J-A27018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                   OF PENNSYLVANIA
                         Appellee

                    v.

RAHSEUL MAVEN

                         Appellant                 No. 2931 EDA 2016


       Appeal from the Judgment of Sentence entered April 22, 2016
           In the Court of Common Pleas of Philadelphia County
             Criminal Division at No: CP-51-CR-0009780-2013


BEFORE: BOWES, STABILE, and McLAUGHLIN, JJ.

DISSENTING MEMORANDUM BY STABILE, J.:                FILED JUNE 25, 2019

     The learned Majority concludes that the trial court did not abuse its

discretion in permitting the Commonwealth to introduce, for purposes of

proving Appellant’s identity and his intent and knowledge to commit

possession with intent to deliver (“PWID”) crack cocaine, evidence of prison

calls Appellant made more than two years after he was arrested and charged

with PWID. I respectfully disagree with the Majority’s conclusion. My review

of the record, as set forth below, reveals that the Commonwealth never sought

to introduce the prison recordings under Pa.R.E. 404(b) for purposes of

establishing Appellant’s identity.   Rather, the Commonwealth rested its

introduction of the prison recordings solely on the intent and knowledge

exception to Rule 404(b)(1). However, unlike the Majority and consistent with

Commonwealth v. Ross, 57 A.3d 85 (Pa. Super. 2012) (en banc), appeal
J-A27018-18



denied, 72 A.3d 603 (Pa. 2013) and Commonwealth v. Boczkowski, 846

A.2d 75 (Pa. 2004), I cannot conclude that the Commonwealth satisfied its

burden under Rule 404(b) as Appellant never contested or challenged any

elements of the underlying crime, i.e., PWID. Accordingly, I would vacate and

remand this matter to the trial court for a new trial.

      I confine my analysis to the issue of the admissibility of the 2015 prison

recordings under Rule 404(b) as I find it to be dispositive. Given this discrete

issue, I also find it unnecessary to recount the full background of this case.

      Briefly, Appellant was charged with, inter alia, PWID following controlled

purchases of crack cocaine by a confidential informant (“CI”). On April 13,

2016, prior to the start of Appellant’s jury trial, Appellant’s trial counsel orally

raised a motion in limine to preclude the Commonwealth from introducing and

admitting into evidence recordings of two phone calls Appellant made in 2015

after his arrest while incarcerated.     Trial counsel explained that Appellant

made the prison calls on November 25 and 26, 2015

      when he was taken back into custody in th[is] case. The
      allegations in the case arise from July ninth, and tenth, eleventh
      and twelfth of 2013. The statements in the prison phone calls . . .
      are get all the drugs out of the house on one day and on the
      second day it is there’s cocaine under the bed, get that out of the
      house[.]

       ....

            [T]hat information coming two years and several months,
      those statements coming two years and several months later are
      basically another bad act. They are not discussing the case at
      hand and whether [Appellant] . . . was guilty or not guilty, did or
      did not do acts that constitute the crimes charged. It’s propensity
      evidence. It is only relevant to show or would only show that

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       [Appellant] is the kind of person that has drugs around and
       therefore two years plus prior you can convict [Appellant] for
       selling drugs because two years later [Appellant] says make sure
       that there’s no drugs in the house, make sure there’s no cocaine
       under the bed. So it’s not relevant. It is in fact prejudicial.

N.T. Hearing, 4/13/16, at 7-8. In response, the Commonwealth argued:

       [O]ne of the elements that [the trial court] will be instructing the
       jury on is knowledge and intent to possess the item and, in
       fact, knowledge that it is a controlled substance. This evidence
       would be used to show that he does have knowledge and he does
       exercise control over what he in the prison tapes describes as not
       only drugs but also specifically is cocaine, the narcotic in this case.
       So it is relevant to that case to show that his knowledge and his
       intent to possess controlled substances is in his own words, that
       he has that knowledge, that he has that intent. So therefore, it is
       relevant to the case. It is relevant to this crime. It is relevant to
       the specific charge.

