J. E04004/14
2015 PA Super 103
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
MYRON COX, : No. 1831 WDA 2012
:
Appellant :
Appeal from the Judgment of Sentence, October 1, 2012,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0016050-2011
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., PANELLA,
DONOHUE, SHOGAN, MUNDY, OLSON, AND OTT, JJ.
OPINION BY FORD ELLIOTT, P.J.E.: FILED APRIL 29, 2015
Myron Cox appeals from the judgment of sentence of October 1, 2012,
following his conviction of criminal attempt (homicide), aggravated assault,
recklessly endangering, and other charges. We vacate and remand for
re-trial.
The testimony in this case is summarized as
follows. Taza Clardy testified that on August 31,
2011, he was walking on the North Side of Pittsburgh
toward a friend’s residence. Since his friend was not
yet home, Clardy walked in the direction of
Ashley Cochran[]’s residence, another acquaintance
in the area. He saw Cochran[] speak with one of a
number of individuals in front of her home, and then
go inside. As Clardy waited on the street for his
friend to arrive, he observed Appellant with another
male and two females. Appellant was wearing black
jeans and a black hoodie. Clardy recognized
Appellant from seeing him in the neighborhood.
Appellant was standing next to a black BMW or
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Mercedes. Clardy spoke with the two men briefly,
discussing a CD that was playing.
After waiting approximately fifteen to twenty
minutes, Clardy decided to walk to the Circle K
convenience store. As he was walking up the street,
texting on his phone, he heard one pop, then
another. Clardy turned around and saw a person
wearing a black hoodie and black jeans pointing a
firearm at him. Clardy asked what the man was
doing. The question was answered by Clardy seeing
the flash of gunfire. Clardy ran and heard five or six
more shots, one of which struck him in the leg. He
told the paramedics that he did not know who had
shot him because he was shot from behind. Clardy
has a scar and residual pain in his leg as a result of
the incident. He identified Appellant out of a photo
array as a person in the area when he was shot.
Ashley Cochran testified that she heard seven
or eight gunshots that night from the living room in
her house. When she heard the first shot, she
grabbed her two year old son, who was sitting on her
lap, and opened the door. She looked left, where
she heard the gunfire, and saw Appellant come
around the corner, put both hands in his pocket
while staring at her, and get into the passenger side
of a BMW. Appellant was dressed in a dark hoodie
with the hood up and dark jeans. Ashley identified
the driver as Jerome Cox, and testified that Jerome
quickly turned the car around and drove away at a
speed in excess of the posted limit.
Cochran also testified that she was involved in
an incident earlier that month involving Appellant.
Cochran observed a fight in front of her house
involving a group of friends, Appellant and his
brother Jerome. Jerome unsuccessfully attempted to
collect a $5 debt from a game of Spades from a
week before. The argument turned physical when
Appellant punched Cochran’s friend from behind.
Alexandra Poss, a neighbor, testified that she
also heard gunshots. Poss and her roommate,
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Cayla Zahoran, got down on the floor because the
shots sounded close. When she went upstairs, she
observed bullet holes in her bedroom window.
Zahoran’s account of the incident mirrored that of
her roommate.
Forensic evidence established that the ten shell
casings found at the scene were fired from the same
weapon.
In contrast, Britney Brown testified that she
was with Appellant at her cousin’s house for a
cookout the entire day and night of August 31, 2011.
Brown testified that the cookout was not scheduled
because of any special occasion, yet a substantial
amount of food was prepared for the Wednesday
night affair. She and Appellant stayed overnight
because they had been drinking and did not have a
ride back. Brown testified that it seemed out of
Appellant’s character to commit such an offense, but
also testified to being unaware of Appellant’s
numerous arrests, including several convictions for
Possession with Intent to Deliver a Controlled
Substance.
Trial court opinion, 3/27/13 at 3-5 (citations to the record omitted).
Appellant has raised the following issues for this court’s review:
I. Was due process and the right to a fair trial
violated where the court permitted the
Commonwealth to introduce prior bad acts with
no notice given until the morning of trial,
where such acts were not proper 404(B)
evidence and where the evidence was overly
prejudicial?
