                            [J-81-2016][M.O. – Dougherty, J.]
                      IN THE SUPREME COURT OF PENNSYLVANIA
                                  EASTERN DISTRICT


COMMONWEALTH OF PENNSYLVANIA,                 :   No. 718 CAP
                                              :
                    Appellee                  :   Appeal from the Judgment of Sentence
                                              :   entered on 1/6/15 in the Court of
               v.                             :   Common Pleas, Monroe County,
                                              :   Criminal Division at No. CP-45-CR-
                                              :   0000391-2008
CHARLES RAY HICKS,                            :
                                              :
                    Appellant                 :   ARGUED: September 13, 2016




                                CONCURRING OPINION


CHIEF JUSTICE SAYLOR                                    DECIDED: March 28, 2017


      I join Parts I, II and IV of the majority opinion and concur in the result relative to

the balance.

      As to Part III, I agree with Justice Donohue that various majority opinions of this

Court, like the decisions of a number of other courts, have incorrectly blended various

distinct grounds for relevance associated with proffered, uncharged misconduct. See

Dissenting Opinion, slip op. at 8 (Donohue, J.) (describing a “decades-long

misunderstanding about what type of connection is truly required for the purpose of

proving a common scheme”).1 As Justice Donohue also ably explains, either as a

1
  Cf. State v. Griffin, 887 N.W.2d 257, 268 (Minn. 2016) (Stras, J., concurring) (positing
that majority decisions of the Minnesota Supreme Court similarly have conflated the
modus operandi and common-plan theories of relevance pertaining to other bad acts).
See generally DAVID P. LEONARD, NEW W IGMORE EVID. OF OTHER MISCONDUCT & SIMILAR
(continued…)
consequence or in conjunction, majority opinions of this Court also have substantially

diluted the putatively stringent standard associated with at least one of these, namely,

proof of identity via a modus operandi theory. See Dissenting Opinion, slip op. at 15.2

My dissent in Commonwealth v. Arrington, 624 Pa. 506, 86 A.3d 831 (2014), reflects my

belief that the threshold for the use of uncharged misconduct as evidence of identity

should remain high, in accordance with the signature-crimes analysis related by Justice

Donohue. See Dissenting Opinion, slip op. at 6-12 (Donohue, J.); accord Arrington, 624

Pa. at 555, 86 A.3d at 860-61 (Saylor, J., dissenting).3

(…continued)
EVENTS §13.5 (2017) [hereinafter, LEONARD, NEW W IGMORE] (explaining the differences
between the distinct bases for logical relevance underlying the separate modus
operandi and common scheme or plan theories); id. §9.2 (observing that courts often
mix the “common plan or scheme” ground with other admissibility routes); Edward J.
Imwinkelried, The Plan Theory for Admitting Evidence of the Defendant’s Uncharged
Crimes: A Microcosm of the Flaws in the Uncharged Misconduct Doctrine, 50 MO. L.
REV. 1, 4 (1985) (indicating that courts have often misapplied the common plan theory
of relevance and, more broadly, the uncharged misconduct doctrine in general); David
P. Leonard, The Use of Uncharged Misconduct Evidence to Prove Knowledge, 81 NEB.
L. REV. 115, 139 (2002) (opining that “[m]any courts . . . have shown a particularly
strong tendency toward poorly reasoned decisions in these cases”).

2
  Cf. Griffin, 887 N.W.2d at 269 (Stras, J., concurring) (offering a similar observation
about the Minnesota experience with the analogue to Pennsylvania Rule of Evidence
404(b)). See generally LEONARD, NEW W IGMORE §13.6 (“By slow accretion, . . .
misunderstandings can essentially dissolve the already blurry line between the improper
character inference and legitimate modus operandi reasoning. Proper use of modus
operandi evidence depends on the fact-finder’s willingness to accept the notion that the
actor is identified only by conduct that is truly distinctive.”); Paul S. Milich, The
Degrading Character Rule in American Criminal Trials, 47 GA. L. REV. 775, 778 (2013)
(expressing the view that “[t]he history of the ‘other uses’ exception, currently known as
Rule 404(b), is one of inexorable expansion, ultimately swallowing all but the remnants
of the prohibition against character evidence.”).

3
  See generally LEONARD, NEW W IGMORE §13.5 (“Because the legitimacy of [the modus
operandi] theory’s application to any given case depends very highly on the similarity of
the charged and uncharged conduct, much greater similarity is required if the character
(continued…)
                          [J-81-2016][M.O. – Dougherty, J.] - 2
      I do not view the present matter, however, as one truly implicating an identity-

based theory of relevance. In this regard, Appellant’s attorney conceded to the jury

from the outset of the trial that Appellant was in the victim’s company at or around the

time that she died and that, in the aftermath, he dismembered her body. See N.T., Nov.

