Commonwealth v. Ross

DISSENTING OPINION BY

ALLEN, J.:

I respectfully dissent from the Majority’s determination that Appellant, Paul Aaron Ross (“Ross”), is entitled to a new trial, and that evidence of his prior bad acts was inadmissible under Pa.R.Evid. 404(b). See Majority Opinion at 87. The Majority concluded “that the trial court manifestly abused its discretion in refusing to grant Ross a continuance to permit his newly retained private counsel the opportunity to prepare for trial.” Id. The Majority also opined that the trial court “abused its discretion in allowing the Commonwealth to introduce the testimony of three of Ross’ former romantic partners regarding instances of domestic abuse.” Id. at 87. I disagree.

Granting a motion for continuance is within the sound discretion of the trial court. See Commonwealth v. Randolph, 582 Pa. 576, 873 A.2d 1277, 1281 (2005) (discretion is abused when the law is misapplied, or the trial court’s judgment is manifestly unreasonable, partial, prejudiced, biased, or arising from ill-will towards the defendant as reflected in the evidence or record). My review of the record found no such abuse of discretion by the trial court.

My careful review of the certified record reveals: 1) that Ross received consistent and appropriate legal representation; 2) that Ross’ experts were able to assist Ross’ counsel in preparing a defense; 3) that Ross’ requests for additional preparation time were properly considered and honored by the trial court; 4) that Ross suffered no prejudice warranting a new trial; and 5) that the evidence of prior bad acts was admissible.

Assistant Blair County Public Defender Theodore Krol, Esquire, initially handled Ross’ defense. The Majority contends that there is no record evidence supporting the Commonwealth’s assertion that Attorney Krol was “an associate partner of Attorney Dickey.” See Majority Opinion at 92, referencing Appellee’s Substituted Brief on Reargument, at 4 n. 1. However, the certified record shows that one of Attorney Krol’s first legal pleadings on Ross’ behalf was a Request for Bill of Particulars filed on Attorney Dickey’s letterhead, and noting that Attorney Krol was Attorney Dickey’s “Associate.” Request for Bill of Particulars, 12/2/04, at 1.

The professional relationship between Attorney Krol and Attorney Dickey is further evidenced in a July 12, 2005 Order issued by the trial court, directing the Commonwealth to answer Attorney Krol’s “informal request for discovery” issued on June 28, 2005 on Attorney Dickey’s letterhead. Trial Court Order, 7/12/05, at 1; see also Exhibit A, at 1. Significantly, Attorney Krol’s June 28, 2005 letter states, “I have listed some items we would like cop*106ies of ... ”, possibly implying that he was working with Attorney Dickey at this stage. Id. (emphasis added). This implication is supported by the fact that the letter is signed “Yours truly, Law Offices of Thomas M. Dickey”, directly above Attorney Krol’s name. Id.

The December 2, 2004 Request for Bill of Particulars and the June 28, 2005 letter requesting discovery, both on Attorney Dickey’s letterhead, readily substantiates the relationship between Attorneys Krol and Dickey, and supports the conclusion that Attorney Dickey was involved in Ross’ defense well in advance of Attorney Dickey’s formal entry of appearance in this matter.

Additionally, the trial court assigned Phillip O. Robertson, Esquire to be Ross’ death penalty counsel in an Order entered on March 30, 2005. See Trial Court Order, 3/30/05, at 1. Attorney Robertson remained Ross’ death penalty counsel throughout the entire case, further reflecting the continuity and consistency within Ross’ legal defense team. Id.; see also Phillip O. Robertson’s Bills for Services Rendered.

Ross’ request for new counsel was set forth in a pro se pleading Ross filed on July 19, 2005. See Ross’ Innefective [sic] Counsel motion, 7/19/05, at 1. In his motion, Ross asserted his attorney “never sat 1 on 1 with [Ross] in 10 months’ time, to discuss [Ross’] version of events.” Id. at 1. Following an August 18, 2005 hearing, the trial court entered an Order on August 23, 2005 dismissing Ross’ motion. Trial Court Order, 8/23/05, at 1.