II. Was the evidence insufficient to sustain the
conviction, and therefore an enhanced
sentence, for attempted homicide with serious
bodily injury where, there was no evidence of
risk of death, serious impairment, protracted
loss, or permanent disfiguration; and should
not the sentence therefore be set at a
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maximum of 10-20 years instead of 20-40
years?
III. Did the court err in determining the defense
counsel open[e]d the door to character
evidence, and therefore appellant’s prior
criminal history when a question was asked of
a witness regarding their personal opinion of
[appellant]?
IV. Did the court err in failing to award a new trial
based on after-discovered evidence and did
this error result in [appellant] being denied due
process and a fair trial?
V. Was the sentence imposed manifestly
excessive, unreasonable, and an abuse of
discretion where a statutory maximum
sentence of total confinement was imposed
without consideration of [appellant]’s
rehabilitative needs, or his nature and
characteristics, and where the court focused on
the seriousness of the offense to the exclusion
of other factors and does such a sentence
violate the norms underlying the Sentencing
Code?
Appellant’s brief at 6.
In his first issue on appeal, appellant argues that the trial court should
not have admitted evidence regarding the fight prior to the shooting.
Appellant argues that the Commonwealth failed to give proper notice of its
intention to offer this evidence, and the evidence was irrelevant and
prejudicial. The Commonwealth responds that it did not become aware of
the fight involving appellant until just before trial, and immediately gave
notice to appellant. The Commonwealth contends that the evidence goes to
motive.
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Our standard of review regarding the admissibility of
evidence is an abuse of discretion. “[T]he
admissibility of evidence is a matter addressed to the
sound discretion of the trial court and . . . an
appellate court may only reverse upon a showing
that the trial court abused its discretion.”
Commonwealth v. Weiss, 565 Pa. 504, 776 A.2d
958, 967 (2001) (citations omitted). “An abuse of
discretion is not a mere error in judgment but,
rather, involves bias, ill will, partiality, prejudice,
manifest unreasonableness, or misapplication of
law.” Commonwealth v. Hoover, 16 A.3d 1148,
1150 (Pa.Super.2011).
Commonwealth v. Collins, 70 A.3d 1245, 1251-1252 (Pa.Super. 2013),
appeal denied, 80 A.3d 774 (Pa. 2013).
Pennsylvania Rule of Evidence 404 provides, in relevant part:
(b) Crimes, Wrongs or Other Acts.
(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., Rule 404(b), 42 Pa.C.S.A.
Our Supreme Court has explained:
Evidence of a defendant’s prior criminal
activity is inadmissible to demonstrate
his bad character or criminal propensity.
The same evidence may be admissible
for various legitimate purposes, however,
provided that its probative value
outweighs the prejudicial effect likely to
result from its admission, . . . and an
appropriate limiting instruction is given.
One such evidentiary purpose is . . . to
demonstrate the defendant’s motive for
committing the crime charged.
Collins, 70 A.3d at 1252, quoting Commonwealth v. Paddy, 800 A.2d
294, 307 (Pa. 2002) (citations omitted). “To be admissible under this
exception, there must be a specific ‘logical connection’ between the other act
and the crime at issue which establishes that the crime currently being
considered grew out of or was in any way caused by the prior set of facts
and circumstances.” Commonwealth v. Ross, 57 A.3d 85, 100 (Pa.Super.
2012) (en banc), appeal denied, 72 A.3d 603 (Pa. 2013) (quotation marks
and citations omitted).
It has been succinctly stated that (t)he purpose of
this rule is to prevent the conviction of an accused
for one crime by the use of evidence that he has
committed other unrelated crimes, and to preclude
the inference that because he has committed other
crimes he was more likely to commit that crime for
which he is being tried. The presumed effect of such
evidence is to predispose the minds of the jurors to
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believe the accused guilty, and thus effectually to
strip him of the presumption of innocence.
Commonwealth v. Kinard, 95 A.3d 279, 284 (Pa.Super. 2014) (en banc),
quoting Commonwealth v. Spruill, 391 A.2d 1048, 1049 (Pa. 1978).
