J-S19027-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

NATHANIEL THOMAS, III

                            Appellant                 No. 2341 EDA 2014


            Appeal from the Judgment of Sentence August 13, 2014
               In the Court of Common Pleas of Chester County
             Criminal Division at No(s): CP-15-CR-0001018-2014


BEFORE: STABILE, J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY JENKINS, J.:                             FILED APRIL 07, 2015

        Appellant Nathaniel Thomas, III appeals from the judgment of

sentence entered in the Chester County Court of Common Pleas following his

bench trial convictions for disorderly conduct and harassment.1 We affirm.

        The relevant facts and procedural history of this appeal are as follows.

On December 4, 2013, near a parked car by some townhouses in

Phoenixville, PA, twenty-five-year-old Appellant struck sixty-seven-year-old

John McGarvey (“Victim”) in the head at least once2 after approaching, and

possibly striking, Victim’s fiancé. Police reported to the scene after a witness

called them and found Victim with a bloody lip, injured hand, and torn pants.
____________________________________________


1
    18 Pa.C.S. §§ 5503(a)(1) and 2709(a)(1), respectively.
2
 Although there is conflicting testimony in this case about how many times
Appellant struck Victim, Appellant admits to striking him at least once.
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Appellant was charged with simple assault,3 disorderly conduct and

harassment.

        On August 13, 2014, a jury acquitted Appellant of simple assault.

Later that day, the court found Appellant guilty of disorderly conduct and

harassment.4 On August 14, 2014, Appellant filed a notice of appeal and a

motion to stay his sentence pursuant to Pa.R.Crim.P. 462(g)(2). The next

day, the court granted Appellant’s motion to stay sentence and ordered

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b). Appellant timely complied on September 2,

2014.

        Appellant raises the following issue for our review:

           WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW
           AND OR ABUSED ITS DISCRETION WHEN IT BARRED
           APPELLANT FROM PRESENTING EVIDENCE IN ITS CASE IN
           CHIEF AND DISALLOWED THE QUESTIONING OF
           WITNESSES AS TO THE NATURAL DEVELOPMENT OF THE
           FACTS PURSUANT TO THE RES GESTAE EXCEPTION?

Appellant’s Brief at 4.

        Appellant argues the court erred by granting the Commonwealth’s

motion in limine to exclude the defense from presenting evidence that Victim

and his fiancé possibly attempted to commit a theft from Appellant’s car

____________________________________________


3
    18 Pa.C.S. 2701(a)(1).
4
  The record is silent as to why Appellant’s charges were not all presented to
the jury; however, that issue is not before this Court.



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earlier on the day of the fight. Appellant claims the evidence is admissible

under the res gestae exception to the general exclusion of prior bad acts

pursuant to Pa.R.E. 404(b)(1). He contends the possible theft explains why

Appellant initially approached Victim’s fiancé. Further, Appellant complains

the stipulation that “there was an issue between [Appellant], [Victim] and

[Victim’s girlfriend] earlier on December 4, 2013” was prejudicial, and he

only agreed to the stipulation because the court would not allow him to

introduce evidence of the alleged theft. Appellant concludes the court erred

by granting the motion in limine and ignoring Appellant’s repeated requests

to admit the evidence. We disagree.

     The admissibility of evidence is within the sound discretion of the trial

court and will be reversed only when there is an abuse of that discretion.

Commonwealth v. Wantz, 84 A.3d 324, 336 (Pa.Super.2014).

     Pennsylvania Rule of Evidence 404(b) provides, in relevant part:

        (b) Other crimes, wrongs, or acts.

        (1) Prohibited Uses. Evidence of other crimes, wrongs, or
        acts is not admissible to prove the character of a person in
        order to show action in conformity therewith.

        (2) Permitted Uses. Evidence of other crimes, wrongs, or
        acts may be admitted for other purposes, such as proof of
        motive, opportunity, intent, preparation, plan, knowledge,
        identity or absence of mistake or accident.