On August 22, 2005, Ross re-filed his original pro se motion for ineffective assistance of counsel. Attorney Krol answered Ross’ August 22, 2005 motion on September 1, 2005, and staunchly defended his representation of Ross.

Specifically, Attorney Krol asserted:

[Ross] requested a motion to be filed to dismiss the charges due to insufficient evidence at the preliminary hearing. Counsel indicated this would be frivolous due to the prima facie standard. [Ross] requested statements be suppressed which were given to Cpl. Smith. This motion was filed.
[Ross] was informed motions would be filed for experts to be appointed and the motions were filed. Counsel consulted with [Ross] regarding filing a motion to suppress statements, received reports from Mr. Yuengling [beer company president regarding beers found at crime scene], a motion to view Fee’s residence, and to compel expert inventory, This motion was filed the day of the last pre-trial conference and a copy provided to [Ross].
Counsel met with [Ross] prior to the preliminary conference to discuss the facts of the case and receive his version of events. After the preliminary hearing counsel met with client, investigators, Attorney Robertson [death penalty counsel] and counsel’s paralegal Ann Shey1 to discuss his version of events. Counsel, Don Speice [Chief Public Defender] met with [Ross] at the 2nd pretrial conference and Counsel met [Ross] on July 20th and at the conclusion of the last pre-trial conference in August. [Ross’s] version of events had been fully explained to counsel and counsel has been updated with information from the investigators periodically after the investigators met with [Ross] numerous times over the last several months.
*107Counsel at each meeting with [Ross] discussed aspects of the defense with [Ross].
It is admitted that counsel for [Ross] has a full case load between the Public Defender’s Office and private practice, however, [Ross’] case is worked on routinely with counsel being fully aware of the facts of the prosecutor’s case and [Ross’] version of the case.
Counsel has been informed that the police are talking to witnesses in a manner which may be perceived as intimidating and coercive, as well as, possibly looking through his mail. Counsel is not aware of any inculpatory evidence that is being obtained illegally which may be used at trial.
Counsel is not aware of mail being read by the police and is not aware of any evidence that may have been obtained through the mail that is inculpatory towards [Ross].
Counsel has raised the issue before the Court regarding the “bad act” witnesses and that the defense objected and continues to object to their accuracy as well as their relevance. The matter is one of credibility for the trier of fact.
Counsel for [Ross] believes he competently argued and followed up with a memorandum of law outlining why the “bad acts” testimony should be precluded.
Discrepancies in reports are a credibility issue to be presented at trial which is not a valid pre-trial issue.

Attorney Krol’s Answer to [Ross’] Ineffective Counsel Claim, 9/1/2005, at 1-8.

The trial court entered an Order denying without prejudice Ross’ second pro se petition for ineffective counsel on September 20, 2005. See Trial Court Order, 9/20/05, at 1. Importantly, Attorney Krol’s answer refutes Ross’ claims of ineffectiveness, and contradicts Ross’ repeated efforts to cast aspersions upon the work performed by Attorney Krol on Ross’ behalf.

Attorney Dickey formally filed his entry of appearance on Ross’ behalf on October 6, 2005. See Attorney Dickey’s Praecipe for Entry of Appearance, 10/6/05, at 1. On October 17, 2005, Attorney Dickey filed his first supplemental omnibus pre-trial motions in this case.

Attorney Dickey averred:

[T]his Honorable Court has heretofore granted [Ross] relief in the form of the appointment of various experts; to wit: Dr. Levine (Odonotology); Dr. Shaler (DNA)2; Dr. Vey (forensic pathology). Additionally, this Honorable Court has appointed Jim Ellis (Investigator) as well as Phillip Robertson, Esquire to assist in the investigation and presentment of death penalty phase, respectively-

Ross’ Supplemental Omnibus Pre-Trial Motions, 10/17/05, at 1.

Attorney Dickey explained:

The financial circumstances of [Ross] have not changed save for the fact that [Ross’] father and family relatives have compiled monies to hire private qualified death penalty counsel. Said counsel, this scrivener, has agreed to represent [Ross] for a substantially and vastly reduced fee in light of the present posture of the case.