5, 2014, at 61 (reflecting the concession of counsel that Appellant was guilty of abuse of

corpse, including the statements that: “I’m going to tell you that Mr. Hicks put the

[victim’s severed] hands in the wall” and “threw the body parts out of his car”); id. at 68

(“I’m letting you know that he dismembered her[.]”). The sole defense was a claim to

the possibility of what the defense dubbed as “drug dumping,” i.e., that Appellant may

have panicked when the victim purportedly died of an accidental drug overdose, and

that he therefore decided to covertly dispose of her body. Id. Consequently, a main

focus at trial was whether various injuries to the victim were pre-mortem or post-mortem

(i.e., intentionally inflicted while Deanna Null was alive or incurred incident to the

dismemberment and disposal of her body).4




(…continued)
ban is to be maintained.”); Mark Cammack, Using the Doctrine of Chances to Prove
Actus Reus in Child Abuse and Acquaintance Rape: People v. Ewoldt Reconsidered,
29 U.C. DAVIS. L. REV. 355, 384 (1996) (“Similarities between crimes that are common
to many criminals do not support admission under the modus operandi rule because the
probability of recurrence is high.”); id. at 366 (“The greatest degree of similarity is
required of evidence offered to prove identity.”).

4
  Parenthetically, from my review of the record, Appellant’s position that the extensive
bruising suffered by the victim occurred after her death seems tenuous. Indeed, the
main expert testimony that he offered in support of this point was flatly contradicted by
another defense witness, forensic pathologist Isidor Mihalakis, M.D., who strongly
agreed with the Commonwealth that the victim died of “[m]ultiple traumatic injuries that
resulted in a death.” N.T., Nov. 12, 2014, at 76; see also id. at 83 (“When you have so
much bruising, how can you attribute [the death] to drugs?”).


                          [J-81-2016][M.O. – Dougherty, J.] - 3
      Given this critical aspect of the case, the central relevance at trial of the evidence

of Appellant’s other assaults upon women went toward negating his defense that the

death was an accident. In other words, the evidence was employed by the prosecution

primarily to establish the actus reus of the murder by corroborating the autopsy report

and the testimony for the Commonwealth by a forensic pathologist that the victim’s

death resulted from “homicidal violence” rather than a mishap. See N.T., Nov. 6, 2014,

at 14-90 (testimony of Wayne K. Ross, M.D.).           This focus clearly enhanced the

Commonwealth’s claims of relevancy of and necessity for the evidence.5 Significantly,

moreover, the logical relevance of other-bad-acts evidence -- so employed to

demonstrate lack of accident -- does not depend on as great a degree of similarity, as




5
  Accord Huddleston v. United States, 485 U.S. 681, 685, 108 S. Ct. 1496, 1499 (1988)
(indicating that other bad acts evidence “may be critical to the establishment of the truth
as to a disputed issue, especially when that issue involves the actor’s state of mind and
the only means of ascertaining that mental state is by drawing inferences from
conduct”); United States v. York, 933 F.2d 1343, 1350 (7th Cir. 1991) (“When the
defendant affirmatively denies having the requisite intent by proffering an innocent
explanation for his actions, the government is entitled to rebut that argument, ‘Evidence
of another crime which tends to undermine defendant’s innocent explanation for his acts
will be admitted.’” (quoting JACK B. W EINSTEIN & MARGARET A. BERGER, W EINSTEIN’S
EVIDENCE §404[12] (1990)), overruled on other grounds Wilson v. Williams, 182 F.3d
562 (7th Cir. 1999); Wickizer v. State, 626 N.E.2d 795, 795 (Ind. 1993) (“The intent
exception in Evid. R. 404(b) will be available when a defendant goes beyond merely
denying the charged culpability and affirmatively presents a claim of particular contrary
intent.”); Wynn v. State, 718 A.2d 588, 609 (Md. 1998) (Raker, J., dissenting) (collecting
cases for the proposition that “[o]ther courts have recognized that once a defendant
puts forth a defense premised on an innocent or non-culpable state of mind, evidence of
other criminal acts which tends to logically refute the claim of an innocent state of mind
on a basis other than criminal propensity attains heightened probative value, and thus
becomes admissible.”).         See generally JOHN E.B. MYERS, MYERS ON EVID.
INTERPERSONAL VIOLENCE §8.06 (2016) (“Numerous cases approve [the admission of
other-misconduct evidence] to rebut a claim of accidental injury.” (footnote omitted))


                          [J-81-2016][M.O. – Dougherty, J.] - 4
between the charged and uncharged misconduct, as is the case under the modus

operandi theory.6

      Along these lines, most jurisdictions recognize the “doctrine of chances” -- also

known as the “doctrine of objective improbability” -- as a theory of logical relevance that

does not depend on an impermissible inference of bad character, and which is most

greatly suited to disproof of accident or mistake. See, e.g., People v. Spector, 128 Cal.

