J-A18025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    HAROLD MICHAEL FRANKS                      :   No. 179 WDA 2019

                Appeal from the Order Entered January 17, 2019
    In the Court of Common Pleas of Westmoreland County Criminal Division
                      at No(s): CP-65-CR-0005049-2017


BEFORE: BOWES, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY NICHOLS, J.:                           FILED OCTOBER 16, 2019

       The Commonwealth appeals from the order denying its motion in limine

regarding the admissibility of hearsay and other bad acts evidence in its

prosecution of Appellee Harold Michael Franks.1 The Commonwealth argues

that the evidence at issue is admissible under the applicable Pennsylvania

Rules of Evidence and relevant caselaw. The Commonwealth also argues that

the trial court erred in taking judicial notice of certain facts about Appellee’s

relationship with the complainant. We reverse in part and remand.

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

On October 29, 2017, Greensburg City Police Officer Jason Fidazzo was on

duty, working an overnight shift. At approximately 3:00 a.m., Officer Fidazzo
____________________________________________


1 The Commonwealth certified that the order terminated or substantially
handicapped the prosecution of this matter at the time it filed its notice of
appeal from this interlocutory order. See Notice of Appeal, 1/28/19; Pa.R.A.P.
311(d).
J-A18025-19



exited the police station to go to his patrol car in the parking lot. At the same

time, a Honda CRV drove into the parking lot and pulled up to the steps where

the officer was standing.

      Officer Fidazzo approached the vehicle, shined a light into the passenger

compartment, and observed Melissa Franks (Complainant), who was the

driver and sole occupant. Complainant was “[v]isibly upset, shaking, [and]

had . . . fresh blood on her face.” N.T. Pretrial Hr’g, 8/27/18, at 9. Officer

Fidazzo asked Complainant what had happened, but “[s]he was breathing

heavily and was unable to tell [him] exactly what was going on at that time.”

Id.

      Officer Fidazzo noticed that Complainant was covering herself with a

jacket, and it appeared that she was not wearing clothing underneath the

jacket. Officer Fidazzo helped Complainant out of her car, and he escorted

her into an interview room inside the police station “so she could be away

from everybody else.” Id. at 10. Inside the police station, Officer Fidazzo

observed “fresh injuries on her face,” and he called paramedics for assistance.

Id.

      Approximately ten minutes after Complainant entered the police station,

Officer Fidazzo again asked her about what had happened. Complainant said

that she got into an argument with Appellee, her husband, and she provided

her Hempfield Township address to Officer Fidazzo. Officer Fidazzo recognized

that the address was not located within his jurisdiction, and he called the

Pennsylvania State Police (PSP) to commence an investigation.

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       Regarding Complainant’s statements, Officer Fidazzo testified:

       She indicated that she was assaulted by her husband and that
       assault turned into some type of sexual assault in nature. She
       indicated that he forced her to perform oral sex on him.

       At that time, I kind of stopped her. Being that she was so upset,
       she was hard to understand. I didn’t want to push the issue
       further being that I didn’t personally need that information and
       that she would have to repeat it all again in a little bit anyway.

Id. at 11.

       Within minutes, PSP Troopers Kalen Gerhard and Brandon Boyd arrived

and saw that Complainant was “visibly shaking, distraught, crying.” Id. at

20. The troopers also observed that Complainant’s eye was “swollen and red,”

her lip was “cut and bloody,” her face was “bruised and red,” and she had

“visible scratches and marks on both sides of her neck.”      Aff. of Probable

Cause, 10/30/17.2

       Complainant informed the troopers that she and Appellee had been at a

bar, and they were “fighting a lot because [Appellee] physically abuses

[Complainant].”       Id.     After returning home, Appellee began to strike

Complainant in the head and face. Complainant alleged that Appellee threw

her onto the bed and forcibly penetrated her vagina with his penis. Despite

Complainant’s protests, Appellee continued the assault.        Appellee pulled

Complainant’s hair and forced her to perform oral sex on him. Complainant



____________________________________________


2Although Troopers Gerhard and Boyd responded to the dispatch, another
PSP trooper, Joseph Lauricia, completed the affidavit of probable cause.

