J-A06004-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellant

                        v.

    LORI ANN TRESSLER,

                             Appellee                 No. 970 WDA 2017


                 Appeal from the Order Entered June 22, 2017
                In the Court of Common Pleas of Fayette County
              Criminal Division at No(s): CP-26-CR-0000011-2016


BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                              FILED MAY 15, 2018

        The Commonwealth files this interlocutory appeal pursuant to Pa.R.A.P.

311(d) from the trial court’s order granting Lori Ann Tressler’s (“Appellee”)

motion in limine. The Commonwealth charged Appellee with homicide for the

death of Robert Lee Engle (“Victim”), who suffered a single stab wound to the

heart. Appellee sought to exclude evidence of her numerous prior stabbings

of Victim under the general ban on the admission of prior bad acts evidence.

The court granted that motion, and the Commonwealth has certified that the

trial court’s order has substantially handicapped their case.     After careful

review, we affirm in part and reverse in part.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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       The following preliminary facts were taken from the multiple affidavits

of probable cause filed in this case.1 Appellee and Victim were romantically

involved and living together in Smithfield, PA, a small borough in Fayette

County. The pair were out drinking with two friends on the evening of August

21, 2015, which continued into the early morning of August 22, 2015. When

they returned home, Victim became involved in a verbal altercation with

Appellee and her son, Jeffrey Tressler (“Jeffrey”), outside of their mutual

residence. At some point, Victim may have pushed Appellee to the ground.

Subsequently, the Commonwealth alleges that Appellee retrieved a kitchen

knife from inside the home, returned outside, and stabbed Victim once in the

chest. Victim sought help by walking to a neighbor’s home and knocking on

their door but, shortly thereafter, he collapsed and died from his wound.

       On January 20, 2016, the Commonwealth charged Appellee by criminal

information with homicide, 18 Pa.C.S. § 2501.        On February 22, 2017,

following the Commonwealth’s giving notice of its intent to introduce prior bad

acts evidence, Appellee filed a motion in limine seeking to exclude that

evidence.    See Appellee’s Motion in Limine, 2/22/17, at 1-3 (unnumbered

pages).      Specifically, Appellee sought to exclude evidence that the

Commonwealth had previously charged her with aggravated assault, simple

assault, and harassment, against Victim on a prior occasion, charges which

were ultimately dismissed or otherwise withdrawn. She also sought to exclude
____________________________________________


1See Affidavit of Probable Cause, 8/22/15, at 1 (Trooper Broadwater); and
see Affidavit of Probable Cause, 8/22/15, at 1-2 (Trooper Dowlin).

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evidence that she had been previously listed as the accused or the victim in

incidents of domestic violence in prior police reports, incidents which did not

result in formal charges, and testimonial evidence from “numerous” witnesses

regarding these prior charged and uncharged incidents. Id. at 1-2 ¶ 4. Even

more broadly, Appellee sought to exclude

       any and all evidence referencing any prior incident between
       [Appellee] and the alleged victim, including but not limited to, the
       2009 criminal charges and related incident; any other criminal
       matter; any protection from abuse proceedings or other domestic
       abuse proceedings involving [Appellee]; any prior bad acts
       involving [Appellee] and any other individual; and any statements
       referencing any prior incidents that will prejudice [Appellee]’s
       case….

Id. at 2 ¶ 7. Appellee argued that such evidence is “clearly prejudicial” to her

case, and inadmissible under Pa.R.E. 404(b)(1) (“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.”). Id. at ¶ 6.

       On June 22, 2017, the trial court entered an order granting Appellee’s

motion in limine with regard to this prior bad acts evidence, and

contemporaneously provided an opinion in support thereof.2             Trial Court

Opinion (TCO), 6/22/17, at 1.           Specifically, the trial court precluded the

Commonwealth

       from introducing evidence of [Appellant]’s prior bad acts related
       to the 2009 incident for which [Appellant] was charged and
____________________________________________


2The trial court also denied the motion in limine with regard to other matters
not pertinent to this appeal.