Id. at 9 (emphasis added). Following a hearing, the trial court denied the

motion without specifying the reason for the denial.1

       At trial, the Commonwealth presented the testimony of three

Philadelphia Police Officers. The officers were Officer Jason Yerges, who, as a

member of the narcotics field unit, worked with the CI and observed the

controlled purchases of crack cocaine on July 9 and 10, 2013 and identified

Appellant as the seller of the crack cocaine at the Property; Officer Carlos

Buitrago, who, as a member of the narcotics field unit, executed a search

warrant at the Property on July 11, 2013 and recovered a handwritten letter

addressed to Appellant albeit bearing a different street address from that of
____________________________________________


1 I observe that Commonwealth failed to file a Pa.R.E. 404(b)(3) notice
informing Appellant of its intention to introduce evidence of subsequent bad
acts at trial regarding the 2015 prison recordings.


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the Property; and Officer Michael Guinter, who arrested Appellant on July 12,

2013 one and one-half blocks away from the Property.              In addition, the

Commonwealth introduced via stipulation the recordings of the November 25

and 26, 2015 phone calls that Appellant made while in prison.           N.T. Trial,

4/14/16, at 144-45.        The Commonwealth thereafter played the complete

recordings of the prison calls for the jury; however, it failed to ensure their

transcription for the record.       Upon conclusion, the trial court allowed their

admission into evidence.2 Id. at 146.

       Appellant’s principal defense at trial was that he was not the individual

who sold crack cocaine to the CI on July 9 and 10, 2013.3 N.T. Trial, 4/14/16,

at 148; N.T. Trial, 4/15/16, at 8-9, 12-13, 22-25. During closing, Appellant’s

trial counsel argued in part:

       And the District Attorney is gonna play a snippet from a phone call
       from the jail – there were two that we heard yesterday – where
       my client hoped to get out on house arrest at Thanksgiving last
       year. Thanksgiving is that holiday where you spend time with
       your family and you know your family. They’re all types, right?
       When you’re surrounded by drugs, it really comes as no surprise


____________________________________________


2 The trial transcripts reveal that Appellant’s counsel failed to request a limiting
instruction, and the trial court failed to issue one on its own initiative, with
respect to the introduction and admission of subsequent bad acts evidence.
See Pa.R.E. 105 (“If the court admits evidence that is admissible against a
party or for a purpose--but not against another party or for another purpose-
-the court, on timely request, must restrict the evidence to its proper scope
and instruct the jury accordingly. The court may also do so on its own
initiative.”).
3My record review indicates that Appellant did not raise a misidentification
defense at the hearing on the in limine motion at issue.

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      that you talk about getting rid of drugs so you don’t get into any
      more trouble.

            So two years after the arrest in this case from jail he talks
      about drugs, two times for a few seconds, pointedly in the second
      conversation. There’s coke under the bed, there’s bags in the
      back yard. Don’t let my chance of house arrest get screwed up
      by those drugs.

             Does the mention of that prove that on July ninth and tenth
      [Appellant] sold drugs to a [CI] two years earlier? Because those
      are the allegations in this case and that’s what you’re here to
      decide. Or did those snippets of conversation create prejudice,
      suspicion, inflame passion? Because those are the things you do
      not rely on when you are rendering a verdict in a criminal case.
      It’s just casting dirt on [Appellant] to make him look bad so that
      perhaps you won’t be convinced by the evidence or the lack of
      evidence in this case and you’ll convict him because he seems like
      a bad guy.

              The judge will define the crime of [PWID] and she’ll define
      the concept of circumstantial evidence for you. She’ll define what
      makes for possession under the law. Nowhere in any of those
      definitions will you hear any idea that covers a statement made
      two years later under different circumstances that makes for
      proof. It would be proof if he had said they’re looking for crack,
      not cocaine, crack. There’s crack in blue packets, get rid of that.
      No. That’s not what’s said. In three years’ time they’ve got two
      little snippets that talk about drugs, and they’re going to ask you
      to disregard every other failure of the evidence in this case
      because of those two little snippets. Never mind the rest of the
      almost three years’ time in which there is no other mention of
      drugs or bags or beds or anything.

