J-A04043-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
LOUIS DAWKINS,
Appellee No. 3564 EDA 2015
Appeal from the Order October 29, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0012294-2011
BEFORE: SHOGAN, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MARCH 27, 2017
The Commonwealth appeals from the trial court’s order denying its
motion in limine seeking the admission of prior bad acts evidence in its case
against Appellee, Louis Dawkins.1 We affirm.
We take the relevant facts and procedural history of this matter from
our independent review of the certified record. This case arises from
Appellee’s alleged straw purchases, in coordination with co-defendant Edroy
Wigfall (Wigfall), of three firearms through Tracey Barats (Barats) in January
of 2011. At that time, Barats was residing with a friend, Jill Johnson
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
The Commonwealth has certified that the court’s order terminates or
substantially handicaps the prosecution. See Pa.R.A.P. 311(d).
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(Johnson), an associate of Appellee and Wigfall. On January 11, 2011, while
speaking with Johnson over the telephone, Wigfall asked her to purchase a
gun, and she declined. Johnson then asked Barats, who was present in the
room with her, to purchase the gun, and Barats assented. Wigfall picked
Barats up at Johnson’s residence and began to drive her to a gun shop to
purchase a firearm. Wigfall then called Appellee and arranged for him to
bring Barats to the gun shop instead. Appellee gave Barats money to
purchase the gun, and she filled out the requisite paperwork at the shop.
Barats picked up the gun the following day, and gave it to Appellee. Barats
was not compensated for the transaction.
A few days later, on January 14, 2011, Appellee and Wigfall contacted
Barats and Johnson and informed them that a gun shop was having a sale.
Appellee gave Barats money to purchase two firearms, and she completed
the purchase after filling out the associated paperwork. Appellee provided
Barats with two grams of cocaine after the transaction.
When police arrested Wigfall, they recovered a gun box from his
home. Police traced the serial number on the gun box to a firearm Johnson
had purchased on June 2, 2005. Police did not recover from the home any
of the guns Barats purchased in 2011.
During the police investigation, Johnson provided inconsistent
information regarding four gun purchases she made in 2005. In an October
4, 2011 statement, Johnson indicated that she purchased the guns in 2005
for her own personal use, and not for someone else. (See N.T. Hearing,
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8/25/15, at 6-8). Years later, on September 10, 2015, Johnson gave a
statement indicating that she purchased four firearms for Appellee and
Wigfall in 2005. (See Johnson Interview, 9/10/15, at 1-3). However,
Johnson did not remember actually purchasing two of the firearms, and she
attributed her faulty memory to oxycodone use. (See id. at 2).
The Commonwealth filed an information charging Appellee with
numerous offenses in connection with the 2011 firearms purchases,
including person not to possess a firearm, criminal conspiracy, and unsworn
falsification to authorities. On August 24, 2015, the Commonwealth filed a
motion in limine seeking to admit prior bad acts evidence at trial indicating
that Johnson purchased four firearms for Appellee and Wigfall in June of
2005. See Pa.R.E. 404(b). The trial court denied the Commonwealth’s
motion on October 29, 2015, following a hearing. This timely appeal
followed.2
The Commonwealth raises the following question for our review:
Did the [trial] court err in excluding evidence of
[Appellee’s] prior illegal purchases of handguns—committed with
two of the same co-conspirators—which was relevant to
establish the existence of a conspiracy, to place the cooperating
witnesses’ testimony in context, and to show a common plan,
scheme or design?
____________________________________________
2
The Commonwealth filed a concise statement of errors complained of on
appeal contemporaneously with its notice of appeal. See Pa.R.A.P. 1925(b).
The court entered a Rule 1925(a) opinion on May 5, 2016. See Pa.R.A.P.
1925(a).
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(Commonwealth’s Brief, at 4).
In its issue on appeal, the Commonwealth challenges the trial court’s
ruling that evidence relating to Appellee’s involvement in the 2005 firearms
purchases by Johnson was inadmissible at his trial on the 2011 offenses.
(See id. at 13). The Commonwealth argues that the evidence is admissible
as a prior bad act pursuant to Pa.R.E. 404(b)(2), and is relevant to inform
the jury of the complete story of this case, to place Johnson’s and Barats’
accounts in context, and to reveal a common scheme, plan, or design
between the 2005 and 2011 purchases. (See id. at 13-29). This issue
merits no relief.
Our standard of review is as follows:
Questions concerning the admission of evidence are left to
the sound discretion of the trial court, and we, as an appellate
court, will not disturb the trial court’s rulings regarding the
admissibility of evidence absent an abuse of that 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. [I]f in reaching a conclusion the trial court overrides or
misapplies the law, discretion is then abused and it is the duty of
the appellate court to correct the error.
Commonwealth v. Sitler, 144 A.3d 156, 163 (Pa. Super. 2016) (en banc)
(citations and quotation marks omitted).
“Relevance is the threshold for admissibility of evidence.”
Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super. 2015) (en banc),
appeal denied, 128 A.3d 220 (Pa. 2015) (citation omitted). “Evidence is
relevant if it logically tends to establish a material fact in the case, tends to
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make a fact at issue more or less probable or supports a reasonable
inference or presumption regarding a material fact.” Id. (citation omitted).
“All relevant evidence is admissible, except as otherwise provided by law.”
Id. (citation omitted).
Generally, evidence of prior bad acts or
unrelated criminal activity is inadmissible to show
that a defendant acted in conformity with those past
acts or to show criminal propensity. Pa.R.E.
404(b)(1). However, evidence of prior bad acts may
be admissible when offered to prove some other
relevant fact, such as motive, opportunity, intent,
preparation, plan, knowledge, identity, and absence
of mistake or accident. Pa.R.E. 404(b)(2). 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.