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      charges were dismissed. In addition, the Commonwealth, during
      its case in chief, is precluded from introducing evidence of prior
      attempted stabbings or occasions when [Appellant] retrieved a
      knife while arguing with … [V]ictim in this case.

Order, 6/23/17, at 1.    Notably, the trial court reserved judgment “on the

admissibility of prior bad acts evidence once the defense rests, should the

Commonwealth present any rebuttal witnesses.” Id. Thus, the scope of the

trial court’s order was limited to the Commonwealth’s case in chief.

      On July 6, 2017, the Commonwealth filed a notice of interlocutory

appeal pursuant to Pa.R.A.P. 311(d) (“In a criminal case, under the

circumstances provided by law, the Commonwealth may take an appeal as of

right from an order that does not end the entire case where the

Commonwealth certifies in the notice of appeal that the order will terminate

or substantially handicap the prosecution.”). The trial court did not order the

Commonwealth to file a Pa.R.A.P. 1925(b) statement. Instead, the trial court

issued a statement in lieu of a Pa.R.A.P. 1925(a) opinion, incorporating its

June 22, 2017 opinion. Statement in Lieu of Opinion, 8/4/17, at 1-2.

      The Commonwealth now presents the following single question for our

review:

      Whether the [t]rial [c]ourt erred in precluding the Commonwealth
      and thereby substantially handicapping the prosecution, from
      introducing evidence of [Appellee]’s prior bad acts, including
      testimony regarding instances when she had previously stabbed
      the decedent and/or [Appellee]’s previous propensity to retrieve
      a knife during arguments with the decedent?

Commonwealth’s Brief at 4.




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      The standard of review for evidentiary rulings of the lower court is well

settled.    Admissibility of evidence “is a matter addressed to the sound

discretion of the trial court, and an appellate court may reverse only upon a

showing that the trial court abused its discretion.”               Commonwealth v.

Odum, 584 A.2d 953, 954 (Pa. Super. 1990) (quoting Commonwealth v.

Claypool, 495 A.2d 176, 178 (Pa. 1985)).

      The Pennsylvania Rules of Evidence provide that: “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.”    Pa.R.E. 404(b)(1).         Nevertheless, “[t]his evidence may be

admissible 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). Our Supreme Court has determined that Rule

404(b)(2)     does   not   provide   an    exclusive   list   of   exceptions.   See

Commonwealth v. Lark, 543 A.2d 491, 497 (Pa. 1988) (stating that the “list

of ‘special circumstances’ is not exclusive”). Nevertheless, “[i]n a criminal

case this evidence is admissible only if the probative value of the evidence

outweighs its potential for unfair prejudice.” Id. (emphasis added).

      The Commonwealth asserts that the precluded evidence was admissible

in their case in chief under numerous Rule 404(b)(2) exceptions, and that the

evidence’s probative value outweighed its potential for unfair prejudice. In its

opinion, the trial court rejected the application of any Rule 404(b)(2)

exception and, alternatively, ruled that even if admissible under one of those

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exceptions, the potential prejudice of such evidence still outweighed any

probative value.

      Thus, we must engage in a two-step analysis of the trial court’s ruling

to determine if the court abused its discretion by excluding the prior bad acts

evidence at issue. First, we must decide if one or more of the Rule 404(b)(2)

exceptions apply to the evidence in question. If not, our inquiry ends, and we

must find that the trial court did not abuse its discretion. If we do find that

one or more of the Rule 404(b)(2) exceptions apply, we must consider

whether the trial court abused its discretion by ruling that the probative value

of such evidence was outweighed by its potential for unfair prejudice.

      The prior bad acts evidence at issue, generally speaking, consists of

testimony by various witnesses concerning prior incidents where Appellee

used a knife to stab Victim. With regard to the prior bad act that resulted in

Appellee’s arrest for assault charges, the Commonwealth would call two police

officers to testify about the facts of that specific case. With regard to various

acts that did not result in an arrest or criminal charges, the Commonwealth

would call Appellee’s son, who would testify that Appellee “personally

stab[bed] [V]ictim at least 20 times, and that he was personally stabbed by

… Appellee.” Commonwealth’s Brief at 7. Additionally, the Commonwealth

would call Victim’s mother to testify that she often observed Victim with “fresh

stab wounds on his body, which … Appellee would brag that she had caused.”

