J-A33034-14


                                  2015 PA Super 122

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellant

                       v.

ROBERT N. SITLER

                            Appellee                        No. 3051 EDA 2013


                  Appeal from the Order of November 1, 2013
             In the Court of Common Pleas of Montgomery County
               Criminal Division at No.: CP-46-CR-0000389-2013



BEFORE: LAZARUS, J., WECHT, J., and STRASSBURGER, J.*

CONCURRING AND DISSENTING OPINION BY WECHT, J.:FILED MAY 21, 2015

       I join the learned Majority in two respects.          First, I agree with the

Majority that, because Sitler has not yet pleaded guilty to any crimen falsi

offenses, the issue of whether any evidence pertaining to those particular

offenses would be admissible at Sitler’s homicide by vehicle trial is not yet

ripe for review.     See Maj. Op. at 8-9.        I also agree with the Majority in

upholding the trial court’s order holding the evidence related to Sitler’s

consumption of three alcoholic beverages approximately three hours before

driving the truck inadmissible.         Id. at 13-18.    I join those portions of the

Majority’s opinion.

____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
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       However, I disagree with the Majority’s conclusion that Sitler’s prior

vehicular manslaughter conviction in Alabama was inadmissible at Sitler’s

upcoming trial.       In my view, the Commonwealth correctly asserts that

Sitler’s conviction was admissible as a prior bad act pursuant to Pa.R.E.

404(b) to prove Sitler’s knowledge that his conduct could result in the death

of another person for purposes of proving, inter alia, the recklessness

element of homicide by vehicle.           See Brief for Commonwealth at 29-30.1

Thus, I respectfully dissent from the portion of the Majority’s opinion holding

otherwise.2

       Evidence of prior bad acts is governed by Rule 404(b) of our rules of

evidence.

       Evidence of prior bad acts is generally inadmissible to prove
       character or to show conduct in conformity with that character.
       Pa.R.E. 404(a)(1). Such evidence is, however, admissible when
       offered to prove other relevant facts, such as motive,
       opportunity, intent, preparation, plan, knowledge, identity,
       absence of mistake, or res gestae to give context to events
       surrounding a crime. While evidence of prior bad acts may be
       relevant   and    admissible,  due   to   the    potential  for
____________________________________________


1
      The Commonwealth also notes in its brief that the prior conviction
would be relevant to demonstrate “lack of accident” under Rule 404(b). See
Brief for Commonwealth at 23. However, the Commonwealth does not
develop this argument. Rather, the Commonwealth focuses the entirety of
its argument upon the knowledge exception to Rule 404’s general
proscription on the admission of prior bad acts. Thus, I will not address the
Commonwealth’s “lack of accident” argument.
2
      Because the Majority aptly has summarized the factual and procedural
history of this case, I need not repeat that information here.




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      misunderstanding,    cautionary   instructions    are   sometimes
      required.

Commonwealth v. Reid, 99 A.3d 427, 451 (Pa. 2014) (citations omitted).

“The Commonwealth must prove beyond a reasonable doubt that a

defendant has committed the particular crime of which he is accused, and it

may not strip him of the presumption of innocence by proving that he has

committed other criminal acts.” Commonwealth v. Ross, 57 A.3d 85, 98-

99 (Pa. Super. 2012) (en banc) (citations omitted).

      As the Majority notes, in Ross, an en banc panel of this Court

acknowledged the possibility that Rule 404(b)(2)’s exceptions could swallow

the general rule. The Ross panel offered the following caution:

      The purpose of Rule 404(b)(1) is to prohibit the admission of
      prior bad acts to prove “the character of a person in order to
      show action in conformity therewith.” Pa.R.E. 404(b)(1). While
      Rule 404(b)(1) gives way to recognized exceptions, the
      exceptions cannot be stretched in ways that effectively eradicate
      the rule. With a modicum of effort, in most cases it is possible
      to note some similarities between the accused’s prior bad act
      conduct and that alleged in a current case. To preserve the
      purpose of Rule 404(b)(1), more must be required to establish
      an exception to the rule—namely a close factual nexus sufficient
      to demonstrate the connective relevance of the prior bad acts to
      the crime in question. . . . [T]his Court has warned the prior bad
      acts may not be admitted for the purposes of inviting the jury to
      conclude that a defendant is a person “of unsavory character”
      and thus inclined to have committed the crimes with which
      he/she is charged. See, e.g., Commonwealth v. Kjersgaard,
      419 A.2d 502, 505 (Pa. Super. 1980).

Ross, 57 A.3d at 105-06 (citation modified).           I have considered this

warning.   Upon reviewing the issue carefully, I nonetheless conclude that

there exists in this case “a close factual nexus sufficient to demonstrate the

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connective relevance” of Sitler’s prior conviction for vehicular manslaughter

to the principal charge at issue in the present case.