                                           -3-
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also claimed that Appellee held her by the neck, choking her when she

attempted to get away.

        Complainant eventually escaped and ran to a neighbor’s house for aid.

When the neighbor did not answer the door, Complainant drove to the

Greensburg City police station.

        On January 2, 2018, the Commonwealth filed a criminal information

charging Appellee with rape, sexual assault, simple assault, and related

offenses.3 On February 27, 2018, the Commonwealth filed notice of its intent

to introduce evidence of prior bad acts, pursuant to Pa.R.E. 404(b).

Specifically, the Commonwealth emphasized other episodes of domestic

violence that occurred prior to the incident at issue:

        On 7/[2]8/17, [Complainant] requested a [protection from abuse
        (PFA) order] alleging that [Appellee] threatened to end her, that
        he choked her, pushed her, and constantly screams at her and
        that she believes he will kill her. That was dismissed on 8/22/17.

        On 8/14/17, [Appellee] was charged with simple assault,
        strangulation, and terroristic threats after [Complainant] reported
        that [Appellee] grabbed her neck, put his hand over her mouth
        and threatened to break her neck. [Complainant] refused to
        cooperate with prosecution and the case was dismissed at the
        preliminary hearing on 8/24/17.

Notice of Intent to Introduce Rule 404(b) Evid., 2/27/18, at 2 (unpaginated).

        On March 5, 2018, the Commonwealth filed a motion in limine seeking

to admit, among other things, Complainant’s out-of-court statements to

Officer Fidazzo. The Commonwealth argued that Complainant’s statements

____________________________________________


3   18 Pa.C.S. §§ 3121(a)(1), 3124.1, and 2701(a)(1), respectively.

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were admissible under the “prompt complaint” and “excited utterance”

exceptions to the hearsay rule.

       Appellee filed his own motion in limine on April 5, 2018. Appellee noted

that Complainant had appeared at a prior hearing for this matter, testifying

that she was under the influence of alcohol when she made her statements to

Officer Fidazzo and the PSP troopers. See Mot., 4/5/18, at ¶ 20. Appellee

also noted that if the Commonwealth called Complainant as a witness at trial,

“she will state that the events did NOT occur as she stated, particularly the

rape.”4 Id. at ¶ 27.

       Appellee acknowledged that the Commonwealth intended to introduce

Complainant’s statements through testimony from other witnesses, but he

labeled the proposed testimony as “classic hearsay.” Id. at ¶ 31. Appellee

argued that Complainant’s statements “should not be admitted as they were

not given with any indicia of reliability as they were given at a time when

[Complainant] was under the influence of drugs and alcohol.” Id. at ¶ 33.

       The trial court conducted two hearings on the parties’ various

evidentiary claims. At the second hearing, conducted on August 27, 2018,


____________________________________________


4 By way of background, the trial court conducted a hearing on Appellee’s
unrelated petition to reinstate bond on March 9, 2018. At that time,
Complainant testified that the alleged crimes did not occur, and she was under
the influence of alcohol and prescription medication on the night in question.
See N.T. Bond Hr’g, 3/9/18, at 25. Further, Complainant testified that she
and Appellee engage in consensual sexual activity that involves physical
striking. Id. at 33.



                                           -5-
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the Commonwealth noted that it had filed another criminal complaint against

Appellee for a subsequent incident of domestic violence against Complainant

on June 22, 2018.5 Consequently, the Commonwealth amended its motion in

limine to request admission of this subsequent bad act. See N.T. Pretrial Hr’g

at 67.

         By opinion and order entered January 17, 2019, the trial court denied

the Commonwealth’s request to admit Complainant’s statements to Officer

Fidazzo pursuant to the excited utterance exception. The trial court also ruled

that     the   Rule   404(b)    evidence       was   inadmissible.   Regarding   the

Commonwealth’s arguments about the prompt complaint exception, the trial

court concluded that its applicability is “contingent upon the declarant-witness

testifying at trial and, as such, [is] not ripe for review.” Trial Ct. Op., 1/17/19,

at 1 n.2.