Id. Where it is appropriate to differentiate between these categories, we will

refer to “prior arrest evidence,” “testimony of Appellee’s son,” and “testimony

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of Victim’s mother,” respectively. We will refer to this evidence, collectively,

as the prior bad acts evidence (“PBA evidence”).

                                    Motive

      The Commonwealth claims that the PBA evidence was relevant to

demonstrate Appellee’s motive to stab Victim. To be admissible under Rule

404(b)(2), there “must be a specific logical connection between the other act

and the crime at issue which establishes 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. Ross, 57 A.3d 85, 100 (Pa. Super.

2012) (quotation marks omitted). The Commonwealth alleges that the PBA

evidence “supports a finding of motive[,]” because of “similarities between the

prior bad acts and the crime at issue,” which the Commonwealth sets forth as

follows:

      (a) Appellee utilized the same type of weapon, specifically, a
      kitchen steak knife; (b) Appellee primarily attacked the same
      victim, namely Robert Engle; (c) Appellee was engaged in an
      argument with [V]ictim at the time of the stabbings; and, (d) []
      Appellee was imbibing in alcohol at the time of the incidents, or
      immediately prior thereto.

Commonwealth’s Brief at 10.

      The trial court rejected this theory, indicating that it could not find any

logical connection between the PBA evidence and a potential motive for

Appellee’s stabbing of Victim. TCO at 3. Indeed, the Commonwealth does

not even postulate a motive that is ostensibly suggested by the PBA evidence

at issue in this case.


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      In Commonwealth v. Martin, 387 A.2d 835 (Pa. 1978), thirteen days

prior to his murder, the victim had struck the appellant with a chair when the

appellant was attempting to rob others. Our Supreme Court held that it was

reasonable to conclude that a revenge motive for the subsequent murder

could be demonstrated by evidence of the prior bad act. Martin, 387 A.2d at

838. Notably, there was very little that was similar between the prior bad act

and the subsequent murder in that case, apart from the involvement of the

same parties.   By contrast, in Ross, it was alleged that the appellant had

sexually assaulted, strangled, and ultimately drowned the victim. Numerous

prior bad acts by Ross bore similarities to the murder, including his inebriation

during the offenses, his choking of the victims, his sexual assaulting of the

victims with a foreign object, and common attributes shared by each of the

victims. Nevertheless, the Ross Court concluded that evidence of such prior

bad acts evidence did not tend to demonstrate a motive in the new case.

      The instant case is more analogous to Ross than it is to Martin. While

significant similarities exist between the PBA evidence and Victim’s murder,

there is no obvious logical connection between the PBA evidence and the

current offense in terms of Appellee’s motive. Accordingly, we conclude that

that the trial court did not abuse its discretion when it precluded the

Commonwealth from introducing the PBA evidence under a motive theory.

                          Intent/Lack of Accident

      Next, the Commonwealth suggests that the PBA evidence was relevant

to prove Appellee’s intent to kill Victim or, relatedly, that Victim’s death did

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not result from an accident.    The Commonwealth states that “[g]iven the

circumstances surrounding [Victim]’s murder, [resulting from] a single stab

wound to the heart, there can be a question as to [Appellee’s] intent….”

Commonwealth’s Brief at 10. The Commonwealth further argues:

      Appellee may raise the defense that she did not intend for the
      victim to die as a result of the stabbing. During her oral recorded
      statement, Appellee told police that she threw a drawer full of
      kitchen utensils at [V]ictim. The Commonwealth contends that
      this prior bad act testimony will demonstrate that Appellee's intent
      was to inflict a stab wound on the victim on the night in question[].
      There was no mistake or accident that a knife penetrated the
      victim's heart. This prior bad act testimony supports this essential
      and required element. Accordingly, prior bad acts testimony
      should be permitted with regard to intent.

