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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JAQUILL JAMES BLAKE, :
:
Appellant : No. 1429 MDA 2016
Appeal from the Judgment of Sentence December 10, 2015
in the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0003085-2011
BEFORE: GANTMAN, P.J., SHOGAN, and STRASSBURGER,* JJ.
CONCURRING MEMORANDUM BY STRASSBURGER, J.:FILED APRIL 20, 2017
I respectfully concur. While I agree with the result reached by the
Majority, I disagree with the Majority’s conclusion that the res gestae
exception was applicable in this case.
Appellant claims “that trial counsel was ineffective for failing to object
to the introduction of evidence at the time of trial concerning Appellant’s
drug dealing.” Majority Memorandum at 4-5. Appellant was convicted of
shooting and killing Alexis Rosario (Rosario), following an argument at the
Glenside Housing Projects in Reading, Pennsylvania. N.T., 9/12/2012, at 81-
84. One of the Commonwealth’s witnesses, Dean Schappell (Schappell),
drove Appellant to and from the housing project where the incident
occurred. Id. at 142. Schappell testified that he was in the city that day to
purchase illegal drugs from Appellant. Id. at 138-139. He met Appellant at
a specified location, and once there, Appellant asked Schappell to drive him
*Retired Senior Judge assigned to the Superior Court.
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to the Glenside neighborhood. Id. at 140-142. Schappell agreed, and when
they arrived at the housing projects, Schappell remained in the vehicle while
Appellant exited the truck. Id. at 144. While waiting, Schappell heard
gunshots, turned his head, and witnessed Appellant shooting Rosario. Id. at
144-146. Appellant eventually returned to the vehicle, told Schappell to
drive away, and directed Schappell to a nearby Econolodge hotel. Id. 148-
151. There, Schappell purchased drugs from Appellant before returning to
his home in Hamburg. Id. at 151-152.
The Majority holds that this evidence was admissible as part of the
history of the case, as it “formed the natural development of facts.” Id. at
8. I find that such a broad application of the res gestae exception would
result in its swallowing the rule.
This Court’s extensive review of the history and purpose of the
common law res gestae exception to the exclusion of other-bad-acts
evidence in Commonwealth v. Brown, 52 A.3d 320, 328-32 (Pa. Super.
2012), is instructive. Back in 1883, for example, our Supreme Court
indicated that “[t]he collateral or extraneous offence [sic] must form a link
in the chain of circumstances or proofs relied upon for conviction….” Id. at
330 (quoting Swan v. Commonwealth, 104 Pa. 218, 220 (1883)).
Focusing more on the necessity of interconnectedness, the Brown Court
cited Commonwealth v. Coles, 108 A. 826, 827 (Pa. 1919), in which the
Court asserted that
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bad acts evidence “is necessarily admissible as to acts which are
so clearly and inextricably mixed up with the history of
the guilty act itself as to form part of one chain of
relevant circumstances, and so could not be excluded on
the presentation of the case before the jury without the
evidence being rendered thereby unintelligible.”
Brown, 52 A.3d at 330-31 (quoting Commonwealth v. Coles, 108 A. 826,
827 (Pa. 1919)) (emphasis added in Brown).
An example of such inextricable entanglement is provided in
Commonwealth v. Lark, 543 A.2d 491, 497 (Pa. 1988). In that case,
[Lark] was charged with murdering the owner of a take-out
restaurant, possession of an instrument of crime, terroristic
threats involving repeated threats made to a prosecuting
attorney, and kidnapping a woman and her two children by
holding them hostage while attempting to elude capture by
police. The murder victim identified [Lark] as the person who
robbed him of over $4,000 in cash and he was scheduled to
testify at a preliminary hearing the day after his death. Lark was
prosecuted by Assistant District Attorney Charles Cunningham
for the robbery, despite the death of the witness. [Lark]
threatened Cunningham and absconded during the robbery trial.
The robbery trial continued, and [Lark] telephoned threats to the
prosecutor. He also threatened two detectives attempting to
apprehend him. Officers eventually located [Lark], but he fled
into the home of a woman and her two children and held them
hostage for two hours. When [Lark] was apprehended, he had
the addresses of the prosecutor and the prosecutor’s grandfather
in his possession. In the context of discussing why severance of
the charges was inappropriate, our Supreme Court highlighted
that each crime was necessarily interwoven with the others and
flowed directly from one another.
Brown, 52 A.3d at 331-32. Thus, the narrative made no sense unless all of
the bad acts were understood.
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Summarizing its review of these cases and others, the Brown Court
stated that “the history of the res gestae exception demonstrates that it is
properly invoked when the bad acts are part of the same transaction
involving the charged crime.” Brown, 52 A.3d at 332.
In the instant case, the subsequent drug deal following the shooting
was not part of the same transaction involving the charged crime. The
evidence established that Appellant shot Rosario following an argument at
the housing project. Because there was no evidence introduced that
suggested the motive of the shooting involved Appellant’s dealings with
Schappell, Schappell’s reason for driving Appellant to and from the scene of
the crime is nowhere near being so interconnected as to be inseparable from
the relevant narrative as were the events in Lark.
Furthermore, while Appellant’s drug dealing is mentioned throughout
the testimony, it would not have been difficult to avoid those references.
Schappell’s eyewitness testimony could have been told without revealing
why Schappell was in the city that day or his motivation for driving Appellant
to Glenside.
Thus, because Appellant’s drug dealing and Schappell’s drug purchase
from Appellant had nothing to do with the issue at trial, i.e., whether
Appellant shot and killed Rosario, and it is not so inextricably intertwined
with the relevant issues that omission of such evidence would have made
the story unintelligible, I believe that there is arguable merit to the claim
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that counsel should have sought to exclude references to Appellant’s drug
dealing.
However, I agree with the Majority’s conclusion that “Appellant has
failed to prove the prejudice prong[,]” considering the “overwhelming
evidence presented at trial that established [] Appellant was guilty of the
crimes for which he was convicted.” Majority Memorandum at 8. This
evidence included the testimony of two eyewitnesses who placed Appellant
at the scene of the crime and witnessed him shoot Rosario. Id. Appellant
has not convinced me that the outcome would have been different had
counsel sought to exclude the references to his drug dealing.
Commonwealth v. Hutchinson, 25 A.3d 277, 285 (Pa. 2011) (“To
establish [prejudice], Appellant must show that there is a reasonable
probability that the outcome of the proceedings would have been different
but for counsel’s action or inaction.”). Thus, I would affirm the PCRA court’s
denial of the claim on the basis Appellant has failed to establish prejudice.
P.J. Gantman concurs in the result.
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Com. v. Blake, J.
Combined Opinion