Rptr. 3d 31, 66–67 (Cal. Ct. App. 2011) (“There is broad consensus that similar acts

evidence may be introduced on a doctrine of chances rationale to prove the defendant

committed an actus reus when the defendant asserts that he did not cause the . . .

harm.” (quoting Cammack, Using the Doctrine of Chances to Prove Actus Reus in Child

Abuse and Acquaintance Rape, 29 U.C. DAVIS L. REV. at 386)). See generally LEONARD,

NEW W IGMORE §6.3.1 (“The doctrine of chances theory in this context has been

embraced by the large number of courts and commentators.” (footnotes omitted)); id.



6
   See, e.g., State v. Johns, 725 P.2d 312, 322 (Ore. 1986) (contrasting use of
uncharged misconduct to prove identity from admission to prove intent, and explaining
that the “rigidity” associated with the necessity to establish striking similarity under
modus operandi theory “is not required when admitting prior acts to prove intent or lack
of mistake”); LEONARD, NEW W IGMORE §7.5.2 (indicating, in the course of a discussion of
the “intent” theory of logical relevance -- of which the treatise author considers lack of
accident to be a subset -- that “[a]ll agree that charged and uncharged acts need not be
as similar to each other as required for the ‘modus operandi’ theory’”); Cammack, Using
the Doctrine of Chances to Prove Actus Reus in Child Abuse and Acquaintance Rape,
29 U.C. DAVIS. L. REV. at 406 (“[T]he alleged conduct need not be unusual so long as
the probability of invention is very low, since the probative value of the evidence derives
from the improbability of fabricated accusations from diverse sources.”); Edward J.
Imwinkelried, The Use of Evidence of an Accused’s Uncharged Misconduct to Prove
Mens Rea: The Doctrines Which Threaten to Engulf the Character Evidence Prohibition,
51 OHIO ST. L.J. 575, 589-90 (1990) (indicting that incidents must be “roughly similar” or
“fall into the same general category”); id. at 596 (“The degree of similarity between the
charged and uncharged incidents need not be as great as the degree required when the
prosecutor relies on the modus operandi theory to prove identity.”).


                          [J-81-2016][M.O. – Dougherty, J.] - 5
§7.3.2.7 Application of this principle depends upon “the instinctive logical process that

reasonably determines that unusual and abnormal events are unlikely to recur by

chance.”   People v. Everett, 250 P.3d 649, 656 (Colo. App. 2010) (citing 2 JOHN

WIGMORE, EVIDENCE    IN   TRIALS   AT   COMMON LAW §302 (Chadbourn rev. 1979)).     See

generally Edward J. Imwinkelried, An Evidentiary Paradox: Defending the Character

Evidence Prohibition by Upholding a Non-Character Theory of Logical Relevance, The

Doctrine of Chances, 40 U. RICH. L. REV. 419, 439 (2006) (explaining that the doctrine of

chances focuses on the objective improbability of coincidence).

      As explained by a leading commentator, per the doctrine of chances:

             To determine whether the asserted theory qualifies [as a
             non-character-based theory of logical relevance], the trial
             judge must trace the entire chain of inferences underlying
             the theory. The theory passes muster if the inferential path
             between the item of evidence and a fact of consequence in
             the case does not require any inferences as to the
             defendant’s personal, subjective character.

                            *               *          *

             [T]he proponent does not offer the evidence of the
             uncharged misconduct to establish an intermediate inference
             as to the defendant’s personal, subjective bad character.
             Rather, the proponent offers the evidence to establish the
             objective improbability of so many accidents befalling the

7
 Although the doctrine of chances can be used to prove mens rea, it also may apply to
establish actus reus, or, as in this case, that the victim died from physical violence as
opposed to an accidental drug overdose, as Appellant claimed. See, e.g., People v.
Rath, 44 P.3d 1033, 1042 (Colo. 2002) (“Other-crimes evidence demonstrating a
common design or modus operandi has been admitted in prosecutions for sexual
assault not only to prove who committed the crime but also to prove that the alleged sex
act actually occurred.”). See generally Imwinkelried, The Use of Evidence of an
Accused’s Uncharged Misconduct, 51 OHIO ST. L.J. at 586-93; Cammack, Using the
Doctrine of Chances to Prove Actus Reus in Child Abuse and Acquaintance Rape, 29
U.C. DAVIS. L. REV. at 384-86.


                           [J-81-2016][M.O. – Dougherty, J.] - 6
             defendant or the defendant becoming innocently enmeshed
             in suspicious circumstances so frequently.
Id. at 429, 437 (emphasis added; footnotes omitted); see also Cammack, Using the

Doctrine of Chances to Prove Actus Reus in Child Abuse and Acquaintance Rape, 29

U.C. DAVIS. L. REV. at 378 (explaining, “as in Wigmore’s famous example, if a hunter

charged with having shot his hunting companion claims that the shooting was

accidental, evidence of the defendant’s having fired at his companion on other

occasions becomes admissible to disprove the claim of accident”).8

      The rationale underlying the doctrine is further developed by another

commentator -- and distinguished from character-based reasoning -- as follows:

             The reasoning of the doctrine of chances theory avoids the
             forbidden character-based logic, and thus is permissible
             under current law. It is founded on a logical inference
             deriving not from the personal characteristics of the actor,
             but from the external circumstances themselves.             The
             inference is based on informal probability reasoning --
             reasoning that does not require formal statistical proof, but
             only the jury's subjective evaluation of likelihood based on
             intuition and common experience. And in many cases, the
             intuitive assessment is rather compelling. Could it really be
             true that a person has received so many stolen vehicles
             without realizing -- at any point -- that they were stolen? It is
8
  See also Imwinkelried, An Evidentiary Paradox, 40 U. RICH. L. REV. at 461 (“By
negatively discrediting the random chance hypothesis, the doctrine affirmatively
increased the probability assigned to the hypotheses. Moreover, since the only final
conclusion necessarily yielded by the doctrine is that one or some of the incidents are
not accidents, logically an assumption of the person’s unchanging character cannot be
embedded in the doctrine.”); Cammack, Using the Doctrine of Chances to Prove Actus
Reus in Child Abuse and Acquaintance Rape, 29 U.C. DAVIS. L. REV. at 388-89 (“The
fact that is being proven, the defendant's commission of the criminal act, is established
indirectly through a process of elimination. Once the possibility of accident is rendered
unlikely, the most plausible explanation for the harm's occurrence is that the defendant
caused it.” (footnote omitted)); id. at 380 (“The probative value of the similar act
evidence in disproving the claim of innocence rests on the improbability of non-recurrent
similar events recurring by chance.”).


                         [J-81-2016][M.O. – Dougherty, J.] - 7
             thus possible for one's mind to travel from the evidence to
             the conclusion without relying on forbidden character
             reasoning or on the assumption that prior experience would
             have given the defendant notice of the stolen nature of
             vehicles obtained from a particular source or under similar
             circumstances.
Leonard, Use of Uncharged Misconduct Evidence, 81 NEB. L. REV. at 161-62; see also

id. at 167 (approving doctrine-of-chances reasoning where it “does not involve a

judgment about the defendant’s moral character, and thus does not require an inference

that the defendant acted in accordance with the character trait so revealed”).9

      I realize that the general restriction on employing character-based reasoning to

establish guilt is recognized as a hallmark of the American system of justice. See, e.g.,

Cammack, Using the Doctrine of Chances to Prove Actus Reus in Child Abuse and

Acquaintance Rape, 29 U.C. DAVIS. L. REV. at 357 (couching the character evidence

rule as “a pillar of Anglo-American evidence law”); Benjamin Z. Rice, Comment, A Voice

from People v. Simpson: Reconsidering the Propensity Rule in Spousal Homicide

9
  See also Cammack, Using the Doctrine of Chances to Prove Actus Reus in Child
Abuse and Acquaintance Rape, 29 U.C. DAVIS. L. REV. at 407 n.213 (citing Edward J.
Imwinkelried, A Small Contribution to the Debate Over the Proposed Legislation
Abolishing the Character Evidence Prohibition in Sex Offense Prosecutions, 44
SYRACUSE L. REV. 1125, 1136-37 (1993), for the proposition that “similar accusations
evidence invites jurors to focus on objective improbability of repeated accusations rather
than the subjective character of the accused”); Leonard, Use of Uncharged Misconduct
Evidence, 81 NEB. L. REV. at 162 (“Doctrine of chances reasoning does not involve an
inference of knowledge on one occasion from proof of knowledge on one or more prior
occasions. Rather, each occasion lessens the likelihood of innocent knowledge in each
other occasion.”); Imwinkelried, An Evidentiary Paradox, 40 U. RICH. L. REV. at 439
(“The doctrine does not ask the jurors to utilize the defendant's propensity as the basis
for a prediction of conduct on the alleged occasion. Instead, the doctrine asks the jurors
to consider the objective improbability of a coincidence in assessing the plausibility of a
defendant's claim that a loss was the product of an accident or that he or she was
accidentally enmeshed in suspicious circumstances.”). See generally Johns, 725 P.2d
at 322-24 (offering an extensive development of the doctrine of chances, with reference
to the teachings of Professors Wigmore and Imwinkelried).


                          [J-81-2016][M.O. – Dougherty, J.] - 8
Cases, 29 LOY. L.A. L. REV. 939, 945 (1996) (indicating that the prohibition against

character evidence originated as a response to inquisitorial practices such as those of

the Star Chamber (citation omitted)). Nevertheless, there remains a material difference

between the use of evidence to prove “general evil disposition” and advancement to

demonstrate “the intention which composes a part of the crime,” including a lack of

accident or mistake. Johns, 725 P.2d at 322 n.2 (quoting United States v. Burr, 25 F.

Cas. 52, 54 (C.C.D. Va. 1807)).