         Regarding the Rule 404(b) evidence, the trial court found it inadmissible

because Complainant’s “recanted prior testimonial hearsay statements are not

substantial evidence that the [other] bad acts . . . occurred.” Id. at 3. To

support its ruling, the trial court cited Complainant’s prior testimony that she

and Appellee “engage in consensual sex that involves physical striking.” Id.

at 1 n.1. In light of this testimony, the trial court took “judicial notice of this
____________________________________________


5 The criminal complaint and affidavit of probable cause for the June 22, 2018
offenses appear in the certified record as an attachment to the
Commonwealth’s July 2, 2018 motion to revoke bond. Those documents
indicate that Appellee was intoxicated and started screaming at Complainant
about their marital problems. Appellee’s behavior escalated to the point where
he grabbed Complainant by the throat and threatened to kill her.

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discrete and undisputed fact for consideration of the parties’ motions in

limine.” Id.

     The Commonwealth timely filed a notice of appeal on January 28, 2019.

The trial court ordered the Commonwealth to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal, which the Commonwealth timely

filed on February 15, 2019. The trial court subsequently filed a responsive

opinion.

     The Commonwealth now raises five issues for our review:

     [1]. Whether the trial court erred by excluding evidence consisting
     of excited utterances where the court classified them as
     testimonial in response to official police questioning, yet
     [Complainant’s] statements were made while she was crying,
     upset, bleeding, unclothed and asking for help, and were not
     offered in formal structured police interrogation.

     [2]. Whether the trial court erred in not considering admissibility
     of [Complainant’s] initial report of sexual assault as prompt
     complaint by indicating that admissibility is contingent upon
     [Complainant] testifying at trial, where evidence of prompt
     complaint of sexual assault is competent evidence that is properly
     admitted when stated for the included purpose of establishing that
     a complaint was made, and to identify the occurrence complained
     of with the offense charged, and where there is no indication that
     [Complainant] will not testify at trial.

     [3]. Whether the trial court erred in excluding evidence of other
     bad acts that are relevant to show res gestae and are necessary
     to the Commonwealth’s case, without properly balancing the
     probative value against the potential for prejudice including the
     ability to exclude improper prejudice through cautionary
     instructions.

     [4]. Whether the [trial] court improperly denied the
     Commonwealth’s admission of [Pa.R.E.] 404(b) evidence and
     improperly considered credibility of [Complainant’s] recantation
     statements made in this case in determining other bad acts

                                    -7-
J-A18025-19


      evidence inadmissible when credibility is an issue for the jury, and
      the prior PFA order is admissible by certified copy and evidence of
      abuse between defendant and victim is generally admissible in a
      domestic violence case, (See Commonwealth v. Drumheller,
      808 A.2d 893 (Pa. 2002)), and can be shown despite victim
      recantation.

      [5]. Whether the trial court erred in taking judicial notice that
      [Complainant] and [Appellee] regularly engage in consensual sex
      involving physical striking, when the fact is neither generally
      known in the community nor readily and accurately determinable
      from accurate sources in the context of this domestic violence case
      and because judicial notice of a fact constitutes evidence, the
      Commonwealth then becomes obligated to rebut the inference
      and credibility is an issue for the jury, and the question for the
      jury is whether assault crimes occurred.

Commonwealth’s Brief at 4-5.

      In its first issue, the Commonwealth emphasizes that Complainant “was

unclothed, visibly upset, shaking and bloody” when she “drove to a police

station and told [Officer Fidazzo] that she needed help.”      Id. at 16.    The

Commonwealth asserts that Officer Fidazzo “did not sit in the room with

[Complainant] or interrogate” her, but he did ask what happened. Id. The

Commonwealth contends Complainant’s response was not “in narrative form,”

and she “had difficulty talking about the event.”     Id. at 17.   Under these

circumstances, the Commonwealth maintains that Complainant’s statements

qualify as excited utterances, even if Complainant made the statements in

response to the officer’s question. Id. (citations omitted).