      Sitler is charged with, inter alia, homicide by vehicle.    A person is

guilty of homicide by vehicle if he “recklessly or with gross negligence

causes the death of another person while engaged in the violation of any law

of this Commonwealth or municipal ordinance applying to the operation or

use of a vehicle . . ., when the violation is the cause of death.” 18 Pa.C.S. §

3732(a).   Recklessness, an essential element of homicide by vehicle, is

defined as follows:

      A person acts recklessly with respect to a material element of an
      offense when he consciously disregards a substantial and
      unjustifiable risk that the material element exists or will result
      from his conduct. The risk must be of such a nature and degree
      that, considering the nature and intent of the actor’s conduct
      and the circumstances known to him, its disregard involves a
      gross deviation from the standard of conduct that a reasonable
      person would observe in the actor’s situation.

18 Pa.C.S. § 302(b)(3) (emphasis added).            Thus, the mens rea of

recklessness implicates knowledge in two ways: (1) the actor must

consciously (i.e., with knowledge) disregard a substantial and unjustifiable

risk; and (2) the risk that the actor disregards is measured by the

circumstances known to the actor.       By any reasonable measure, Sitler’s

knowledge that his conduct created a risk that he subsequently disregarded

is central to the Commonwealth’s case against him.         Facially, therefore,

Sitler’s prior conviction for vehicular manslaughter would be admissible

pursuant to    the    knowledge   exception codified in Pa.R.E. 404(b)(2).

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However, per Ross, I must ascertain whether a close factual nexus exists

between the two events before determining admissibility with finality.

      The Commonwealth alleges that Sitler, driving his pick-up truck,

followed perilously close to the rear bumper of Ms. Qawasmy’s van. When

Ms. Qawasmy activated her turn signal and initiated a right hand turn, Sitler

purportedly revved his engine, sped past Ms. Qawasmy’s van, and struck a

pedestrian, all while driving at least fifteen miles per hour over the speed

limit. The facts of Sitler’s Alabama conviction bear a sufficient resemblance

to those in the case sub judice. In 2006, Sitler pleaded guilty to vehicular

manslaughter, a crime which also requires a demonstration of recklessness.

In that case, Sitler was driving closely behind another vehicle early in the

morning through a dense fog. When the driver in front of Sitler applied his

brakes, Sitler swerved around that driver and hit an oncoming vehicle, killing

a person inside. Sitler pleaded guilty to the crime, including the factual and

legal averment that his actions were reckless and that said recklessness

resulted in the death of another person.

      Although the facts of the cases differ in trivial ways, the commonalities

between the two are amply sufficient to create the necessary nexus

rendering the Alabama conviction admissible in the instant case.       In both

cases, Sitler was operating a motor vehicle too closely to another vehicle

while travelling at an excessive speed and attempted to pass the other

vehicle when it braked; that combination of factors led to the death of

another person while Sitler attempted the pass.            Because of these

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similarities, I would hold that the Alabama conviction is admissible to

demonstrate that Sitler knew that his hazardous driving created a

substantial risk that the death of another may result therefrom.           The

conviction is also relevant to prove not only that Sitler knew of the risk, but

also that he consciously disregarded it.

      Finally, even though facially admissible, the probative value of prior

bad acts evidence must still outweigh its “potential for unfair prejudice.”

Pa.R.E. 404(b)(2). There is inherent prejudice any time a prior bad act such

as a criminal conviction is introduced against a criminal defendant. That is

why we have been, and should be, very cautious in our evaluation of these

claims, and also why the en banc panel issued the warning excerpted from

Ross above. However, recklessness is a component central to a homicide

by vehicle prosecution, and knowledge is essential to that proof. As such,

the prior conviction in this case has significant probative value.         The

probative value would outweigh any potential prejudice that might inhere

from the introduction of the prior crime, particularly if the crime is

introduced to the jury along with a cautionary instruction by the trial court.

See Russell, 938 A.2d at 1092 (holding that admission of prior juvenile

adjudication to prove arsonist’s knowledge of accelerants was not unfairly

prejudicial because, inter alia, the evidence was accompanied by a curative

instruction.).

      For all practical purposes, the Majority’s conclusion that the evidence

was inadmissible rests exclusively upon its premise that everyone who

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drives knows that driving recklessly creates risk to other drivers and

pedestrians. See Maj. Op. at 12, 13. However, the inquiry is not so simple.

As set forth above, proof of knowledge plays a vital role in the

Commonwealth’s burden of proof for a homicide by vehicle prosecution. The

Majority ignores this role in toto, apparently believing that, because every

driver knows that driving recklessly creates risk, no other evidence of

knowledge has any probative value.      I simply cannot ignore the probative

value that Sitler’s prior conviction has in a case such as this, as the Majority

would.

      In my view, the trial court abused its discretion by granting Sitler’s

motion in limine. For the preceding reasons, I would hold that Sitler’s prior

conviction is admissible pursuant to Pa.R.E. 404(b)(2). Because the Majority

concludes otherwise, I respectfully dissent.




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