Id. at 2 (emphasis added).

Therefore, Attorney Dickey requested:

*108Based on the foregoing, judicial economy[,] as well as precedents set forth in previous death penalty cases both in Blair, Cambria[,] and other neighboring counties (wherein experts were appointed notwithstanding the hiring of private eounsel)[,] it is submitted that it is in the best interest of justice that this Honorable Court continue to appoint all experts, investigators, as well as Phillip Robertson, Esquire, in this case.

Id.

The foregoing shows unequivocally that Attorney Dickey was not dissatisfied with the expert choices which had been made by Attorney Krol, and that Attorney Dickey was not seeking to replace the expert services that had already been provided and performed by the defense team.

The October 17, 2005 pleading also requested an order:

[Granting a continuance in order for [Ross] to rebut the Commonwealth’s findings and opinions; and/or exclude the foregoing expert and/or other opinion evidence; and/or appoint additional experts; and/or any and all relief deemed appropriate.

Id. at 5 (emphasis added).

The requests for relief, which were pled in the alternative, clearly subsumed and acknowledged the trial court’s discretion to select “any and all relief deemed appropriate.” Ross’ Supplemental Pre-Trial Omnibus Motions, 10/17/05, at 5.

Before the trial court ruled on the October 17, 2005 pleading, Attorney Dickey filed additional omnibus pre-trial motions on October 21, 2005, requesting the appointment of forensic scientist Larry De-hus with a cap for his services of $6,000. See Ross’ Supplemental Omnibus Pre-Trial Motions, 10/21/05, at 2.

The October 21, 2005 motion indicated Ross’ experts “would need at least a week to analyze, review and [inspect] all evidence in order for [Ross] to be ready for trial.” Id. at 5. The motion stated “[w]hile a continuance of one term is requested, [Ross] would request that at a minimum of no less than one week continuance be granted between the time of completion of jury selection and the beginning of trial.” Id. (emphasis added).

On October 24, 2005, the trial court appointed forensic scientist Larry Dehus (“Dehus”) as an additional defense expert, in response to the October 17, 2005 and October 21, 2005, pre-trial omnibus motions.3 See Trial Court Order, 10/24/05, at 6. In appointing Dehus, the trial court set a cap of $7,000 for his services — $1,000 more than requested. Id. at 6.

Attorney Dickey filed a final set of omnibus pre-trial motions on Friday, October 28,2005, stating:

*109[T]he defense has not been able to receive findings from its experts ...
Over fifty witnesses have been interviewed by members of the Pennsylvania State Police and this scrivener has not had ample time to meet with investigators, locate and/or interview potential witnesses.
The Commonwealth has forwarded to [Ross] lists of additional witnesses as well as additional medical, scientific and/or expert reports; including but not limited to shoe test results[,] “non DNA non scientific evidence” at the eve of jury selection and/or during jury selection. [Ross] has not had a full opportunity to review, analyze, interpret said results and not enough time to interview witnesses, do criminal background checks, etc.
A similar situation currently exists relative to the [Ross’] DNA expert, Dr. Shaler; [Ross’] Odontologist, Dr. Levine[,] as well as Pathologist, Dr. Vey.
As a result of the foregoing, [Ross] requests a continuance of one trial term; and/or in the alternative a continuance for one full week from the date of filing said motion; and/or in the alternative a continuance until Monday, October 31, 2005.”

Ross’ Supplemental Omnibus Pre-Trial Motions, 10/28/05, at 1-2 (emphasis added).

Importantly, notwithstanding the litany of purported outstanding defense tasks set forth in the October 21, 2005 and the October 28, 2005 continuance requests, the fact that the motions requested a seven-day and a three-day continuance, respectively, undermines the contention that Attorney Dickey required a significant amount of time to finalize the preparation of Ross’ defense.