Id. at 10-11.

      The trial court rejected this argument, reasoning:

      The fact that [Appellee] may have retrieved a kitchen or steak
      knife on many prior occasions when there were domestic disputes
      with [Victim] does not necessarily tend to prove that her intent
      on this particular occasion was in fact to kill him. Evidence of
      these prior acts would simply show that [Appellee] responded to
      domestic disputes by grabbing a kitchen or steak knife.

TCO at 3 (emphasis added).

      The intent, absence of mistake, or lack of accident exceptions set forth

in Rule 404(b)(2) are often one and the same, especially when there is reason

to believe that the nature of a particular defense will be that the criminal act

in question was done unintentionally. In seeking to undermine or disprove

such a claim, there are few hairs to split between proving the actor’s intent,




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and disproving whether an act was accidental. These exceptions, therefore,

often go hand-in-hand, as they appear to do in this case.

      Here, Appellee told police that she threw a drawer full of kitchen utensils

at Victim, clearly suggesting that the resulting single, fatal stab wound to

Victim’s heart was accidental. The PBA evidence tends to suggest otherwise,

given the wealth of evidence potentially demonstrating Appellee’s frequent

and intentional prior stabbings of Victim. The PBA evidence tends to suggest

that the stabbing at issue was not an accident and, simultaneously, that the

stabbing was intentional rather than unintentional.

      Nowhere in our review of the relevant case law, nor in Rule 404(b)(2)

itself, could we find the applicable standard expressed in the absolutist

language used by the trial court, such that prior bad acts evidence must

necessarily prove or necessarily tend to prove one of the enumerated

exceptions to be admissible. To be sure, it is possible that a defendant who

acted intentionally on a thousand prior occasions could act unintentionally or

by mistake on the 1001st occasion of committing a similar act. Indeed, when

considering the identity exception, it is possible that a serial killer could

deviate from his usual pattern, or that another person could copy his

distinctive pattern.   Nevertheless, what the prior acts tend to prove is not

synonymous with what they prove out of necessity. Evidence is relevant if it

“tends to establish a material fact, makes a fact at issue more or less

probable, or supports a reasonable inference supporting a material




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fact….”   Commonwealth v. Boczkowski, 846 A.2d 75, 88 (Pa. 2004)

(emphasis added).

      Thus, the standard applied by the trial court in dismissing the

Commonwealth’s argument based on the intent exception was too strict, and

appears to impose a weight standard on the PBA evidence, rather than merely

determining its admissibility. Here, the PBA evidence tends to make it less

probable that Victim died as the result of an accident or mistake. It similarly

tends to make it more probable that Appellee acted intentionally when she

stabbed Victim. Moreover, the trial court’s limited focus on the specific intent

to kill was misplaced.    Appellee was not charged solely with first-degree

murder; she was charged with a more general provision, criminal homicide,

18 Pa.C.S. § 2501(a).       “A person is guilty of criminal homicide if he

intentionally, knowingly, recklessly or negligently causes the death of another

human being.” 18 Pa.C.S. § 2501(a).

      As noted previously, we are cognizant that the trial court limited its

ruling on the PBA evidence to the Commonwealth’s case-in-chief, which

suggests that the trial court is willing to reconsider its ruling depending on the

nature of the defense presented at trial.       However, in Boczkowski, our

Supreme Court expressly rejected the notion that “evidence of an absence of

accident must or should be presented only as responsive evidence to a

specifically-forwarded defense of accident[,]” at least with respect to murder

prosecutions. Boczkowski, 846 A.2d at 88. This is because, “[i]n a murder

prosecution, the Commonwealth bears the affirmative burden of convincing

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the jury beyond a reasonable doubt that the death was only by homicide[.]”

Id. (emphasis added). Likewise, the Commonwealth always bears the burden

of demonstrating the mens rea elements of an offense.

