault.1     Finding no merit to Kearns’ claim that the trial court erred in

admitting evidence of his other bad acts, we affirm.

        The trial court summarized the pertinent facts presented at Kearns’s

jury trial as follows:

            After a June 4, 2016 domestic violence incident between
            [Kearns] and his girlfriend, Kayla Hamilton (Hamilton),
            [Kearns] was charged with Defiant Trespass, Theft, and
            two counts of Simple Assault. The day after the incident,
            Hamilton gave a written statement to police in which she
            told police that [Kearns] came to her home at 5:00 a.m.
            on June 4, 2016, to spend time with the couple’s son,
____________________________________________


1   18 Pa.C.S.A. §§ 3503, 3921, and 2701, respectively.
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         [K.C.]. In the statement, Hamilton reported that [Kearns],
         using profanity, asked her to leave him alone because he
         was tired so she asked him several times to leave if he
         wasn’t there to see the baby. Hamilton stated that he
         then began to hit her, smack her in the head and kick her.
         She stated that she took her phone and started to call his
         father to come and get him. [Kearns] snatched the phone
         and said, “If someone comes to the door, watch what
         happens.” She further stated that he “grabbed a knife and
         threatened to cut [her] mattress. He then took her phone
         and keys and tried to leave. After trying to get her things
         back, Hamilton said that [Kearns] again hit her on the
         back and face and left the apartment with her belongings.
         According to Hamilton’s statement, [Kearns] called her
         mother later that day to tell her he was going to return the
         items. Hamilton said her mother later met [Kearns], who
         returned the phone and car key but not the house key. On
         June 10, 2016, Hamilton’s mother received a text message
         from [Kearns] reading, “I swear on everything I love, if
         Kayla keeps playing with me, I’m going to kill her. I don’t
         care about cops or jail. If she continues playing games
         [K.C.] will be without both parents.” Hamilton’s mother
         reported the threatening text message to the police.

            Although Hamilton was originally cooperating with the
         prosecution, prior to trial she expressed her intention to
         refuse to testify and to assert the Fifth Amendment. At
         the Commonwealth’s request, she was granted immunity.
         At trial, when asked about the incident, Hamilton claimed
         that she did not remember what happened. Hamilton
         further testified that she may have lied about and
         dramatized some of the things she said in the statement.

            A jury trial was held on April 25, 2017. Prior to trial,
         the Commonwealth sought the admissibility of the June
         10, 2016 text message by filing a Motion in Limine:
         Commonwealth’s Intention to Introduce Other Bad Acts
         Under Pa.R.E. 404(B). The court heard a proffer and oral
         argument from both parties before jury selection.
         Thereafter, the Commonwealth’s Motion was granted
         subject to proper authentication.

Trial Court Opinion, 10/23/17, at 1-2 (citations omitted).



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      The jury convicted Kearns on all charges. On July 6, 2017, the trial

court sentenced him to an aggregate term of 6 to 24 months less one day,

and a consecutive one-year probationary term.         See Sentencing Order.

7/6/17.   This timely appeal follows.   Both Kearns and the trial court have

complied with Pa.R.A.P. 1925.

      Kearns raises the following issue on appeal:

             Whether the trial court erred in granting the
          Commonwealth’s Motion in Limine to introduce into
          evidence a text message allegedly sent from [Kearns] to
          [Hamilton’s] mother when the message was not relevant
          for any other purpose other than to prove [his] criminal
          character or propensity, where the probative value of such
          evidence did not outweigh the unfair prejudice against
          [him].

Kearns’ Brief at 1.

      “Admission 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. Drumheller, 808 A.2d 893, 904 (Pa.

2002). “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.

Harris, 884 A.2d 920, 924 (Pa. Super. 2005).

      The admissibility of other bad acts of a defendant is governed by

Pennsylvania Rule of Evidence 404(b), which reads as follows:




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         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).

      “[E]vidence of [other] crimes is not admissible for the sole purpose of

demonstrating     a    criminal    defendant’s   propensity   to   commit   crimes.”

Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, 1283 (Pa.

Super. 2004) (en banc).           Nevertheless, “[e]vidence may be admissible in

certain circumstances where it is relevant for some other legitimate purpose

and not utilized solely to blacken the defendant’s character.”                  Id.

Specifically, evidence of other crimes or bad acts is admissible if offered for

a non-propensity purpose, such as proof of an actor’s knowledge, plan,

motive, identity, or absence of mistake or accident.           Commonwealth v.

