J-E01001-16
2016 PA Super 168
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
ROBERT N. SITLER
Appellee No. 3051 EDA 2013
Appeal from the Order November 1, 2013
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0000389-2013
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., BOWES, J., SHOGAN, J.,
LAZARUS, J., MUNDY, J., OLSON, J., OTT, J., and STABILE, J.
CONCURRING AND DISSENTING OPINION BY LAZARUS, J.:FILED JULY 26, 2016
I concur with the majority that the trial court properly granted Sitler’s
motion in limine to exclude evidence of his alcohol consumption prior to the
collision and that the trial court prematurely addressed Sitler’s crimen falsi
charges. I respectfully dissent, however, as to the majority’s conclusion that
the trial court should permit the introduction of evidence of Sitler’s prior
vehicular manslaughter conviction.
The majority emphasizes that Sitler’s prior conviction for vehicular
manslaughter in Alabama is relevant and probative in the instant matter
because it involved similar circumstances and could be used to demonstrate
that Sitler knew his driving behavior created a substantial risk of death.
Both the Commonwealth and the majority rely upon Commonwealth v.
Ross, 57 A.3d 85 (Pa. Super. 2012) (en banc), in which we stated that
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[w]ith a modicum of effort, in most cases it is possible to note
some similarities between the accused’s prior bad conduct and
that alleged in a current case. To preserve the purpose of Rule
404(b)(1), more must be required to establish an exception to
the rule—namely a close factual nexus sufficient to demonstrate
the connective relevance of the prior bad acts to the crime in
question. . . . [T]his Court has warned that prior bad acts may
not be admitted for the purpose of inviting the jury to conclude
that the defendant is a person “of unsavory character” and thus
inclined to have committed the crimes with which he/she is
charged. See, e.g., Commonwealth v. Kjersgaard, 419 A.2d
502, 505 (1980).
Ross, supra at 104-05.1
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1
I note that the facts of Ross involved an attempt to introduce prior bad
acts evidence to show a common plan or scheme, rather than to
demonstrate knowledge. In that circumstance, the similarity between the
acts was extremely significant; to show a common scheme or plan, the
perpetrator’s acts must be so similar that they are “earmark[ed] as the
handiwork of the accused. [M]uch more is demanded than the mere
repeated commission of crimes of the same class[.] . . . The [crime must be
so] distinctive as to be like a signature.” Ross, supra at 102 (citation
omitted) (emphasis in original). Thus, the prior bad acts in Ross were
introduced at trial to show modus operandi rather than knowledge. In some
circumstances, similarity between criminal acts could be useful to show
knowledge. See, e.g., Commonwealth v. Russell, 938 A.2d 1082 (Pa.
Super. 2007) (evidence of defendant’s knowledge of use of accelerant based
upon use in prior arson incident admissible). Additionally, knowledge can be
used to demonstrate state of mind, as the Commonwealth attempts
instantly. See Commonwealth v. McCloskey, 835 A.2d 801 (Pa. Super.
2003) (teenagers’ testimony that they drank alcohol at defendant parent’s
home, in her presence, on regular basis, was admissible to demonstrate
defendant had knowledge and acted recklessly in prosecution for involuntary
manslaughter, which arose from deaths of three teenagers in automobile
accident after they left party at defendant’s home). However, in the instant
matter, I take issue with the conclusion that the similarities between Sitler’s
prior conviction and the current incident provided him with specialized
knowledge; as the trial court noted, “[e]ven without ever having been in an
accident, most people generally know that reckless driving can kill others. . .
. [Additionally, t]here are numerous ways in which an operator of a vehicle
can drive recklessly.” Trial Court Opinion, 4/30/14, at 11.
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Assuming that evidence of Sitler’s prior vehicular manslaughter
conviction is admissible as an exception under Rule 404(b)(2), the majority
glosses over the requirement that the trial court balance the probative value
of the evidence with the potential prejudicial effect it would likely have on a
jury. See id. at 98 (“In determining whether evidence of other prior bad
acts is admissible, the trial court is obliged to balance the probative value of
such evidence against its prejudicial impact.”). Here, the trial court
performed its duty to weigh probative value versus prejudicial effect and
determined that the prejudicial effect of the evidence would be greater. Our
task is to evaluate the trial court’s decision for an abuse of discretion, and
we may not disturb the trial court’s ruling merely because we would have
ruled differently. See Commonwealth v. Horvath, 781 A.2d 1243, 1246
(Pa. Super. 2001) (quoting Commonwealth v. Cohen, 605 A.2d 1212,
1218 (Pa. 1992) (“[A] discretionary ruling cannot be overturned simply
because a reviewing court disagrees with the trial court’s conclusion.”)).
Instantly, even if Sitler’s prior vehicular manslaughter conviction
shows some degree of particular knowledge regarding driving behavior, the
trial court acted within its discretion in determining that the overriding effect
of the evidence likely would be prejudicial. See Horvath, supra at 1247
(lower court did not abuse its discretion in refusing to permit Commonwealth
to offer defendant’s previous summary convictions as evidence to prove
reckless endangerment where court “perceived a high risk that the jury
would misconstrue the purpose for which the prior convictions were offered,
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and a likelihood that the jury would accord undue weight to the defendant’s
prior conduct”). Indeed, the Commonwealth may not introduce evidence
that would “strip [the defendant] of the presumption of innocence by proving
that he has committed other criminal acts.” Ross, supra at 98-99. Thus, in
my view, we are not in a position to disturb the trial court’s ruling regarding
the introduction of Sitler’s prior vehicular manslaughter conviction.
Horvath, supra.
For the foregoing reasons, I would affirm the trial court’s ruling as to
Sitler’s prior vehicular manslaughter conviction and would join the majority’s
decision as to Sitler’s alcohol consumption and crimen falsi charges.
Judge Bowes, Judge Mundy and Judge Stabile join this Concurring and
Dissenting Opinion.
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