      In Boczkowski,

      evidence available to the Commonwealth … was suggestive that
      [the victim]'s death could have been accidental, even if [the]
      appellant did not affirmatively argue that inference. Illustrative
      are the facts that [the] appellant told paramedics at the scene that
      on the night she died [that the victim] had consumed fourteen
      beers; that he and [the victim] had been celebrating an upcoming
      event; that he had left her in the hot tub while he went to take a
      shower; and that, upon returning, he found her unconscious and
      face up in the hot tub.

Id. at 89.

      Similarly, here, Appellee told police that Victim died after she threw a

drawer full of kitchen utensils at him. This statement constitutes evidence of

an accidental death, or at least, of an unintentional killing, evidence which the

Commonwealth must effectively rebut in order to prove any degree of

homicide beyond a reasonable doubt.           Thus, based on our reading of

Boczkowski, and our analysis of the standard applied by the trial court, we

are compelled to conclude that the court erred by deeming the PBA evidence

inadmissible under either the intent or absence of mistake provisions of Rule

404(b)(2), in the Commonwealth’s case-in-chief.

               Identity/Common Scheme, Plan or Design

      Next, the Commonwealth argues that the PBA evidence was admissible

under the “identity” or “common scheme, plan or design” exceptions to the

prior bad acts ban.      The definitions of these exceptions are similar, but

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diverge as to the purpose for which they are used. The identity exception is

set forth in Commonwealth v. Shively, 424 A.2d 1257 (Pa. 1981), as

follows:

      “[]Evidence of other crimes is admissible when it tends to prove a
      common scheme, plan or design embracing the commission of two
      or more crimes so related to each other that proof of one tends to
      prove the others or to establish the identity of the person
      charged with the commission of the crime on trial, in other words
      where there is 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.” Commonwealth v. Wable,
      382 Pa. 80, 82, 114 A.2d 334, 336-37 (1955)….

Shively, 424 A.2d at 1259 (emphasis added).          Thus, the purpose of the

identity exception is, quite obviously, to prove that the identity of the accused

and the perpetrator of crime are one in the same.

      A prior-bad-acts-ban exception also exists for “a common scheme,

plan[,] or design embracing the commission of two or more crimes so related

to each other that proof of one tends to prove the other[.]” O'Brien, 836

A.2d at 969. While similarly defined, the common scheme, plan, or design

exceptions is used for purposes other than proving identity. In O’Brien, for

instance, it was used to bolster or otherwise corroborate the victim’s version

of events. Id. at 970.

      The Commonwealth contends that the PBA evidence fits within these

exceptions because, in each incident described by the PBA evidence, Appellee,

while intoxicated, used a steak knife to stab the same person, Victim, and did

so during or following a domestic dispute with Victim. The trial court rejected

the identity claim, indicating that the evidence simply did not meet the strict

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Shively standard. TCO at 3-4. The court’s specific analysis of the common

scheme, plan, or design exception, however, is absent from its opinion. See

TCO at 3-4.

       In our view, Appellee’s repeated use of the same weapon, against the

same victim, and in virtually the same circumstances (arguing with Victim at

home while intoxicated), demonstrates a pattern of conduct that is “unusual

and distinctive” to the extent that it is “like a signature.” Shively, 424 A.2d

1259. We are especially convinced in this regard due to the frequency of the

stabbings against the same target.             Nevertheless, it does not appear that

identity is yet at issue in this case, nor does it appear likely to be an issue,

especially given Appellee’s statement to police. 3 Accordingly, we agree with

the trial court that the identity exception is ill-fitted to the facts of this case.

       However, the common scheme, plan, or design exception is not

constrained by the purpose of proving identity, and we find the pattern

demonstrated by the PBA evidence to be at least as equally distinctive as the

pattern this Court observed in O'Brien. In that case, also an interlocutory

appeal from a trial court’s refusal to admit prior bad acts evidence under Rule

404(b)(2), the defendant was charged with sexually assaulting a minor.            As

described by the Commonwealth in O’Brien, the new charges were strikingly

similar to a prior offense:

____________________________________________


3At oral argument, Appellee indicated that identity might be an issue as this
matter moves forward. If that were indeed the case, then the PBA evidence
would be admissible for that purpose as well.