N.T. Trial, 4/15/16, at 29-31.   The Commonwealth wrapped up its closing

argument by playing a snippet of the prison phone call for the jury.

      [Commonwealth:] . . . . Just in case you forgot what it said, let
      me play it again so you can hear him say what he was worried
      about them finding.

            [Audio recoding played.]
      [Commonwealth:] “I put the coke under the bed. Make sure it’s
      not there.” That’s not being in and around people that have it.

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       “The yellow bags, those might be Shaku’s. I put the coke under
       the bed. Make sure it’s not there.” [Appellant] sold crack cocaine
       July ninth [and] July tenth, and possessed crack cocaine on July
       ninth, tenth and eleventh with the intent to sell. I’m going to ask
       you to find [Appellant] guilty of those acts. Thank you.

Id. at 47-48. During deliberation, the jury asked to listen to the two recorded

phone calls again or review the transcript of those calls. Id. at 78. The trial

court noted that “transcripts were not introduced,” and as a result, allowed

the jury to hear the recordings again. Id. at 78-79. Thirteen minutes after

hearing the recordings, the jury reached a verdict, finding Appellant guilty of

PWID. Id. at 79-80.

       On April 22, 2016, prior to the start of sentencing, Appellant’s trial

counsel orally moved for extraordinary relief under Pa.R.Crim.P. 704(B),

asserting    that   Appellant     was    entitled   to   a   new   trial   because   the

Commonwealth’s playing of the November 2015 taped prison conversations

unfairly prejudiced Appellant. Specifically, trial counsel argued that the jury

rendered its verdict within minutes “of the jury asking the sole question in the

case, which was to listen to those two phone calls. So I think that it’s been

demonstrated that they clearly could not separate out whether anything that

happened in 2015 was actually probative of anything that was happening in

2013.” N.T. Hearing, 4/22/15, at 5-8. In response, the trial court remarked:

             If memory serves me correctly, the proffer of that
       information was to identify and supplement the information as to
       intent and identification[4] of [Appellant] as the proper person
____________________________________________


4 Although not asserted by the Commonwealth, this was the first instance the
identification exception to Rule 404(b)(1) was mentioned. The trial court, sua
sponte, and without offering any analysis references the identity exception.

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      conducting the sales and knowledge that the sales were of narcotic
      substances. So it goes to intent, knowledge, as well as lack of
      mistake and ignorance, which are all components of the rules of
      evidence. And I believe, if I didn’t say so on the record, I believe
      I deemed that the probative value of that information, given the
      context from which it was stated, outweighed any prejudicial value
      that was posed because it clearly demonstrated [Appellant’s]
      knowledge, intent and lack of mistake, which the defense was, to
      a degree, it wasn’t me and somebody else was dealing. So in that
      context, that’s why I ruled in the fashion that I did.

Id. at 8-9. The trial court denied the oral motion for extraordinary relief. Id.

at 10. Subsequently, the trial court sentenced Appellant to three to six years’

imprisonment, followed by ten years’ probation.

      On appeal, Appellant argues, among other things, that the trial court

abused its discretion in permitting the Commonwealth to introduce evidence

of subsequent bad acts to prove Appellant’s intent or knowledge to commit

PWID. Appellant’s Brief at 24. In support, Appellant points out that he did

not dispute any elements of PWID and that his sole defense theory at trial was

that he was not the individual who committed PWID in this case.

Consequently, he claims that the admission of the 2015 recordings was

improper. Further, Appellant asserts that the recordings of the 2015 prison

calls discussing cocaine made over two years after his arrest for PWID, bore

little to no similarity to the underlying crime of PWID.     Finally, Appellant

asserts that the trial court’s decision to permit the Commonwealth to introduce

subsequent bad acts evidence unfairly prejudiced him. Id. at 29.