Chmiel, 889 A.2d 501 (Pa. 2005). When offered for a legitimate purpose,

evidence of prior crimes or bad acts is admissible if its probative value

outweighs its potential for unfair prejudice. Commonwealth v. Hairston,

84 A.3d 657, 665 (Pa. 2014).

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         The list of non-propensity uses enumerated in the rule is non-

exhaustive. See Pa.R.E. 404(b) Comment. One use of such evidence not

listed within the rule, but recognized by case law, is the res gestae

exception. The res gestae exception to Rule 404(b) permits the admission

of evidence when it becomes part of the history of the case and formed part

of the natural development of the facts. Commonwealth v. Solano, 129

A.3d 1156, 1178 (Pa. 2015).           This exception allows the admission of

evidence of other crimes or bad acts to tell the fact-finder “the complete

story.”    Hairston, 84 A.3d at 665.        “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.” Commonwealth

v. Brown, 52 A.3d 320, 326 (Pa. Super. 2012) (citation omitted). Evidence

of prior or other bad acts “may also be introduced to prove consciousness of

guilt,    i.e.,   that   the   defendant   was   aware   of   his   wrongdoing.”

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

         The trial court found no merit to Kearns’ appellate claim, as it

determined that the text message the Commonwealth wished to introduce

into evidence had more than one non-propensity use and was not unduly

prejudicial. As to the former, the court explained:

              We agree with the Commonwealth’s position and
           therefore found that the text was not offered to prove the
           criminal propensity of [Kearns], but was offered as part of
           the res gestae of the crime with which [he] was charged
           and convicted. The threat to Hamilton’s life, made by text
           six days after she reported [Kearns’s] anger-filled incident
           to the police, was part of the natural development of the

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         facts. The admission of the text message “completes the
         story” of the case and explains to the jury why Hamilton,
         the victim in this matter, was no longer willing to
         voluntarily testify at the trial.

                                      ***

            We find that [Kearns’] threatening to kill Hamilton in
         the text message was also evidence tending to prove his
         consciousness of guilt. The instant case has a similarity to
         Ivy in that both cases involved defendants attempting to
         coerce their victims into refusing to cooperate with
         investigations into the criminal charges against them. In
         this case, the text message threatening to kill Hamilton is
         especially important because it provides the jury, who was
         without the full benefit of her testimony, the context in
         which she refused to voluntarily testify.

Trial Court Opinion, 10/23/17, at 5-7. The trial court also agreed with the

Commonwealth “that the probative value of the text message outweighs its

prejudicial effect,” in that “it was not so prejudicial as to divert the jury’s

attention away from its duty of weighing the evidence impartially.” Id. at 9.

      In support of his issue on appeal, Kearns argues that evidence of the

text message at issue “does not fall under an exception” to Rule 404(b) and

“is unfairly prejudicial.”   Kearns’ Brief at 5.   He first argues that the res

gestae exception “is only properly applied when ‘the other bad acts are part

of the same transaction involving the charged crime.’”         Id. at 6 (citing

Brown, supra).        According to Kearns, the text message received by

Hamilton’s mother “was a separate incident, unrelated to the events of June




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4, 2016.”     Id.2    He further argues that, because Hamilton immediately

reported to police the incident giving rise to his charges, this case is unlike

Commonwealth v. Dillon, 863 A.2d 597 (Pa. Super. 2004), upon which

the trial court allegedly relied.

       Kearns also argues that there was no evidence introduced at trial to

establish that Hamilton was even aware of the contents of the text message

her mother received.            Indeed, he asserts that, at trial, “Hamilton

acknowledged that she and [Kearns] are currently a couple, living and

raising their son together.        Given the situation, [Hamilton] has a vested

interest in [Kearns] not going to prison. Kearns’ Brief at 7.

       With regard to the trial court’s determination that evidence of the text

message was admissible as consciousness of his guilt, Kearns argues that

the court’s likening the facts presented to those involved in Ivy, supra, was

inapposite, because Ivy involved the use of a third party to threaten the

victim so that she would withdraw the charges against the defendant.

Because the text message in this case did not even reference the charges

Hamilton filed, or demanded their withdrawal, Kearns asserts that the text

message did not indicate his consciousness of guilt.




____________________________________________


2Kearns further emphasizes that the victim’s mother characterized the text
message as a separate incident. The weight to be given her testimony was
exclusively for the jury as fact finder to determine.