      The Commonwealth acknowledges the trial court’s determination that

Complainant’s statements appeared less spontaneous because they occurred

some time after the assault. Id. at 18. The Commonwealth insists, however,



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that Complainant “left her home as fast as she could,” and the she was still

“distraught” at the time of her interaction with the officer.           Id.     The

Commonwealth concludes that the trial court erred in excluding Complainant’s

out-of-court statements to Officer Fidazzo. Id. at 24.

      This Court’s standard of review for issues regarding the admissibility of

evidence is well settled:

      Questions concerning the admissibility of evidence are within the
      sound discretion of the trial court . . . [and] we will not reverse a
      trial court’s decision concerning admissibility of evidence absent
      an abuse of the trial court’s discretion. An abuse of discretion is
      not merely an error of judgment, but is rather the overriding or
      misapplication of the law, or the exercise of judgment that is
      manifestly unreasonable, or the result of bias, prejudice, ill-will or
      partiality, as shown by the evidence of record. If in reaching a
      conclusion the trial court over-rides [sic] or misapplies the law,
      discretion is then abused and it is the duty of the appellate court
      to correct the error.

Commonwealth v. Belknap, 105 A.3d 7, 9-10 (Pa. Super. 2014) (citations

omitted and some formatting altered).

      “Relevance      is   the   threshold   for   admissibility   of   evidence.”

Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super. 2015) (en banc)

(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 tends to support a reasonable inference or proposition
      regarding a material fact. Relevant evidence may nevertheless be
      excluded if its probative value is outweighed by the danger of
      unfair prejudice, confusion of the issues, or misleading the jury,
      or by considerations of undue delay, waste of time, or needless
      presentation of cumulative evidence.



                                       -9-
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Commonwealth v. Danzey, 210 A.3d 333, 342 (Pa. Super. 2019) (citation

omitted and some formatting altered).

      Hearsay is an out-of-court statement made by a declarant, which a party

seeks to offer into evidence to prove the truth of the matter asserted in the

statement. Pa.R.E. 801(c). Generally, hearsay is not admissible except as

provided by the Pennsylvania Rules of Evidence, by other rules prescribed by

the Pennsylvania Supreme Court, or by statute. Pa.R.E. 802. “The rationale

for the hearsay rule is that hearsay is too untrustworthy to be considered by

the trier of fact.”   Commonwealth v. Charlton, 902 A.2d 554, 559 (Pa.

Super. 2006) (citation omitted).

      “Exceptions have been fashioned to accommodate certain classes of

hearsay that are substantially more trustworthy than hearsay in general, and

thus merit exception to the hearsay rule.”           Id. (citation omitted).

Pennsylvania Rule of Evidence 803(2) provides one such exception, for excited

utterances, as follows:

      A statement relating to a startling event or condition, made while
      the declarant was under the stress of excitement that it caused.
      When the declarant is unidentified, the proponent shall show by
      independent corroborating evidence that the declarant actually
      perceived the startling event or condition.

Pa.R.E. 803(2); see also Commonwealth v. Murray, 83 A.3d 137, 157-58

(Pa. 2013) (reiterating that “it must be shown first, that [the declarant] had

witnessed an event sufficiently startling and so close in point of time as to

render her reflective thought processes inoperable” (citation omitted)).



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      The following factors guide this Court in evaluating whether an out-of-

court statement is admissible pursuant to the excited utterance exception:

      1) whether the declarant, in fact, witnessed the startling event;
      2) the time that elapsed between the startling event and the
      declaration; 3) whether the statement was in narrative form
      (inadmissible); and, 4) whether the declarant spoke to others
      before making the statement, or had the opportunity to do so.
      These considerations provide the guarantees of trustworthiness
      which permit the admission of a hearsay statement under the
      excited utterance exception. It is important to note that none of
      these factors, except the requirement that the declarant have
      witnessed the startling event, is in itself dispositive. Rather, the
      factors are to be considered in all the surrounding
      circumstances to determine whether a statement is an
      excited utterance.