      Hence, I find that the doctrine of chances represents a non-character-based path

of logical reasoning that sufficiently comports with the ideals underlying Rule of

Evidence 404, as well as its express terms.        See generally Cammack, Using the

Doctrine of Chances to Prove Actus Reus in Child Abuse and Acquaintance Rape, 29

U.C. DAVIS. L. REV. at 377 (characterizing the doctrine of chances as an “alternative

non-character theory of relevance” that best “captures the court[s’] intuition regarding

the significance of similarity when uncharged acts are used to prove actus reus”). That

the evidence might also tend to demonstrate bad character is not itself controlling, 10 but


10
   See Cammack, Using the Doctrine of Chances to Prove Actus Reus in Child Abuse
and Acquaintance Rape, 29 U.C. DAVIS. L. REV. at 357-58 (explaining that the rule
governing character evidence “does not proscribe the admission of evidence of a
person’s character per se,” but rather, “prohibits one use of the evidence,” in that the
evidence “may not be used to support an inference that because the actor has a
particular character trait -- dishonesty, for example -- she acted consistently with that
trait -- dishonesty -- on some given occasion”); id. at 340 (“The character evidence ban
does not preclude the use of such evidence as long as the evidence is being offered for
a non-propensity purpose.”); cf. United States v. Sampson, 980 F.2d 883, 886 (3d Cir.
1992) (noting that the basic rule governing the admissibility of character evidence is
inclusive in nature, rather than exclusive); 23 C.J.S. CRIMINAL PROCEDURE AND RIGHTS OF
ACCUSED §1125 (2016) (discussing the additional “latitude in admitting other crimes
evidence” where “[t]he list of purposes in an inclusionary rule of evidence are only
examples of exceptions to the general prohibition”).

(continued…)
                          [J-81-2016][M.O. – Dougherty, J.] - 9
rather, implicates the additional protective measure prescribed in Rule 404(b) and

otherwise. See Pa.R.E. 404(b)(2) (“In a criminal case this evidence is admissible only if

the probative value of the evidence outweighs its potential for unfair prejudice.”).

Notably, the defense may also secure limiting and cautionary instructions to guard

against impermissible character-based reasoning.         See, e.g., Commonwealth v.

Jemison, 626 Pa. 489, 503, 98 A.3d 1254, 1263 (2014) (“Any possibility of unfair

prejudice is greatly mitigated by the use of proper cautionary instructions to the jury,

directing them to consider the defendant’s prior offense [for a relevant, non-character-

based purpose], not as evidence of the defendant’s bad character or propensity to

commit crime.”).

      The decision in Spector, 128 Cal. Rptr. 3d 31, offers a salient example of the

application of the doctrine of chances in the context of a a murder prosecution following

the shooting death of a woman. There, the defendant claimed that the victim committed

suicide or shot herself accidentally.    To disprove these defense theories, per the

doctrine of chances, the appellate court sanctioned the admission of evidence that the

defendant had committed several previous armed assaults upon women, over a period

spanning 28 years, and within a fairly discrete set of circumstances.11 Id. at 65-68


(…continued)
In terms of the inclusive quality of Rule 404(b), I also note that the threshold for
relevance under Rule of Evidence 401 is a relatively low one. See Pa.R.E. 401
(“Evidence is relevant if . . . it has any tendency to make a fact more or less probable
than it would be without the evidence; and . . . the fact is of consequence in determining
the action.”). See generally LEONARD, NEW WIGMORE §7.3.2 (“[B]ecause of the minimal
definition of ‘relevant evidence’ that prevails in modern evidence law, the logic of the
doctrine of chances can be applied to a wide variety of situations.”).

11
   The particular circumstances involved evidence that “when fueled by alcohol and
faced with a lack or loss of control over a woman who was alone with him and in whom
he had a romantic or sexual interest, Spector underwent a sharp mood swing, exhibited
(continued…)
                         [J-81-2016][M.O. – Dougherty, J.] - 10
(“[T]he evidence tended to show, by operation of the doctrine of chances, the

unlikelihood that this time it was the woman, not Spector, who reached for a gun.”).

       In Johns, 725 P.2d 312, the Oregon Supreme Court approved the admission of

evidence of previous armed assaults in a murder prosecution in which the defendant

claimed that his wife’s shooting death was an accident. One of those incidents involved

a former wife and had occurred six years before the killing. See id. at 315; see also

LEONARD, NEW W IGMORE §7.5.3 (crediting the logic of the Johns court, given that the

defense had claimed accident, making the necessity for the evidence “more palpable”

and admission “considerably easier to justify”). Although the Oregon Supreme Court

acknowledged that reasonable minds could differ as to the admissibility of this evidence,

it “defer[red] to the veteran trial judge who was better able to decide the evidence’s

effect on the jury after hearing and observing the many witnesses throughout the

lengthy trial.” Johns, 725 P.2d at 326; accord Commonwealth v. Hoover, 630 Pa. 599,

610, 107 A.3d 723, 729 (2014) (stressing the deferential abuse-of-discretion standard

applied by appellate courts on review of trial-court evidentiary rulings, per which such

determinations cannot be disturbed “‘merely because an appellate court might have

reached a different conclusion, but [reversal] requires a result of manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as

to be clearly erroneous,’” or a demonstration that “the law is either overridden or

misapplied” (citations omitted)).