Further, the October 21, 2005 and October 28, 2005 motions disregard that in an August 23, 2005 Order, the trial court advised that “[j]ury selection is scheduled for this matter for Monday, October 17, 2005, with trial to follow upon the selection of the jury.” Trial Court Order, 8/25/05, at 3. However, the trial court subsequently postponed jury selection until October 21, 2005, and after its conclusion on October 25, 2005, the trial court noted “we obviously are not going to start the trial tomorrow ...” N.T., 10/25/05, at 79. Indeed, the trial did not commence until Friday, October 28, 2005. N.T., 10/28/05, at 214.

The certified record shows that the trial court not only honored Ross’ request for an additional expert with a generous budget, but also considered Ross’ need for time in delaying jury selection, and honored it yet again in delaying the start of the trial following jury selection.

Significantly, the trial court detailed its reasoning for denying a longer continuance as follows:

[Ross’] trial counsel entered his appearance October 6, 2005, mere weeks before jury selection commenced. Defense counsel told this Court, upon entering his appearance, he was confident that he would be ready to go to trial, on schedule. As jury selection approached, he asked for multiple continuances for a multitude of reasons. He neither stated then nor does he state now specifically how he would have prepared differently had he been given more time.
After private defense counsel entered the case, the Commonwealth, court and defense counsel worked together to accommodate [Ross’] requests to assure defense counsel’s preparedness. For example[:] the Commonwealth gave defense counsel reports and other documents that were misplaced during the *110transfer of attorneys; we ordered the Pennsylvania State Police to produce the crime scene log, mapping review and “bruise progression” photographs; we also appointed Larry M. Dehus, a forensic scientist, as an expert for the defense, October 24, 2005; furthermore we order the Pennsylvania State Police to physically transport evidence to Mr. De-hus by October 24, 2005; moreover, after jury selection we delayed the eviden-tiary phase of trial by a day and a half to allow Defense counsel adequate time for trial preparation.
Defense counsel worked diligently for [Ross]. He told this Court he worked over lunches, weekends and even into the evenings calling experts, investigators and interviewing witnesses. Perhaps the best evidence of defense counsel’s preparedness exists in the transcript of trial where he asks intelligent, informed questions in lengthy direct and cross-examinations of each and every witness.
This Court found no basis to grant the continuances at the time [Ross] requested them and even less reason in hindsight. In this Court’s eighteen years on the bench we have seen few attorneys who could have taken a capital murder case a few weeks before trial, with the complexity of this case, and have represented [Ross] as diligently and with such informed zealousness as this defense counsel. The record speaks for itself.

Trial Court Opinion and Order, 2/2/06, at 4-5.

The Majority was not persuaded by the trial court’s rationale, and found Ross to be unduly prejudiced. The Majority contends:

Attorney Dickey had to give his opening statement to the jury without knowing the opinions of his expert witnesses, some of whom had been retained within days of the start of trial, and all of whom were still reviewing physical evidence and/or expert reports just received from the Commonwealth.

Majority Opinion at 91.

This finding of prejudice and insufficient time for Attorney Dickey to meet with defense experts in order to learn of their findings and to prepare for trial, are belied by the experts’ billing records which show that their work was completed in time to assist in Ross’ defense.

In an Order entered December 14, 2005, the trial court ordered Dehus to be paid in full for his services. Trial Court Order, 12/14/05, at 1. Dehus’ billing records were appended to the order, and reflect that Dehus had a teleconference with Attorney Dickey on October 20, 2005, and that De-hus met on October 24, 2005 for an hour with “Pa Trooper to receive evidence.” Id., Exhibit A, at 1. More importantly, Dehus spent 2.5 hours on October 26, 2005 examining shoe print evidence. Id. Dehus then spent 8.5 hours on October 27, 2005, 8 hours on October 28, 2005, and 5 hours on October 31, 2005 researching and analyzing evidence. Id.

There is no additional billing showing Dehus ever resumed any substantive expert work in this matter, thus supporting the reasonable conclusion that Dehus completed his research and analysis no later than October 31, 2005. The October 31, 2005 completion date is buttressed by the trial court’s October 24, 2005 Order appointing Dehus and requiring him to complete his work by October 31, 2005 in order to receive payment. See Trial Court Order, 10/24/05, at 6. Moreover, based on his billing records, Dehus’ substantive preparation for this case concluded in advance of his November 8, 2005 testimony.