      In the context of Rule 404(b) evidence, “[t]he burden is on the party

seeking admission to demonstrate the applicability of the exception to the



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general rule; in this case, that burden fell on the Commonwealth. There is no

presumption of admissibility of other-acts evidence merely because it is

somewhat relevant for a non-propensity purpose.” Commonwealth v. Lynn,

192 A.3d 165, 171 (Pa. Super. 2018) (citations 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    a    material    fact.

Commonwealth v. Spiewak, 617 A.2d 696, 699 (Pa. 1992). Once evidence

is found to be relevant and probative, it is inadmissible only if its probative

value is substantially outweighed by the danger of unfair prejudice to the

defendant.    Commonwealth v. Lilliock, 740 A.2d 237, 244 (Pa. Super.

1999) (citing Commonwealth v. Foy, 612 A.2d 1349 (Pa. 1992), appeal

denied, 795 A.2d 972 (Pa. 2000)).

      Rule 404(b), relating to character evidence, crimes and other acts,

provides in relevant part:

      (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.
      (3) Notice in a Criminal Case. In a criminal case the prosecutor
      must provide reasonable notice in advance of trial, or during trial
      if the court excuses pretrial notice on good cause shown, of the

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       general nature of any such evidence the prosecutor intends to
       introduce at trial.

Pa.R.E. 404(b)(1), (2), and (3) (emphasis added). As our Supreme Court has

explained in Commonwealth v. Hicks, 156 A.3d 1114 (Pa. 2017):

       [E]vidence of [] bad acts, while generally not admissible to prove
       bad character or criminal propensity, is admissible when proffered
       for some other relevant purpose so long as the probative value
       outweighs the prejudicial effect. Such evidence may be admitted
       to show motive, [intent,] identity, lack of accident or common plan
       or scheme.[5] In order for other crimes evidence to be admissible,
       its probative value must outweigh its potential for unfair prejudice
       against the defendant, [Rule 404(b)(2))], and a comparison of the
       crimes proffered must show a logical connection between them
       and the [the bad acts or the] crime currently charged.

       This Court has long recognized an exception to the general
       inadmissibility of other crimes evidence where there is a striking
       similarity—or logical connection—between the proffered [] bad
       acts and the underlying offense. . . . As early as 1872, . . . [this
       Court has] described the importance of such a connection as
       follows:

                    It is a general rule that a distinct crime,
              unconnected with that laid in the indictment, cannot
              be given in evidence against a prisoner. It is not
              proper to raise a presumption of guilt, on the ground,
              that having committed one crime, the depravity it
              exhibits makes it likely he would commit another. . . .
              To make one criminal act evidence of another, a
              connection between them must have existed in the
              mind of the actor, linking them together for some
              purpose he intended to accomplish; or it must be
____________________________________________


5 The official Comment to Rule 404 explains that this list of exceptions is non-
exhaustive. Pa.R.E. 404, cmt. As a result, courts are not limited to the nine
exceptions enumerated in Rule 404(b)(2) when exercising their discretion to
allow the admission of other bad acts evidence, as long as the evidence is
introduced for a purpose other than to prove character or a propensity to act
in accordance with traits of character. Commonwealth v. Johnson, 160
A.3d 127, 144 (Pa. 2017); Commonwealth v. Dillon, 925 A.2d 131, 137
(Pa. 2007).

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            necessary to identify the person of the actor, by a
            connection which shows that he who committed the
            one must have done the other.

        . . . . Sufficient commonality of factors between the other
      incidents and the underlying crime dispels the notion that they are
      merely coincidental and permits the contrary conclusion that they
      are so logically connected they share a perpetrator.

             In further explaining the logical connection standard, this
      Court has noted much more is demanded than the mere repeated
      commission of crimes of the same class, such as repeated
      burglaries or thefts. The device used must be so unusual or
      distinctive as to be like a signature.