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      All of the charges stemmed from [the] defendant's sexually
      assaulting young boys. All of the victims shared similar personal
      characteristics. Each boy was white, between the ages of eight
      and eleven years old, and each boy knew [the] defendant because
      his parents were friends of [the] defendant. Each crime was
      committed after [the] defendant was alone with his victim, in [the]
      defendant's home and often in his bedroom, after [the] defendant
      had shown pornography to the victim. Each crime involved
      deviate sexual intercourse—either oral or anal—and, in each case,
      [the] defendant instructed the victim not to tell anyone what had
      occurred.

O’Brien, 836 A.2d at 970.

      The trial court in O’Brien precluded the Commonwealth from admitting

the evidence of the prior crime, finding that, although similar, the factual

similarities between the crimes did not rise to the level of a “signature.” Id.

at 970-71. The O’Brien Court reversed, reasoning that the trial court had

focused exclusively on the defendant’s actions, rather than “the factual

similarities of the incidents in their entirety.” Id. at 971. The appropriate

standard, the O’Brien Court determined, was to examine “the habits or

patterns of action or conduct undertaken by the perpetrator to commit crime,

as well as the time, place, and types of victims typically chosen by the

perpetrator.” Id. (emphasis added, quoting Commonwealth v. Smith, 635

A.2d 1086, 1089 (Pa. Super. 1993)).

      Here, we agree with the Commonwealth that the PBA evidence

establishes a pattern that is at least as distinctive as that which occurred in

O’Brien. Appellee has repeatedly targeted the same victim, with the same

type of weapon, in very similar circumstances (while having a domestic

dispute, after becoming intoxicated). By contrast, in O’Brien, there was only


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a single prior bad act at issue, which had involved an entirely different victim.

Accordingly, we conclude the trial court erred when it determined that the

common scheme, plan, or design exception did not apply to the PBA evidence.

                   Probative Value and Unfair Prejudice

      Having determined that multiple Rule 404(b)(2) exceptions applied to

the PBA evidence, we now turn to addressing the trial court’s alternative

analysis that, even if admissible under a Rule 404(b)(2) exception, the PBA

evidence is unduly prejudicial in relation to its probative value. Even if facially

admissible under an Rule 404(b)(2) exception, the PBA evidence may only be

admitted at trial “if the probative value of the evidence outweighs its potential

for unfair prejudice.” Pa.R.E. 404(b)(2).

         In conducting the probative value/prejudice balancing test,
         courts must consider factors such as the strength of the
         “other crimes” evidence, the similarities between the
         crimes, the time lapse between crimes, the need for the
         other crimes evidence, the efficacy of alternative proof of
         the charged crime, and “the degree to which the evidence
         probably will rouse the jury to overmastering hostility.”
         McCormick, Evidence § 190 at 811 (4th ed.1992). See also
         Commonwealth v. Frank, 395 Pa. Super. 412, 577 A.2d
         609 (1990) (enumerating balancing test factors, including
         ability for limiting instruction to reduce prejudice).

      Commonwealth v. Kinard, 95 A.3d 279, 286 (Pa. Super. 2014)
      (quoting Commonwealth v. Weakley, 972 A.2d 1182, 1191 (Pa.
      Super. 2009)). 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, 603 Pa. 92, 114–16, 982 A.2d
      483, 496–98 (2009) (internal quotation marks and citation
      omitted).



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Commonwealth v. Diehl, 140 A.3d 34, 41 (Pa. Super. 2016), appeal denied,

160 A.3d 757 (Pa. 2016).

      The trial court’s analysis of this matter, in its entirety, is as follows:

      The Court has carefully considered that even if the Commonwealth
      could show any of the exceptions set forth in Pa.R.E. 404(b)[(2)],
      the probative value of the evidence does not outweigh the
      potential for unfair prejudice.     It would be difficult, if not
      impossible, for a jury not to simply conclude that [Appellee]
      stabbed and killed [Victim] on this occasion since she stabbed or
      tried to stab him on one or twenty previous occasions. The
      purpose of Rule 404(b) is to prohibit the admission of prior bad
      acts to prove "the character of a person in order to show action in
      conformity therewith." The prior bad acts testimony offered in
      this case would certainly cause the jury to conclude that if
      [Appellee] stabbed [Victim] previously, then she must have
      stabbed him on this occasion.

