J-E04004-14
2015 PA Super 103
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MYRON COX,
Appellant No. 1831 WDA 2012
Appeal from the Judgment of Sentence October 1, 2012
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): 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.
DISSENTING OPINION BY SHOGAN, J.: FILED APRIL 29, 2015
It is well settled that “[t]he admission of evidence is within the sound
discretion of the trial court, and will be reversed on appeal only upon a
showing that the trial court clearly abused its discretion.” Commonwealth
v. Miles, 846 A.2d 132, 136 (Pa. Super. 2004) (en banc) (citing
Commonwealth v. Lilliock, 740 A.2d 237 (Pa. Super. 1999)). Abuse of
discretion requires a finding of misapplication of the law, a failure to apply
the law, or judgment by the trial court that exhibits bias, ill-will, prejudice,
partiality, or was manifestly unreasonable, as reflected by the record.
Commonwealth v. Montalvo, 986 A.2d 84, 94 (Pa. 2009). Because I
disagree with my learned colleagues in the Majority that the trial court
abused its discretion in admitting into evidence facts surrounding a physical
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alteration, in which Appellant participated, that occurred several weeks prior
to the shooting that precipitated the instant charges, I respectfully dissent.
A motion in limine is a procedure for obtaining a ruling on the
admissibility of evidence prior to or during trial, but before the evidence has
been offered. Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa. Super.
2003). The basic requisite for the admissibility of any evidence in a case is
that it be competent and relevant. Id. A trial court should find evidence
admissible if it is relevant, that is “if it logically tends to establish a material
fact in the case, tends to make a fact at issue more or less probable, or
supports a reasonable inference or presumption regarding a material fact.”
Commonwealth v. Williams, 896 A.2d 523, 539 (Pa. 2006) (quoting
Commonwealth v. Stallworth, 781 A.2d 110, 117-118 (Pa. 2001)).
At the time of Appellant’s trial,1 Pennsylvania Rule of Evidence 402
expressly provided that “[a]ll relevant evidence is admissible, except as
otherwise provided by law[,]” and “[e]vidence that is not relevant is not
admissible.” Pa.R.E. 402. Pennsylvania Rule of Evidence 401 defined
____________________________________________
1
I note that, subsequent to Appellant’s trial, the Pennsylvania Rules of
Evidence were rescinded and replaced, effective March 18, 2013. As set
forth in the explanatory comments to the new rules, they now “closely follow
the format, language, and style of the amended Federal Rules of Evidence.
The goal of the Pennsylvania Supreme Court’s rescission and replacement of
the Pennsylvania Rules of Evidence was . . . to make its rules more easily
understood and to make the format and terminology more consistent, but to
leave the substantive content unchanged.” Explanatory Comments
preceding the Pennsylvania Rules of Evidence, at ¶ 2.
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“Relevance” as “evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.” Pa.R.E. 401.
Likewise, Pennsylvania Rule of Evidence 403 set forth that relevant
evidence “may be excluded if its probative value is outweighed by the
danger of unfair prejudice[.]” Pa.R.E. 403. The comment to Pa.R.E. 403
defined “unfair prejudice” as “a tendency to suggest decision on an improper
basis or to divert the jury’s attention away from its duty of weighing the
evidence impartially.” Pa.R.E. 403 cmt. Furthermore, our Supreme Court
has noted previously that “[e]vidence will not be prohibited merely because
it is harmful to the defendant.” Commonwealth v. Dillon, 925 A.2d 131,
138–139 (Pa. 2007). “[E]xclusion is limited to evidence so prejudicial that it
would inflame the jury to make a decision based upon something other than
the legal propositions relevant to the case.” Commonwealth v. Page, 965
A.2d 1212, 1220 (Pa. Super. 2009) (citing Commonwealth v. Owens, 929
A.2d 1187, 1191 (Pa. Super. 2007)).
As a general rule, a defendant’s prior bad acts, including convictions,
are not admissible to prove criminal propensity or bad character.
Commonwealth v. Paddy, 800 A.2d 294, 307 (Pa. 2002). Rule 404
stated, in pertinent part, as follows:
(b) Other crimes, wrongs, or acts.
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(1) Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show
action in conformity therewith.
(2) Evidence of other crimes, wrongs, or acts may be
admitted for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity or
absence of mistake or accident.
(3) Evidence of other crimes, wrongs, or acts proffered
under subsection (b)(2) of this rule may be admitted in a
criminal case only upon a showing that the probative value of
the evidence outweighs its potential for prejudice.
Pa.R.E. 404(b). “This rule deals exclusively with the evidence of crimes,
wrongs or acts which a party seeks to admit to prove something about an
accused, a complainant or a witness.” Commonwealth v. Thompson, 779
A.2d 1195, 1201 (Pa. Super. 2001). Such evidence may be admissible
“where it is relevant for some other legitimate purpose and not utilized
solely to blacken the defendant’s character.” Commonwealth v. Russell,
938 A.2d 1082, 1092 (Pa. Super. 2007).
Essentially, Rule 404(b) seeks to prevent misuse of other acts
evidence, “specifically, that jurors might convict a defendant because they
perceive the defendant has a bad character or propensity to commit crimes.”