Commonwealth v. Keys, 814 A.2d 1256, 1258 (Pa. Super. 2003) (citations

omitted, some formatting altered, and emphasis in original); see also

Commonwealth v. Crosby, 791 A.2d 366, 370 (Pa. Super. 2002) (stating

that “[t]he excited utterance exception includes statements made in response

to questioning as well as those made shortly after the event. . . .” (citation

omitted)).

      “There is no set time interval following a startling event or condition

after which an utterance relating to it will be ineligible for exception to the

hearsay rule as an excited utterance.” Pa.R.E. 803(2) cmt.

      The declaration need not be strictly contemporaneous with the
      existing cause, nor is there a definite and fixed time limit. . . .
      Rather, each case must be judged on its own facts, and a lapse of
      time of several hours has not negated the characterization of a
      statement as an “excited utterance.” . . . The crucial question,
      regardless of the time lapse, is whether, at the time the statement
      is made, the nervous excitement continues to dominate while the
      reflective processes remain in abeyance.

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Id. (citation omitted).

      Instantly, Complainant informed Officer Fidazzo that Appellee physically

and sexually assaulted her. The assault amounts to a “startling event” for

purposes of the excited utterance exception. See Commonwealth v. Gray,

867 A.2d 560, 571 (Pa. Super. 2005) (holding that a witness who watched the

assault of her mother viewed a startling event for purposes of the excited

utterance exception).

      Regarding the lapse in time between the assault and Complainant’s

statements, Officer Fidazzo observed that Complainant’s injuries were still

fresh when she arrived at the police station. See N.T. Pretrial Hr’g at 9-10.

Further, Complainant stated that she went to a neighbor’s house seeking aid

and that no one answered the door, then she immediately proceeded to the

police station. See Aff. of Probable Cause, 10/30/17.

      Significantly, any lapse in time between the startling event and the

statements did not dissipate the “nervous excitement” Complainant felt after

the assault.   See Pa.R.E. 803(2) cmt.        Throughout his interaction with

Complainant, Officer Fidazzo described her as upset, shaking, crying,

breathing heavily, and difficult to understand. See N.T. Pretrial Hr’g at 9-15.

This evidence of Complainant’s demeanor established that she continued to

experience overpowering emotion caused by the startling event at the time

she made the statements. See Commonwealth v. Barnyak, 639 A.2d 40,

43-44 (Pa. Super. 1994) (explaining that statements made by a shooting

victim at the hospital shortly after the incident qualified as excited utterances;

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medical personnel who treated the victim testified that she was upset when

she came to the emergency room, and she was still upset when she left

approximately two hours later).

      We also note that the trial court found Complainant’s statements to be

“testimonial” due to “calculated and paused questioning” by the police. See

Trial Ct. Op., 3/29/19, at 4. Officer Fidazzo testified, however, that he made

Complainant stop talking and he left the interview room after learning about

the assault. See N.T. Pretrial Hr’g at 10, 11. Officer Fidazzo testified: “I didn’t

interview her for her sake because she was so upset at that time, and I knew

it would be hard get anything valuable out of her. I got only what I needed

for that exact time.” Id. at 16.

      This testimony reveals that Complainant’s statements were not the

result of calculated police interviewing techniques.     Rather, Officer Fidazzo

asked Complainant about what happened to her. He immediately stopped all

questioning after receiving her answer alleging that Appellee assaulted her.

      Under these circumstances, the record demonstrates that Complainant’s

out-of-court statements to Officer Fidazzo qualified as excited utterances.

See Pa.R.E. 803(2); Keys, 814 A.2d at 1258. Accordingly, the trial court

abused its discretion in denying the Commonwealth’s motion in limine on this

basis, and we reverse the trial court’s order to the extent it found that

Complainant’s statements to Officer Fidazzo were inadmissible.                See

Belknap, 105 A.3d at 9-10.