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         Finally, by permitting the admission of the text message, Kearns

asserts that “the Commonwealth and trial court improperly presented the

jury with unduly prejudicial evidence.”        Kearns’s Brief at 8.   According to

Kearns, “[t]he text message only served to show the jury [his] propensity to

make threats against [Hamilton], preventing the jury from weighing the

evidence in dispute fairly and impartially.” Id.

         We find no merit to Kearns’s arguments.       We first disagree with his

characterization of the text message as a separate incident, rather than part

of the “same transaction” required for admission under the res gestae

exception.       On the same day as the domestic incident, Kearns returned a

majority of Hamilton’s property to her mother.                 Hamilton’s mother

acknowledged at trial that she then sent Kearns a text message inquiring as

to the location of the house key because it was not returned.              See N.T.,

4/25/17, at 59.        Thereafter, Kearns sent the mother the text message at

issue.    Although Kerns made no direct demand that Hamilton to withdraw

the charges within the text message, his threat that “if Kayla keeps playing

me, I’m going to kill her” was a reference to the domestic incident that led

to his charges.        Not only does this threat “complete the story,” and was

therefore admissible under the res gestae exception, but also, as in Ivy,

indicates Kearns’ consciousness of guilt.

         While   the   record supports   Kearns’   assertion   that   no    evidence

established that Hamilton knew about the text message, this omission in

evidence can be explained by the fact that the jury “was deprived of the full

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benefit” of Hamilton’s testimony. See Trial Court Opinion, supra. One can

infer Hamilton knew of the text message, which is why she refused to

voluntarily testify. While Kearns opines that Hamilton’s refusal to testify was

because they now are living as a family, the credibility and weight given

either scenario was exclusively for the jury to determine.

      In addition, the fact that the text message was received six days after

the initial incident that gave rise to the charges does not alter our

conclusion. “Although evidence of prior occurrences which is too remote is

not properly admissible[,] it is generally true that remoteness of the prior

instances of hostility and strained relations affects the weight of the

evidence and not its admissibility.” Commonwealth v. Ulatoski, 371 A.2d

186, 191 (Pa. 1977) (citation and footnote omitted). However, “no rigid rule

can be formulated for determining when such evidence is no longer

relevant.” Id. “What that limit of time should be must depend largely on

the circumstances of each case, and ought always to be left to the discretion

of the trial court.” Id. at 191-92. Here, although the text message at issue

was received six days after the original domestic incident which gave rise to

the charges, it is not too remote, especially considering the mother’s

involvement with retrieving the victim’s property taken during the incident,

and her texting him after the return of the property to ask about the house

key that was not returned.

      Finally, we find no merit to Kearns’ claim that admission of the text

message was unduly prejudicial.       As our Supreme Court has recently

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explained, “[T]he trial court is not 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.”

Hairston, 84 A.3d at 666 (citation omitted). Although, by their very nature,

evidence of prior or other bad acts is prejudicial to a criminal defendant, the

acts at issue in this case were not unduly prejudicial. This is especially true,

when, as in this case, the trial court, as part of its final instructions to the

jury, gave a cautionary instruction as to how the jury was to limit its

consideration of this evidence.     See, e.g., Commonwealth v. Claypool,

495 A.2d 176, 179-80 (Pa. 1985) (concluding that the trial court’s giving of

a detailed cautionary instruction was sufficient to overcome prejudicial effect

of the introduction of prior bad acts evidence).    Included within its closing

instructions to the jury, the trial court stated:

            In this trial you also heard evidence tending to prove
         that [Kearns] engaged in improper conduct for which he is
         not on trial. I am speaking of the testimony to the effect
         that [Kearns] may have sent a threatening text message.
         This evidence is before you for a limited purpose; that is,
         for the purpose of tending to show the history of this case
         and/or [Kearns’] intent, state of mind, motive, or absence
         of a mistake.

            This evidence must not be considered by you in any
         way other than for the purposes I just stated. You must
         not regard this evidence as showing that [Kearns] is a
         person of bad character or criminal tendencies, from which
         you might infer his guilt in this case.




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N.T., 4/26/17, at 111.    A jury is presumed to follow the trial court’s

instructions. Commonwealth v. Faurelus, 147 A.3d 905, 915 (Pa. Super.

2016).

     In sum, because the trial court did not abuse its discretion in admitting

the evidence of the text message, we affirm Kearns’ judgment of sentence.

     Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/9/2018




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