       And in Douglas v. People, 969 P.2d 1201 (Colo. 1998), the Colorado Supreme

Court sanctioned the admission of evidence that a defendant had previously threatened

his girlfriend and a neighbor with firearms, in a case in which he had been charged with

(…continued)
extreme anger, and threatened the woman with a gun when she refused to do his
bidding.” Spector, 128 Cal. Rptr. 3d at 73.


                          [J-81-2016][M.O. – Dougherty, J.] - 11
menacing with a firearm and claimed self defense. See id. at 1206;12 see also People v.

Kelly, ___ N.W.2d ___, ___ & n.4, 2016 WL 5329749, n.4 (Mich. Ct. App. Sep. 22,

2016) (per curiam) (finding that a trial court had abused its discretion by excluding

proposed testimony, in a sexual assault case in which the defense claimed consent,

concerning seven prior assault cases occurring over 25 years on the theory that,

“employing the doctrine of chances, it strikes us as extraordinarily improbable that eight

unrelated women in four different states would fabricate reports of sexual assaults after

engaging in consensual sex with defendant”).         See generally Marjorie A. Shields,

Application of “Doctrine of Chances” in Homicide, Sexual Crimes, and other Offenses

Against the Person, 11 A.L.R. 7th Art. 1 (2015) (“The doctrine of chances has been

used to determine that admissibility of evidence of extrinsic acts to prove intent,

knowledge, or absence of mistake or accident in homicide, sexual crimes, and other

crimes against the person. In other words, the more often the defendant commits the

actus reus, the less is the likelihood that the defendant acted accidentally or

innocently.”).

       There is no question that the doctrine of chances must be applied with

substantial caution, given the potential to associate the rationale with a propensity-

based inference. See, e.g., LEONARD, NEW WIGMORE §7.3.2 (explaining, with reference

to an example of the doctrine’s application, that, “[t]hough this is close to the forbidden

character-based reasoning, it does not cross the line” (footnote omitted)).13 One court

summarized this cautionary advice, and associated safeguards, as follows:

12
   Significantly, the court also observed that “[h]ad Douglas not asserted his claims of
self-defense, there may not have been any logical relevance independent of showing
his bad character as prohibited by CRE 404(b).” Douglas, 969 P.2d at 1206.

13
   Accord MYERS ON EVID. INTERPERSONAL VIOLENCE §8.06 (noting the closeness
between a strain of non-character-based logic and propensity-based reasoning, while
(continued…)
                         [J-81-2016][M.O. – Dougherty, J.] - 12
              At least one commentator, Professor Edward Imwinkelried,
              urges courts to be cautious when deciding whether to allow
              the prosecution to introduce evidence of other acts and rely
              on the doctrine of chances to prove the actus reus. This is
              so because “[i]f uncharged misconduct becomes routinely
              admissible to prove the actus reus, there will be little left to
              the prohibition” that such evidence cannot be used to prove
              that a defendant acted in conformity with his or her
              character.

              To protect against the exception swallowing the rule,
              Professor Imwinkelried recommends that the trial court
              determine whether the prosecution has satisfied three
              criteria. First, is the evidence of other acts roughly similar to
              the charged crime? Second, does the number of unusual
              occurrences in which the defendant has been involved
              exceed the frequency rate for the general population? Third,
              is there a real dispute between the prosecution and the
              defense over whether the actus reus occurred?
People v. Everett, 250 P.3d 649, 658 (Colo. App. 2010) (quoting and citing

Imwinkelried, The Use of Evidence of an Accused’s Uncharged Misconduct, 51 OHIO

ST. L.J. at 589-93) (internal citations omitted).

       In the present case, as previously discussed, the defense at Appellant’s trial

disputed the actus reus of the murder and affirmatively claimed accident. In response,

the prosecution sought to admit multiple instances in which Appellant had previously

attacked women in circumstances bearing a degree of commonality.                  See Majority

Opinion, slip op. at 21. Although I respectfully but greatly disagree with the majority’s

depiction of these incidents as “strikingly similar” to the killing of Ms. Null, or as


(…continued)
concluding that “[s]ince the prevailing view is logically defensible, the theory survives,”
and “[d]efendant’s remedy is to request a limiting instruction cautioning the jury not to
use the evidence as proof of bad character” and to “argue that the probative value of the
evidence is substantially outweighed by the danger of jury confusion and unfair
prejudice”).