Commonwealth v. Cascardo, 981 A.2d 245, 251 (Pa. Super. 2009)
(quoting Commonwealth v. Hacker, 959 A.2d 380, 392 (Pa. Super.
2008)). Nevertheless, when prior bad acts evidence is offered for some
other legitimate purpose, for example, where the evidence is relevant and
part of the chain or sequence of events that contributed to the natural
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development of the facts - it may be admissible. Id. at 250. “[T]o
determine if evidence of other offenses is admissible under Pa.R.E. 404(b),
we must first assess whether the evidence of the other offenses is relevant
to a permissible purpose and second assess whether its probative value
outweighs its potential for prejudice.” Hacker, 959 A.2d at 392.
In addressing the admission of evidence of Appellant’s involvement in
an altercation, the trial court offered the following analysis:
[E]vidence of the recent dispute tends to establish Appellant’s
motive for the assault on [Mr.] Clardy.
***
[T]he Commonwealth was not attempting to show through
evidence of the prior dispute over the card game debt that
Appellant has a propensity toward criminal conduct. Rather,
[Appellant’s] prior fight shows a motive for his additional
criminal conduct, in that the dispute between Appellant’s group
of friend[s] and [Ms.] Cochran’s [group of friends] had not
resolved and was violent in nature.2 As such, it is highly
probative and this Court did not err in determining that its
probative value outweighs the resulting prejudice to Appellant.
2
Although only the motive exception was argued
and was sufficient as an exception, the evidence
would also be admissible to show the history and
natural development of the events and offenses for
which Appellant was charged.
Trial Court Opinion, 3/27/13, 7 (citations omitted). Upon review of the
certified record, I am constrained to agree with the trial court.
My review reflects that both Mr. Taza Clardy, the victim of the crime
herein, and Ms. Ashley Cochran testified regarding their familiarity with each
other and with Appellant. Specifically, both witnesses testified that
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Ms. Cochran was dating the son of Mr. Clardy’s girlfriend. N.T., 4/11-13/12,
at 51, 115-116. In addition, Ms. Cochran testified that she and Mr. Clardy
were on friendly terms. Id. at 118. Also, both witnesses testified that
Mr. Clardy had been to Ms. Cochran’s home on occasions prior to the
incident in question. Id. at 51-52, 118-119. Mr. Clardy testified that he
would “hang out” with Ms. Cochran about two or three times per week and
that he is still friends with Ms. Cochran. Id. at 85-86. Ms. Cochran testified
that Appellant and his brother lived with their mother in a house across the
street from Ms. Cochran’s home for a long period of time. Id. at 124-125.
Ironically, Mr. Clardy offered testimony that he had been with Appellant at
Ms. Cochran’s home on occasions prior to the incident in question. Id. at
54-55. Mr. Clardy stated that, while he and Appellant may not have
engaged in extended conversations, Mr. Clardy had shaken hands with
Appellant at Ms. Cochran’s home when they had both been present. Id. at
55.
The record further reflects that, several weeks prior to the incident in
question, a group of Ms. Cochran’s friends got into a dispute with a group of
individuals, including Appellant, with regard to a game of cards. Id. at 116.
Ms. Cochran explained that, the week after the card game, a physical fight
occurred in front of her home between Ms. Cochran’s friends and Appellant
and his friends in relation to money owed from the card game. Id. at 116-
118. During the altercation, Appellant struck one of Ms. Cochran’s friends
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from behind. Id. at 118. Ms. Cochran testified that after the fight everyone
involved was still angry. Id. Incidentally, the shooting of Mr. Clardy, which
resulted in the crimes herein, occurred on the street in front of
Ms. Cochran’s home. Although Mr. Clardy was not at the card game or the
fight, there exists testimony in the record reflecting that Appellant did see
Mr. Clardy with Ms. Cochran’s group of friends. Id. at 134-135.
In my estimation, these facts support the trial court’s conclusion that
evidence of the altercation on the street prior to the incident in question
helped establish Appellant’s motive for shooting a firearm at Mr. Clardy, as
one of Ms. Cochran’s friends. In addition, this evidence establishes a
complete history of the events leading up to the shooting of Mr. Clardy.
Moreover, in my assessment, the potential for prejudice from admission of
this evidence does not outweigh its probative value. Accordingly, I do not
believe that the trial court abused its discretion in allowing the admission of
the evidence regarding the prior fight on the street. Hence, I respectfully
dissent.
P.J. Gantman, Judge Mundy, and Judge Olson join this dissenting
opinion.
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