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      In its second issue, the Commonwealth contends that “[e]vidence of a

prompt complaint of sexual assault is competent evidence properly admitted

when limited to establish that a complaint was made and also to identify the

occurrence complained of with the offense charged.” Commonwealth’s Brief

at 25. The Commonwealth asserts that “[t]imeliness of complaint has been

deemed relevant and admissible generally to: explain inconsistency or silence;

to corroborate similar statements; or as a res gestae declaration.” Id. The

Commonwealth argues that Complainant’s initial contact with Officer Fidazzo

is admissible as a prompt complaint, regardless of whether Complainant

“testifies about the details of the event as she originally reported them.” Id.

at 27.   The Commonwealth concludes that the trial court erred by not

determining whether it should admit Complainant’s statements to Officer

Fidazzo as a prompt complaint of the sexual assault. Id.

      Pennsylvania Rule of Evidence 613 provides, in pertinent, as follows:

      Evidence of a witness’s prior consistent statement is admissible to
      rehabilitate the witness’s credibility if the opposing party is given
      an opportunity to cross-examine the witness about the statement
      and the statement is offered to rebut an express or implied charge
      of . . . fabrication, bias, improper influence or motive, or faulty
      memory and the statement was made before that which has been
      charged existed or arose. . . .

Pa.R.E. 613(c)(1).

      In cases involving sexual assault, Rule 613 authorizes the
      Commonwealth to present evidence in its case-in-chief of a
      prompt complaint by the victim because [the] alleged victim’s
      testimony is automatically vulnerable to attack by the defendant
      as recent fabrication in the absence of evidence of hue and cry on
      her part. Evidence of a complaint of a sexual assault is competent

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       evidence, properly admitted when limited to establish that a
       complaint was made and also to identify the occurrence
       complained of with the offense charged.

Commonwealth v. Bryson, 860 A.2d 1101, 1104 (Pa. Super. 2004) (en

banc) (citations omitted and some formatting altered).

       Instantly, the trial court declined to rule on whether Complainant’s out-

of-court statements are admissible under the prompt complaint exception,

noting that the exception is contingent upon the declarant testifying at trial.

In light of the relevant caselaw, the trial court did not err in deferring its ruling,

and the Commonwealth is not entitled to relief on its second claim.              See

Commonwealth v. Freeman, 441 A.2d 1327, 1332 n.4 (Pa. Super. 1982)

(stating that “[i]f the alleged victim does not testify that she was raped, then

evidence of her fresh complaints cannot corroborate such testimony and thus

is not admissible under this special evidential rule”).6

       In its third and fourth issues, the Commonwealth contends that it sought

admission of Appellee’s other bad acts to demonstrate a “res gestae pattern

of domestic violence, absence of accident, common plan, intent, and to rebut

consent, not to show criminal character.” Commonwealth’s Brief at 29. The

Commonwealth maintains that the probative value of the other bad acts

evidence outweighs its prejudicial effect, and the trial court should not prohibit

the evidence merely because it is harmful to Appellee. Id. at 30.


____________________________________________


6We may rely on caselaw that predates the adoption of the Pennsylvania Rules
of Evidence so long as it is consistent with the current rules.         See
Commonwealth v. Aikens, 990 A.2d 1181, 1185 n.2 (Pa. Super. 2010).

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      The Commonwealth acknowledges the trial court’s finding that

Appellee’s other bad acts were unsupported by “substantial evidence” in light

of Complainant’s recantation.      Id. at 33.    The Commonwealth insists,

however, that substantial evidence supported the conclusion that Appellee

committed the other bad acts where (1) Complainant provided oral and

written statements about the acts; (2) officers observed Complainant’s

injuries and had personal knowledge of the charges against Appellee; and (3)

the PFA against Appellee is a self-authenticating document. Id. at 34. The

Commonwealth concludes that the trial court erred in excluding evidence of

Appellee’s other bad acts, which should be admitted pursuant to Rule 404(b).

Id. at 40.

      “Evidence of a crime, wrong, or other act is not admissible to prove a

person’s character in order to show that on a particular occasion the person

acted in accordance with the character.”        Pa.R.E. 404(b)(1).    However,

evidence of a crime, wrong, or another act “may be admissible for another

purpose, such as proving motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.”          Pa.R.E.

404(b)(2). “In a criminal case this evidence is admissible only if the probative

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

      “An exception to Rule 404(b) exists that permits the admission of

evidence where it became part of the history of the case and formed part of

the natural development of facts. This exception is commonly referred to as




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the res gestae exception.” Commonwealth v. Ivy, 146 A.3d 241, 251 (Pa.