The Commonwealth must prove beyond a reasonable
doubt that a defendant has committed the particular crime of
which he is accused, and it may not strip him of the presumption
of innocence by proving that he has committed other criminal
acts.
* * *
The purpose of Rule 404(b)(1) is to prohibit the admission
of evidence of prior bad acts to prove “the character of a person
in order to show action in conformity therewith.” Pa.R.E.
404(b)(1). While Rule 404(b)(1) gives way to recognized
exceptions, the exceptions cannot be stretched in ways that
effectively eradicate the rule. With 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. . . .
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Commonwealth v. Ross, 57 A.3d 85, 98–99, 104 (Pa. Super. 2012) (en
banc), appeal denied, 72 A.3d 603 (Pa. 2013) (case citations and footnote
omitted).
When ruling upon the admissibility of evidence under the
common plan exception, the trial court must first examine the
details and surrounding circumstances of each criminal incident
to assure that the evidence reveals criminal conduct which is
distinctive and so nearly identical as to become the signature of
the same perpetrator. Relevant to such a finding will be the
habits or patterns of action or conduct undertaken by the
perpetrator to commit crime, as well as the time, place, and
types of victims typically chosen by the perpetrator. Given this
initial determination, the court is bound to engage in a careful
balancing test to assure that the common plan evidence is not
too remote in time to be probative. If the evidence reveals that
the details of each criminal incident are nearly identical, the fact
that the incidents are separated by a lapse of time will not likely
prevent the offer of the evidence unless the time lapse is
excessive. Finally, the trial court must assure that the probative
value of the evidence is not outweighed by its potential
prejudicial impact upon the trier of fact. To do so, the court
must balance the potential prejudicial impact of the evidence
with such factors as the degree of similarity established between
the incidents of criminal conduct, the Commonwealth’s need to
present evidence under the common plan exception, and the
ability of the trial court to caution the jury concerning the proper
use of such evidence by them in their deliberations.
Tyson, supra at 358–59 (citation omitted). “[M]uch more is demanded
than the mere repeated commission of crimes of the same class, such as
repeated burglaries or theft.” Commonwealth v. Semenza, 127 A.3d 1, 8
(Pa. Super. 2015) (citation omitted).
“[Our Supreme] Court has also recognized the res gestae exception,
permitting the admission of evidence of other crimes or bad acts to tell ‘the
complete story.’” Commonwealth v. Hairston, 84 A.3d 657, 665 (Pa.
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2014), cert. denied, 135 S.Ct. 164 (2014) (citations omitted). “Such
evidence may be admitted, however, only if the probative value of the
evidence outweighs its potential for unfair prejudice.” Id. (citation and
internal quotation marks omitted). “A final requirement is that if evidence of
a prior criminal incident is to be admitted under [an] exception, it must be
determined by the court to be established by substantial evidence[.]”
Commonwealth v. Donahue, 549 A.2d 121, 127 (Pa. 1988) (citation and
emphasis omitted). “[B]efore the evidence is admitted at all, this factor of
the substantial or unconvincing quality of the proof should be weighed in the
balance.” Id. (citation omitted).
Instantly, the trial court determined that the evidence at issue was not
admissible under the common plan or res gestae exception. (See Trial
Court Opinion, 5/05/16, at unnumbered pages 3-5). The court further found
that the Commonwealth appeared to be advancing a criminal propensity
argument regarding Appellee, and that the proffered evidence regarding the
2005 Johnson purchases was unreliable. (See id. at unnumbered pages 5-
6). We agree with the trial court.
Specifically, a review of the record demonstrates that any connection
between the 2005 and the 2011 firearms purchases is tenuous, and the
evidence does not establish any type of signature behavior on the part of
Appellee, or a common plan or scheme. Although the Commonwealth
repeatedly claims that the “same individuals” and “same purchaser”
participated in each incident, (Commonwealth’s Brief, at 24-25 (emphasis
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omitted); see id. at 22), this assertion is belied by the record, which reflects
that Barats, the purchaser of the firearms in 2011, is not implicated at all in
the Johnson purchases, which occurred six years earlier.
Furthermore, the record supports the trial court’s conclusion that the
Commonwealth failed to present adequate evidence that the 2005 straw
purchases actually occurred. Johnson’s 2015 statement implicating Appellee
and Wigfall in those purchases directly conflicts with her earlier statement
that she purchased the firearms for her own use. Moreover, Johnson’s 2015
statement appears unreliable on its face, in that she readily admits that she
does not remember purchasing two of the firearms because she “was on
Oxys a lot at the time.” (Johnson Interview, 9/10/15, at 2). Although police
found a gun box linked to a 2005 Johnson purchase in Wigfall’s home, they
did not recover firearms, and neither Appellee nor Wigfall were prosecuted in
connection with the 2005 purchases.
In sum, we conclude that the trial court did not abuse its discretion in
declining to admit the prior bad acts evidence proffered by the
Commonwealth. See Sitler, supra at 163. At best, the Commonwealth has
shown evidence of only “the mere repeated commission of crimes of the
same class,” which is insufficient to establish an exception to the general
rule barring prior bad acts evidence. Semenza, supra at 8 (citation
omitted). The Commonwealth failed to demonstrate any type of signature
or distinctive criminal conduct on the part of Appellee, or establish “a close
factual nexus [between the two incidents] sufficient to demonstrate the
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connective relevance of” the 2005 Johnson purchases to the instant case.
Ross, supra at 104; see also Tyson, supra at 358–59. Therefore, the
Commonwealth’s issue on appeal does not merit relief. Accordingly, we
affirm the order of the trial court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/27/2017
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