Hicks, 156 A.3d at 463-65 (citations and quotation marks omitted).

Moreover, it is well-settled that “Rule 404(b) does not distinguish between

prior and subsequent acts.”    Commonwealth v. Wattley, 880 A.2d 682

(Pa. Super. 2005) (citation omitted).     “Although evidence of a subsequent

offense is usually less probative of intent than evidence of a prior offense,

evidence of a subsequent offense can still show the defendant’s intent at the

time of the prior offense.” Id. (citation omitted); accord Commonwealth

v. Martinez, 447 A.2d 272, 274 (Pa. Super. 1982) (explaining that evidence

of subsequent offenses is less strongly probative of intent than prior offenses

because it does not establish that a defendant possessed the requisite intent

prior to the commission of the crime being tried). “Evidence of a later crime

is so tenuously related to intent at the time of an earlier crime that it is

admissible only if proof of both crimes is necessary to prove the

Commonwealth’s     case.”     Martinez,      447   A.2d   at   274-75   (evidence

inadmissible to prove the appellant’s intent where the Commonwealth had



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sufficient evidence to establish the first sale of heroin without introducing

evidence of the subsequent sale).

      This Court warned in Ross:

      The purpose of Rule 404(b)(1) is to prohibit the admission of
      evidence of prior bad acts to prove the character of a person in
      order to show action in conformity therewith.            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 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. . . . This Court has warned that prior
      bad acts may not be admitted for the purpose of inviting the jury
      to conclude that the defendant is a person “of unsavory character”
      and thus inclined to have committed the crimes with which he/she
      is charged.

Ross, 57 A.3d at 105-06 (citations and quotation marks omitted) (emphasis

added). Mindful of this warning, and upon careful review of the record, I

conclude that the trial court here abused its discretion in allowing the

Commonwealth to introduce the 2015 prison calls to establish the appellant’s

identity in connection with the 2013 crimes and/or to establish knowledge or

intent to possess in connection with those crimes.

      To make use of the identity exception under Rule 404(b)(1), the

Commonwealth would have had to establish that the 2015 phone calls

demonstrate that Appellant, to the exclusion of others, was the individual who

committed the underlying crime of PWID. In explaining the identity exception




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to Rule 404(b)(1), the Ross Court pointed out that evidence of crimes may

be admissible:
     [t]o prove other like crimes by the accused so nearly identical in
     method as to earmark them as the handiwork of the accused.
     Here, much more is demanded than the mere repeated
     commission of crimes of the same class, such as repeated
     burglaries or thefts. The device used must be so unusual and
     distinctive as to be like a signature. . . . Required, therefore, is
     such a high correlation in the details of the crimes that proof that
     a person committed one of them makes it very unlikely that
     anyone else committed the others.

Ross, 57 A.3d at 102 (citations, brackets and original emphasis omitted);

accord Commonwealth v. Nypaver, 69 A.3d 708, 717 (Pa. Super. 2013)

(“The similarities must describe a crime so distinctive in method and so similar

to the charged crime that proof that a person committed one tends to prove

he committed the other.”). In Ross, we agreed with the appellant that the

trial court abused its discretion in allowing the Commonwealth to introduce

other bad acts evidence, inter alia, for purposes of proving identity. We noted

that the testimony of three proposed witnesses established only a common

thread of physical and/or sexual assault with a foreign object, and this was

insufficient for a crime sufficiently unique to signify an identifying signature.

Ross, 57 A.3d at 102.