Super. 2016) (citations omitted).

     The res gestae exception to the general proscription against
     evidence of other crimes, is also known as the complete story
     rationale, i.e., evidence of other criminal acts is admissible to
     complete the story of the crime on trial by proving its immediate
     context of happenings near in time and place.

     Where the res gestae exception is applicable, the trial court must
     balance the probative value of such evidence against its prejudicial
     impact. In conducting this balancing test, courts must consider
     factors such as the strength of the other crimes evidence, the
     similarities between the crimes, the time lapse between crimes,
     the need for the other crimes evidence, the efficacy of alternative
     proof of the charged crime, and the degree to which the evidence
     probably will rouse the jury to overmastering hostility.

     Our Supreme Court has stated that PFA petitions are admissible
     and relevant to demonstrate the continual nature of abuse and to
     show the defendant’s motive, malice, intent, and ill-will toward
     the victim.

Commonwealth v. Yocolano, 169 A.3d 47, 55 (Pa. Super. 2017) (citations

omitted and some formatting altered).

     “Evidence of prior bad acts may [also] be admitted to establish the

‘existence of a common scheme, [establish] an individual’s motive, intent, or

plan, or [identify] a criminal defendant as the perpetrator of the offense

charged.’” Ivy, 146 A.3d at 253 (citation omitted). “Two conditions must be

satisfied to admit prior-crimes evidence to establish a common scheme: (1)

the probative value of the evidence must outweigh its potential for prejudice

against the defendant and (2) a comparison of the crimes must establish a




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logical connection between them.”         Id. (citation and quotation marks

omitted).

      Instantly, the Commonwealth sought to introduce evidence of (1)

Complainant’s July 28, 2017 PFA petition against Appellee; (2) the charges

stemming from Appellee’s August 14, 2017 domestic violence incident; and

(3) the charges stemming from Appellee’s June 27, 2018 domestic violence

incident.   Each piece of evidence included allegations of verbal abuse and

strangulation.   Here, the probative value of the evidence outweighs its

potential for unfair prejudice, because the Commonwealth’s evidence fulfills

the res gestae exception by seeking to “complete the story of the crime by

proving its immediate context of happenings near in time and place.” See

Yocolano, 169 A.3d at 55; see also Ivy, 146 A.3d at 252 (noting that

“[e]vidence of prior abuse between a defendant and an abused victim is

generally admissible to establish motive, intent, malice, or ill-will”).

      Moreover, each piece of evidence shares certain similarities, including

allegations of verbal abuse and strangulation perpetrated by Appellee against

Complainant during a period in which they experienced severe marital

distress.   Pursuant to the relevant caselaw, the trial court should have

admitted the Commonwealth’s evidence under the common plan, scheme, or

design exception to Rule 404(b). See Ivy, 146 A.3d at 253; see also Aikens,

990 A.2d at 1185-86 (holding that the facts of a prior assault were “markedly

similar” to the present case such that evidence of the prior assault was




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admissible under the common scheme, design, or plan exception, and the

probative value of the evidence outweighed its prejudicial impact).

       We acknowledge the trial court’s conclusion that “[t]he weakness of the

[other] bad acts evidence . . . weighed heavily in [its] analysis when balanced

against the potential for it to unfairly prejudice [Appellee].”   Trial Ct. Op.,

3/29/19, at 9. Nevertheless, the trial court’s concern goes to the weight of

the evidence and not its admissibility. See Commonwealth v. Sherwood,

982 A.2d 483, 498 (Pa. 2009) (rejecting the appellant’s argument that the

trial court should not have admitted prior bad acts evidence through the

testimony of “an unreliable witness who had a motive to accuse” the appellant

of abusing the victim, because such a complaint goes to the weight of the

evidence and not its admissibility).7 Accordingly, the trial court abused its

discretion by prohibiting the Commonwealth from presenting evidence of

Appellee’s prior bad acts. See Belknap, 105 A.3d at 9-10.