The evidence regarding the fight between appellant, his brother, and
Cochran’s friends was not relevant to show motive in this case. The victim,
Clardy, was not present during the card game or the subsequent fight over
the $5 debt which occurred earlier in the month from this incident. The
Commonwealth’s theory was that appellant shot Clardy because he was still
angry about the $5 debt. However, it was actually appellant’s brother,
Jerome, who was owed the $5. Even if appellant got into a fight with one of
Cochran’s friends, this would not establish a motive to shoot Clardy. The
fight preceding the shooting is simply not relevant. The Commonwealth has
failed to demonstrate any logical connection between the two, other than the
fact that some of Cochran’s friends were involved in the fight, and Clardy
also happens to be a friend of Cochran’s. This is a tenuous connection at
best. Cf. Collins, supra (evidence the defendants were involved in the
drug trade was admissible to show motive for killing member of rival drug
distribution organization).
In fact, Clardy testified that he had seen appellant around the
neighborhood, including at Cochran’s house. (Notes of testimony,
4/11-13/12 at 54-55.) Appellant lived across the street from Cochran. (Id.
at 64.) Clardy testified that he had never had any problems with appellant
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in the past. (Id.) Immediately prior to the shooting, Clardy was having a
conversation with appellant and Jerome about a hip-hop album. (Id. at 59.)
Clardy testified their interaction was normal and he did not feel he was in
any danger. (Id. at 87-89.) Similarly, Cochran testified that Clardy had
nothing to do with the card game dispute, and that prior to that incident,
she had a good relationship with the Cox family, including appellant. (Id. at
122-123, 127.) Cochran and appellant used to sit on her porch late at night
and play cards. (Id. at 127.)
Any probative value the incident has is outweighed by its prejudicial
effect, particularly in this case, where the evidence is circumstantial.
Neither Clardy nor Cochran could identify appellant as the shooter, only that
he was in the area and was wearing similar clothing. Therefore, it cannot be
said that admission of this evidence was harmless error in the face of
overwhelming evidence of guilt.
The trial court opines that, in the alternative, the fight was part of the
history of the case and was admissible as res gestae. (Trial court opinion,
3/27/13 at 7 n.2.) See Commonwealth v. Burton, 770 A.2d 771, 778
(Pa.Super. 2001), appeal denied, 868 A.2d 1197 (Pa. 2005), overruled
on other grounds by Commonwealth v. Mouzon, 812 A.2d 617 (Pa.
2002) (evidence of other crimes, wrongs, or bad acts is admissible where
they were part of a chain or sequence of events which formed the history of
the case and were part of its natural development, also known as the
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“complete story” rationale) (citations omitted). However, the
Commonwealth sought to admit the evidence on the basis that it was
relevant to prove motive, not as res gestae. The fight occurred
approximately one month prior to the shooting and Clardy was not even
involved. Furthermore, as stated above, whatever tenuous connection can
be shown between the previous fight and the subsequent shooting would be
outweighed by its prejudicial impact. Apparently, the only basis for
admitting the evidence was to show that appellant is a violent individual,
which is, of course, impermissible. The Commonwealth attempted to
portray appellant as unreasonable and impulsive, precisely the sort of
individual who would fly off the handle and shoot someone over a
$5 gambling debt. (Notes of testimony, 4/11-13/12 at 301-302.) However,
it is well settled that other bad acts evidence is inadmissible to prove a
defendant’s propensity to commit the crime charged. Kinard, 95 A.3d at
284, citing Commonwealth v. Brookins, 10 A.3d 1251, 1256 (Pa.Super.
2010), appeal denied, 22 A.3d 1033 (Pa. 2011).
We determine it was an abuse of discretion to allow the
Commonwealth to present this evidence regarding the fight between
appellant and Cochran’s friends as proof of motive to shoot the victim,
Clardy. As we find appellant’s first issue to be dispositive, we need not
address his remaining claims, including lack of adequate notice.
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Judgment of sentence vacated. Remanded for re-trial. Jurisdiction
relinquished.
Bender, P.J.E., Panella, Donohue, and Ott, JJ. join the Opinion.
Shogan, J. files a Dissenting Opinion which is joined by Gantman, P.J.,
Mundy, and Olson, JJ.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/29/2015
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