TCO at 4.

      The court’s analysis is problematic for two reasons. First, the court does

not describe, nor even acknowledge, the probative value of the evidence in

question. As discussed above, the PBA evidence is probative of Appellee’s

intent, the cause of Victim’s death (in terms of lack of accident/mistake), and

the establishment of a common scheme, plan, or design between the prior

bad   acts   and   the   current   offense   to   bolster   the   accounts   of    the

Commonwealth’s proposed eyewitnesses.             The PBA evidence at issue is

especially probative in this matter given Appellee’s statement to police. Thus,

it appears that the trial court’s analysis understates, if not outright ignores,

the significant probative value of the PBA evidence in this case.




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      Second, the trial court’s summation of the prejudicial nature of the PBA

evidence is fatally nonspecific. The court merely notes the risk of prejudice

involved in all cases involving evidence of prior bad acts – the risk of the jury

assuming that a defendant would act “in accordance with the character” traits

demonstrated by the prior bad acts. Pa.R.E. 404(b)(2). In its analysis, the

trial court did not discuss any particular risks presented in the specific

circumstances of this case that would make the generic risk presented by the

PBA evidence more or less likely.

      In our view, the significant probative value of the PBA evidence at issue

generally outweighs the risk of unfair prejudice to Appellee. “Where evidence

of prior bad acts is admitted, the defendant is entitled to a jury instruction

that the evidence is admissible only for a limited purpose.” Commonwealth

v. Ivy, 146 A.3d 241, 251 (Pa. Super. 2016). Moreover, “[i]t is presumed

the jury follows the court's instructions.” Commonwealth v. Speight, 854

A.2d 450, 458 (Pa. 2004).       Thus, the risk of unfair prejudice should be

mitigated significantly by the trial court’s issuing cautionary instructions

regarding the PBA evidence.         Accordingly, with regard to the proposed

testimonies of Appellee’s son and Victim’s mother, we conclude that the

probative value of that evidence is not outweighed by the risk of unfair

prejudice, assuming, of course, that proper and adequate cautionary

instructions accompany their respective testimony.

      However, we reach the opposite conclusion with regard to the prior

arrest evidence, for the following reasons. First, Appellee’s prior arrest and

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the resulting charges did not ultimately result in a conviction. Second, the

proposed witnesses for the prior arrest evidence are two police officers who

were not represented by the Commonwealth as eyewitnesses to the bad acts

in question and, therefore, are likely to be indirect sources for the PBA

evidence arising from Appellee’s arrest on those charges.            Third, the

involvement of the criminal justice system in the prior arrest evidence risks

the jury’s placing undue weight on the veracity of those specific allegations.

Finally, the prior arrest evidence would be largely cumulative given the

proposed testimonies of Appellee’s son and Victim’s mother.          Thus, the

additional probative value of the prior arrest evidence, beyond what would be

provided by Appellee’s son and Victim’s mother, is minimal, whereas the risk

of unfair prejudice from the prior arrest evidence is substantially greater.

      In sum, we conclude that the trial court abused its discretion by

precluding the proposed testimonies of Appellee’s son and Victim’s mother, as

such evidence is admissible under several Rule 404(b)(2) exceptions, and

because the probative value of that evidence outweighs the risk of unfair

prejudice. However, with regard to the prior arrest evidence, we conclude

that while it does satisfy several Rule 404(b)(2) exceptions, the risk of unfair

prejudice outweighs its probative value.

      Order affirmed in part, reversed in part.        Remanded for further

proceedings. Jurisdiction relinquished.




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J-A06004-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/15/2018




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