       In its fifth issue, the Commonwealth asserts that the trial court took

judicial notice of the fact that Complainant and Appellee regularly engage in

consensual sex that involves physical striking. Commonwealth’s Brief at 41.
____________________________________________


7 The trial court cited Commonwealth v. Donohue, 549 A.2d 121, 127 (Pa.
1988) (quoting McCormick, On Evidence, § 190, 451-52 (2d Ed. 1972)), for
the proposition that “for the jury to be entitled to consider [other bad acts]
there must . . . be substantial evidence of these facts. . . . And it is believed
that before the evidence is admitted at all, this factor of the substantial or
unconvincing quality of the proof should be weighed in the balance.” We note
that our Supreme Court decided Donohue before the adoption of, and
revisions to, Rule 404. Further, Donohue is distinguishable, because the
Court specifically addressed evidence of a prior criminal incident admitted
under the “absence of accident” exception. See Donohue, 549 A.2d at 127.

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The Commonwealth contends that the trial court based its judicial notice on

Complainant’s testimony at the pretrial hearing, despite the fact that other

evidence contradicts Complainant’s testimony.        Id.   The Commonwealth

argues that “[a] judicially noticed fact must not be subject to dispute in that

it is generally known or capable of accurate determination by sources whose

accuracy cannot be questioned.” Id. The Commonwealth concludes that the

trial court erred by taking judicial notice here, because “[t]he sexual practices

of [Appellee] and [Complainant] are not generally known . . . or capable of

accurate determination by resort[ing] to sources whose accuracy cannot

reasonably be called into question.” Id. at 42.

      “The court may judicially notice a fact that is not subject to reasonable

dispute because it . . . is generally known within the trial court’s territorial

jurisdiction; or can be accurately and readily determined from sources whose

accuracy cannot reasonably be questioned.” Pa.R.E. 201(b)(1)-(2).

      A court may take judicial notice of an indisputable adjudicative
      fact. A fact is indisputable if it is so well established as to be a
      matter of common knowledge. Judicial notice is intended to avoid
      the formal introduction of evidence in limited circumstances where
      the fact sought to be proved is so well known that evidence in
      support thereof is unnecessary.

      Judicial notice allows the trial court to accept into evidence
      indisputable facts to avoid the formality of introducing evidence to
      prove an incontestable issue. However, the facts must be of a
      matter of common knowledge and derived from reliable sources
      whose accuracy cannot reasonably be questioned.

Commonwealth v. Brown, 839 A.2d 433, 435 (Pa. Super. 2003) (citations

and quotation marks omitted); see also In Interest of D.S., 622 A.2d 954,


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957 (Pa. Super. 1993) (stating that “a court cannot take judicial notice of a

disputed question of fact”).

       Instantly, the trial court considered Complainant’s testimony from the

pretrial hearing and took judicial notice of her statement that she and Appellee

engage in consensual sex that involves physical striking. Regardless of what

information Complainant offered about her relationship with Appellee, her

testimony was not so reliable that its “accuracy cannot reasonably be

questioned.”       See Brown, 839 A.2d at 435.           We emphasize that

Complainant’s statements to the police detailing physical and sexual abuse,

followed by her recantation of those statements, establish that the nature of

her sexual relationship with Appellee is a disputed question of fact to be

resolved at trial. See D.S., 622 A.2d at 957. Therefore, the trial court abused

its discretion by taking judicial notice of the nature of Complainant’s sexual

relationship with Appellee. See Belknap, 105 A.3d at 9-10.

       Based upon the foregoing, we reverse that portion of the January 17,

2019 order excluding Complainant’s hearsay statements pursuant to the

excited utterance exception of Rule 803(2). We also reverse that portion of

the order excluding evidence of Appellee’s other bad acts. We remand the

matter to Court of Common Pleas so that the case may proceed.8




____________________________________________


8On July 22, 2019, the Commonwealth filed an application to amend its brief,
seeking to correct to typographical errors in the “statement of the case”
section. We grant the Commonwealth’s application.

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J-A18025-19



      Order reversed in part; case remanded. Commonwealth’s application

to amend its brief granted. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/2019




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