      Here, the Majority concludes in a single paragraph that the introduction

of the 2015 phone calls is necessary and relevant to establish Appellant’s

identity as the perpetrator of PWID. I do not agree. There is no indication in

the record that the drugs (crack cocaine) at issue in the underlying 2013 case

were the same as the drugs (cocaine) discussed in the phone calls two years

later. Additionally, it is unclear whether the property or location discussed in

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the 2015 phone calls was the same property from which drugs were recovered

in 2013. The only similarity between the 2013 crime and the 2015 phone call

is narcotics. That, however, is insufficient to satisfy the identity exception. In

other words, the mere involvement of drugs here is not so unusual or

distinctive as to be Appellant’s signature, especially when the record is devoid

of any high correlation in details between the 2013 crime and 2015 prison

recordings. Stripped to its essence, and given the circumstances of this case,

the Majority’s decision sanctions the introduction of propensity evidence under

the guise of the identity exception. I do not dispute that in many cases identity

frequently is at issue in criminal proceedings.        Following the Majority’s

approach however, would eviscerate the rules against propensity evidence by

introducing under the identity exception other bad acts and crimes without

any connection to the crimes being charged.

      I now turn to the intent and knowledge exceptions to Rule 404(b)(1).

Instantly, the introduction of the subsequent bad act evidence to prove intent

or knowledge was improper because Appellant never contested or challenged

any elements of PWID, i.e., the underlying crime. Generally, when elements

of a crime, such as intent, are undisputed, the Commonwealth’s need for other

bad acts evidence to establish such elements is nonexistent.                 See

Commonwealth v. Aguado, 760 A.2d 1181, 1187 (Pa. Super. 2000) (en

banc) (noting that parties disputed the element of possession rather than

intent and thus the Commonwealth’s evidence of the appellant’s prior drug

transaction, which occurred nine months earlier, was not necessary to rebut

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his defense).   Thus, unless introduced to counter a defense or a likely

inference of a defense, the Commonwealth is not permitted to use exceptions

to Rule 404(b)(1). Ross, 57 A.3d at 101; Boczkowski, 846 A.2d at 89; see

Hicks, 156 A.3d at 470 (noting that Rule 404(b) evidence tended to establish

the elements of first-degree murder instead of accidental death); see also

Commonwealth v. Tyson, 119 A.3d 353, 362-63 (Pa. Super. 2015) (en

banc) (noting, among other things, that the Rule 404(b) evidence was

admissible to belie the defendant’s claim that he mistakenly believed the

victim was awake or gave her consent to the sexual intercourse), appeal

denied, 128 A.3d 220 (Pa. 2015); Commonwealth v. Kinard, 95 A.3d 279,

285 (Pa. Super. 2014) (noting, inter alia, that the other acts evidence was

admissible to dispel the defense of mistake); Nypaver, 69 A.3d at 717 (noting

that Rule 404(b) evidence was inadmissible because the perpetrator’s identity

was not at issue at trial); Commonwealth v. Hude, 390 A.2d 183, 185 (Pa.

Super. 1983) (noting that the Commonwealth’s need to offer witness

testimony regarding other crimes to negate a defense of mistake, accident or

lack of intent was nonexistent, because “the appellant freely admitted

smoking marijuana on occasion and did not base his defense in any way on

mistake or entrapment”).

      In Ross, the police charged the appellant with first-degree murder and

related crimes in connection with the sexual assault and murder of Tina Miller.

Ross, 57 A.3d at 87. Miller’s body was discovered in a prone position, partially

immersed in a lake, and covered only in a shirt, a dark sweater, and knee-

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high boots.    Id.     Miller’s hands were duct-taped behind her back, and

additional duct tape was around her head, mouth and arms. Id. Dr. Saralee

Funke, the forensic pathologist who performed Miller’s post-mortem, opined

that Miller died of a combination of drowning and strangulation. Id. at 88.

Injuries to Miller’s body included various abrasions to the legs, buttocks, arms

and face, an abrasion on the right cheek consistent with a blow to the face,

and pattern marks on the left breast consistent with a bite. Critically, Miller’s

anus and vagina were “massively traumatized.” Id. Specifically, Dr. Funke

described numerous lacerations to this area of the body, including one “so

deep that it went through the sphincter muscle[, t]ore the sphincter apart and

ended up in the vagina.” Id. “Dr. Funke opined that these particular injuries

likely were inflicted through the use of ‘a significant amount of force’ with a

foreign object.” Id.