        (3) Notice in a Criminal Case. Evidence of other crimes,
        wrongs, or acts proffered under subsection (b)(2) of this
        rule may be admitted in a criminal case only upon a
        showing that the probative value of the evidence
        outweighs its potential for prejudice.

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Pa.R.E. 404(b)(1)-(3).

         As our Supreme Court has explained, “Rule 404(b)(2) reflects [that]

evidence of other crimes, wrongs, or acts may be admitted when relevant

for a purpose other than criminal character/propensity, including: proof of

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

absence of mistake.”         Commonwealth v. Dillon, 925 A.2d 131, 137

(Pa.2007) (internal quotations omitted).        Additionally, our Supreme Court

has expressly “recognized a res gestae exception to Rule 404(b) which

allows admission of other crimes evidence when relevant to furnish the

context or complete story of the events surrounding a crime.” Id. (citation

omitted).

         “Evidence is relevant if it logically tends to establish a material fact in

the case, tends to make a fact at issue more or less probable, or supports a

reasonable inference or presumption regarding the existence of a material

fact.” Commonwealth v. Minerd, 752 A.2d 225, 230 (Pa.2000) (citations

omitted). Evidence is “prejudicial” only when it is “so prejudicial that it may

inflame the jury to make a decision based upon something other than the

legal propositions relevant to the case.”        Commonwealth v. Colon, 846

A.2d 747, 753 (Pa.Super.2004) (citation omitted).

         Here, the Commonwealth moved to exclude evidence about Victim and

Victim’s fiancé possibly trying to rob Appellant’s car earlier on the day of the

fight.     The court granted the motion.         When Appellant again tried to

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introduce evidence of the alleged theft, the court stated:   “We’re going to

stick to what happened here and now. We’re not going to get into another

location.” N.T., August 12, 2014, at 77. Evidence of the possible theft did

not make the existence of any material fact more or less likely, and

therefore was properly excluded as irrelevant. See Minerd, supra.

     Appellant was convicted of the following crimes:

        § 5503. Disorderly conduct

        (a) Offense defined.--A person is guilty of disorderly
        conduct if, with intent to cause public inconvenience,
        annoyance or alarm, or recklessly creating a risk thereof,
        he:

           (1) engages in fighting or threatening, or in violent or
           tumultuous behavior;

           (2) makes unreasonable noise;

           (3) uses obscene language, or makes an obscene
           gesture; or

           (4) creates a hazardous or physically offensive condition
           by any act which serves no legitimate purpose of the
           actor.

18 Pa.C.S. § 5503.

        § 2709. Harassment

        (a) Offense defined.--A person commits the crime of
        harassment when, with intent to harass, annoy or alarm
        another, the person:

           (1) strikes, shoves, kicks or otherwise subjects the
           other person to physical contact, or attempts or
           threatens to do the same;




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               (2) follows the other person in or about a public place
               or places;

               (3) engages in a course of conduct or repeatedly
               commits acts which serve no legitimate purpose;

               (4) communicates to or about such other person any
               lewd, lascivious, threatening or obscene words,
               language, drawings or caricatures;

               (5) communicates repeatedly in an anonymous manner;

               (6) communicates repeatedly at extremely inconvenient
               hours; or

               (7) communicates repeatedly in a manner other than
               specified in paragraphs (4), (5) and (6).

18 Pa.C. § 2709.

      Appellant admitted to fighting with Victim because he was angry. He

admitted to striking Victim at least one time.       Whether or not Victim or

Victim’s girlfriend tried to rob his car earlier in the day is of no consequence.

Further, the court, not the jury, found Appellant guilty of the aforementioned

crimes. Although the court declined to consider the evidence of the possible

theft, it was aware of the background of the fight, considering it ruled on the

motion in limine and presided over the jury trial earlier that day. Thus, we

see no abuse of discretion in the court’s decision to exclude evidence of the

prior theft.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2015




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