                           [J-81-2016][M.O. – Dougherty, J.] - 13
reflecting a “virtual signature,” id. at 21-22, I do find them to be “roughly similar” and as

substantially “fall[ing] into the same general category,” Imwinkelreid, The Use of

Evidence of an Accused’s Uncharged Misconduct to Prove Mens Rea, 51 OHIO ST. L.J.

at 589-90, along the lines of the Spector and Johns cases. See generally Leonard, Use

of Uncharged Misconduct Evidence, 81 NEB. L. REV. at 163 (“One advantage of the

doctrine of chances theory is that it does not apply only to cases in which there is

remarkable similarity between the uncharged and the charged acts.”); see also supra

note 6. Moreover, I conclude that there were a sufficient number of incidents to dispel

the appearance of coincidence, making it less likely that accident accounted for

Appellant’s undisputed involvement in the chain of circumstances giving rise to his

being held to account for murder. See supra notes 8-9 and accompanying text.

       Notably, although the prosecution did not raise the doctrine of chances by name,

it did observe that “the need for the other crimes evidence is high in that the case

against the defendant is primarily based on circumstantial evidence and the defendant

has already placed [in] issue the precise cause and manner of the victim’s death.”

Offers of Proof dated Apr. 27, 2011, in Commonwealth v. Hicks, No. 391-2008 (C.P.

Monroe), at ¶15 (emphasis added).14 See generally KENNETH W. GRAHAM, JR., 22B FED.

PRAC. & PROC. EVID. §5247 (1st ed. 2016) (“[E]ven in cases where mistake or accident

seems unlikely, the defense can raise such a claim and open the door to rebuttal by

other crimes evidence.”). To the degree that the Commonwealth’s focus is viewed as

distinct, an appellate court has the ability to affirm a valid verdict for any reason


14
   See generally Leonard, Use of Uncharged Misconduct Evidence, 81 NEB. L. REV. at
160 (observing that doctrine-of-chance logic is “not always labeled as such”); id. at 164
(“Courts often employ doctrine of chances reasoning without labeling it as such,
suggesting that the theory is probably far more ubiquitous in the cases than might first
appear.”).


                          [J-81-2016][M.O. – Dougherty, J.] - 14
appearing as of record. See, e.g., Pa. Dep't of Banking v. NCAS of Del., LLC, 596 Pa.

638, 653, 948 A.2d 752, 761–62 (2008).

       Here, Appellant’s history of violent attacks upon women certainly reduced the

probability that, having been found to be closely associated with a badly bruised body of

a woman whom the Commonwealth contended had been choked, there is an innocent

explanation for his involvement prior to his admitted dismemberment of the body.

Although I agree with the courts and commentators that the distinction between this line

of reasoning and an impermissible propensity-based inference may be modest, I believe

that it is enough to satisfy that logical non-character-based relevance criterion and to

maintain the essential guard against inquisitorial-style determinations of guilt by

character.15

       That said, I reiterate that Rule 404(b) requires trial courts to determine “if the

probative value of the evidence outweighs its potential for unfair prejudice.” Pa.R.E.

404(b)(2). In this respect, I maintain concerns about the power of potentially inevitable

character inferences associated with other-acts evidence, with requiring defendants to

effectively defend mini-trials concerning collateral matters, and about the efficacy of jury

instructions in this context.16 Nevertheless, as I read Appellant’s brief, the focus of his

15
   Accord Douglas, 969 P.2d at 1208 (“[W]hile [Rule 404] is designed to protect parties,
especially criminal defendants, from the human tendency to permit notions of bad
character to carry the day, at the same time, it recognizes that the difficult task of fact-
finding is better facilitated when, if not unduly prejudicial, relevant evidence is admitted.”
(citing J.W. STRONG, MCCORMICK ON EVIDENCE §190 (4th ed. 1992)); Cammack, Using
the Doctrine of Chances to Prove Actus Reus in Child Abuse and Acquaintance Rape,
29 U.C. DAVIS. L. REV. at 411 n.225 (“The doctrine of chances focuses attention on the
improbability of repeated false accusations against the same person, rather than the
defendant’s subjective character, and therefore minimizes the danger of misuse.”); see
also supra note 13.

16
  See generally Milich, The Degrading Character Rule, 47 GA. L. REV. at 789 (positing
that “the typical limiting instruction offers nothing more than a confusing distinction
(continued…)
                          [J-81-2016][M.O. – Dougherty, J.] - 15
argument is upon the position that a high degree of similarity is required to establish

relevance not only under modus operandi theory, but also to demonstrate lack of

accident.17 Accordingly, from my point of view, my difference with such position is

enough to conclude my review of the present appeal.18

      Finally, I appreciate that the judicial treatment of the admission of evidence of

uncharged misconduct in criminal cases has been the subject of intense and sustained

critical commentary. See, e.g., Milich, The Degrading Character Rule, 47 GA. L. REV. at

776 (“Many cases and scholarly articles have detailed the convoluted, contradictory,

and absurd aspects and applications of the character rule.”); United States v. Davis, 726


(…continued)
between the proper and improper use of the evidence”); David A. Sonenshein, The
Misuse of Rule 404(b) on the Issue of Intent in the Federal Courts, 45 CREIGHTON L.
REV. 215, 264-67, 270-71 (2011) (discussing social science research concerning juror
misuse of evidence of other misconduct and the asserted non-efficacy of limiting and
cautionary instructions); Reed, Admitting the Accused’s Criminal History: The Trouble
With Rule 404(b), 78 TEMP. L. REV. at 243 (indicating that “very few commentators
believe that [limiting] instructions really curb the jury’s common-sense use of uncharged
misconduct”).