      The trial court allowed the Commonwealth to introduce the testimony of

three of the appellant’s former girlfriends to prove, inter alia, the appellant’s

intent to kill Miller. Id. at 99. Each woman testified to various acts of violence

that the appellant had committed against her, including sexual violence. Id.

at 99-100. Two of the women testified that the appellant had used foreign

objects on her during sex. Id.

      On appeal, the appellant argued, among other things, that the trial court

abused its discretion in allowing the Commonwealth to introduce other bad

acts evidence to prove his intent to kill Miller. This Court, sitting en banc,

agreed, concluding, inter alia, that intent was not an issue in the case because

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intent to kill Miller could be inferred under the circumstances. Id. at 101. We

reasoned that “given the circumstances surrounding Miller’s murder, including

the mutilation of the body, the use of duct tape, and the bite mark on her

breast, there can be no question that this was an intentional killing.” Id. at

101. We further noted that the appellant’s “only defense was that he was not

the perpetrator, and he did not raise any defense of accident, mistake or lack

of required intent.”   Id.   As a result, we concluded that “prior bad acts

testimony should not have been permitted with regard to intent.”           Id.

(emphasis added).

      By contrast, in Boczkowski, our Supreme Court noted that the

evidence adduced at trial raised an inference of mistake or accident that

entitled the Commonwealth to introduce prior bad acts evidence to dispel that

inference. Boczkowski, 846 A.2d at 89. The appellant was charged with,

and subsequently convicted of, murdering his wife, Mary Ann. On the night

of the murder, the appellant called paramedics, who found Mary Ann

intoxicated and unresponsive in a hot tub at the couple’s home.            The

paramedics determined that Mary Ann was incapable of resuscitation. The

Commonwealth sought to introduce evidence of the appellant’s conviction in

North Carolina for the murder of his former wife, Elaine.       Similar to the

circumstances surrounding Mary Ann’s death, Elaine died in a bathtub at the

couple’s home while intoxicated. As noted, our Supreme Court held that the

prior bad acts evidence of the circumstances surrounding Elaine’s murder and

the appellant’s subsequent conviction of that murder were admitted properly

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to dispel the inference that Mary Ann died as a result of an accident. Id. at

88-89.

      Instantly, Appellant did not hold himself out as an upstanding, law-

abiding citizen.   Rather, as in Ross, Appellant raised a mistaken identity

defense at trial, claiming that he was not the person who sold crack cocaine

to the CI on July 9 and 10, 2013.     Indeed, Appellant did not dispute any

elements of the charged crime, i.e., PWID. Appellant did not aver that he sold

crack cocaine to the CI unintentionally, or without knowledge of the content

of what he sold. Appellant also did not dispute the element of possession

necessary for a PWID conviction. Appellant likely recognized that challenging

the elements of PWID would have been futile considering that an undercover

police officer observed the controlled purchases of crack cocaine by the CI.

Thus, given the circumstances surrounding the controlled purchases and the

first-hand observations of the same by Officer Yerges, intent to commit PWID

can be inferred.    Additionally, unlike Boczkowski, the evidence, or lack

thereof, presented by the Commonwealth either at the hearing on Appellant’s

motion in limine or at trial did not raise an inference that the sale of crack

cocaine to the CI on July 9 and 10, 2013 was a mistake, accident or otherwise

unintentional. As a result, I conclude that the introduction and admission into

evidence of the 2015 recordings to prove Appellant’s intent or knowledge to

possess crack cocaine was an abuse of discretion. The trial court abused its

discretion in allowing the Commonwealth to introduce evidence of Appellant’s

subsequent prison calls discussing coke for purposes of proving Appellant’s

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intent and knowledge to commit PWID, for which he was arrested and charged

more than two years earlier. This is particularly so where the Commonwealth

fails to establish any nexus between the drugs discussed in the 2015 phone

calls and the drugs underlying the 2013 PWID charges.

      I, therefore, respectfully dissent and would vacate and remand this case

to the trial court for a new trial.




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