17
   I recognize that Appellant devotes several pages of his brief to an abstract discussion
of Rule 404(b)’s requirement to balance probative value against prejudicial impact. See
Brief for Appellant at 8-10. He does not, however, meaningfully apply that analysis to
the circumstances of the case, including the critical reliance by the defense on the
suggestion of an accident. Accordingly, as with the broader themes noted above, I do
not consider this aspect to be sufficiently developed for present consideration.

18
   In terms of the presumption of innocence, I observe that the trial court explicitly
directed the jury at Appellant’s trial to apply such presumption, see N.T., Nov. 14, 2014,
at 95-96, and again, Appellant does not offer any basis to contest the prevailing
assumption that jurors follow the charges from the court. See, e.g., Jemison, 626 Pa. at
503, 98 A.3d at 1263. Furthermore, I note that some American evidence codes liberally
allow for the admission of prior bad acts. See, e.g., F.R.E. 413(a) (sanctioning the
admission, in sexual assault cases, of a broad range of evidence “that the defendant
committed any other sexual assault”); see also F.R.E. 414(a) (same for child
molestation).


                         [J-81-2016][M.O. – Dougherty, J.] - 16
F.3d 434, 441 (3d Cir. 2013) (observing that, “[u]ncontroversial at the time of adoption,

Rule 404(b) has become the most cited evidentiary rule on appeal” (citing Thomas J.

Reed, Admitting the Accused's Criminal History: The Trouble with Rule 404(b), 78 TEMP.

L.REV. 201, 211 (2005)).       See generally 2 JOHN H. W IGMORE, EVIDENCE §302

(Chadbourne rev. 1979) (highlighting, in a survey of cases, “bewildering variances of

rulings in the different jurisdictions and even in the same jurisdiction”). It may well be

that the interests of justice would be well served were this Court to consider revamping

the present approach. See, e.g., Milich, The Degrading Character Rule, 47 GA. L. REV.

at 776 (arguing that the “propensity inference is an unreliable proxy for undesirable

character evidence, and efforts to faithfully apply the propensity rule often lead to

confusion and frustration”); Reed, Admitting the Accused’s Criminal History, 78 TEMP. L.

REV. at 250-53 (reflecting a proposal for change).

      Nevertheless, the fact of the matter is that our present rules recognize that many

non-character-based theories of logical relevance may generate character-based

inferences and depend on case-specific screening for prejudice and jury instructions to

guard against impermissible use of other-acts evidence. Again, I find that it would

proceed well beyond the scope of the present appeal, as framed, to delve further into

the deeper issues.19

19
   Certainly, I support the approach of other courts to sharpen the admissibility calculus
within the presently prevailing framework. See, e.g., United States v. Gomez, 763 F.3d
845, 855 (7th Cir. 2014) (establishing a protocol for the admission of evidence of
uncharged misconduct, requiring, inter alia, that the proponent of the other-act evidence
should address the supporting chain of logical relevancy specifically and directly,
“without the straightjacket of an artificial checklist”); Davis, 726 F.3d at 442 (requiring
detailed, focused, on-the-record reasoning to support the admission of evidence of
other bad acts, while stressing that “a mere recitation of the purposes in Rule 404(b)(2)
is insufficient”); United States v. Morley, 199 F.3d 129, 137 (3d Cir. 1999) (“Neither a
trial court nor an appellate court is comforted when a proponent attempts to justify ‘bad
act’ evidence by resorting to a mantra-like recitation of the provisions of Rule 404(b).”);
(continued…)
                         [J-81-2016][M.O. – Dougherty, J.] - 17
       In summary, although I join in the analysis of evidentiary sufficiency and the

statutory review of the verdict aptly rendered by the majority, I concur in the result

concerning the treatment of the other-acts evidence based upon a different rationale.




(…continued)
Johns, 725 P.2d at 317-321 (emphasizing the need to isolate the theory of logical
relevance appropriate to a particular case, rather than reciting the non-exclusive list of
exceptions set forth in Rule 404(b), while contextualizing the case under review as
follows: “the logical relevance theory for which the ‘prior crime’ evidence was offered is
restricted to intent,” and “[i]t follow that we are not discussing admissibility . . . under any
theory of motive, opportunity, preparation, plan, knowledge or identity or any other
unlisted theory”).

Although certainly such level of precision was in no way observed in the present case,
again, this is not a particularized basis on which the appeal has been grounded.


                           [J-81-2016][M.O. – Dougherty, J.] - 18