Likewise, in a separate Order entered December 14, 2005, the trial court ordered *111Dr. Vey, Ross’ forensic pathologist, to be paid for his services in this matter. See Trial Court Order, 12/14/05, at 1. The trial court appended Dr. Vey’s invoice to the Order. Dr. Vey’s invoice only noted 3 hours of “case specific research and trial preparation” for the period of October 13, 2005 until November 9, 2005. Dr. Vey makes no other reference to any other work done on this case prior to his travel and November 9, 2005 testimony. Id., Exhibit A, at 1. This documentation supports the reasonable conclusion that Dr. Vey’s work in this case was not as complex and time-consuming as Attorney Dickey purported, and that Dr. Vey’s work was concluded in time to assist Attorney Dickey in Ross’ defense.

On December 14, 2005, the trial court also ordered a payment to be issued to Dr. Levine, Ross’ dental expert. Trial Court Order, 12/14/05, at 1. Dr. Levine’s invoice, which was attached to the order, notes he only conducted 8 hours of “examinations, analysis, digital clarifications, [and] multiple telephone consultations” from June to November 2005, without any exact dates listed for this period. Id., Exhibit A, at 1. Dr. Levine’s next billing date is November 9, 2005, the day of his testimony, for which he charged 19.5 hours for his travel time and trial testimony. Id. The latter is more than double the time he claimed preparing for trial.

Dr. Levine’s invoice does not give credence to Attorney Dickey’s contention that Dr. Levine’s findings were not completed in time to assist in Ross’ defense. It strains credulity that an expert who was appointed months before trial, and who only expended 8 hours in his preparation, was unable to assist Ross’ counsel in preparing Ross’ defense in this matter, and to aid in Attorney Dickey’s cross examination of Dr. Asen, the Commonwealth’s forensic odontologist.

In fact, Dr. Asen testified he sent the materials he relied on in arriving at his findings, along with his findings, to Dr. Levine. N.T., 11/02/05, at 104. Dr. Levine confirmed that he received the foregoing materials, including dental models, photographs, overlays, and CDs, along with Dr. Asen’s preliminary hearing testimony from Attorney Krol. N.T., 11/9/05, at 258. Dr. Levine’s receipt of the same, and Attorney Dickey’s ability to learn of Dr. Levine’s expert findings, is further confirmed by Attorney Dickey’s statement at trial, claiming “My expert, who by the way is board certified, will say that [Dr. Asen’s] opinion [is] absolutely untrue.” N.T., 11/2/05, at 7.

The Majority recognizes:

A bald allegation of an insufficient amount of time to prepare will not provide a basis for reversal of the denial of a continuance motion. Commonwealth v. Ah Thank Lee [389 Pa.Super. 201], 566 A.2d 1205, 1206 (Pa.Super.1989), appeal denied, 527 Pa. 615, 590 A.2d 756 (1990). Instead,
[a]n appellant must be able to show specifically in what manner he would be unable to prepare his defense or how he would have prepared differently had he been given more time. We will not reverse a denial of a motion for continuance in the absence of prejudice. Commonwealth v. Brown [351 Pa.Super. 119], 505 A.2d 295, 298 (Pa.Super.1986).

Majority Opinion at 89-90.

The Majority further posits:

Attorney Dickey’s inability to conduct further investigation into possible defenses was also prejudicial to Ross ... Moreover, Attorney Dickey had no ability to investigate and/or prepare defenses potentially available to Ross. For example, Ross advised the police that [the *112victim] had been picked up by a bearded male in a white pickup truck, and some evidence suggested that there were unidentified tire tracks and shoe prints near the scene of the murder. See e.g., N.T., 10/31/05, at 346. Given the lack of time, however, counsel had no opportunity to attempt to develop these defenses.

Majority Opinion at 91.

My review of the record leads to a different conclusion. The record shows that in the time the trial court afforded Attorney Dickey, he was able to present various defense theories in an attempt to create reasonable doubt relative to Ross’ guilt. Specifically, Attorney Dickey was able to establish at trial that the time of death was not necessarily 5:00 a.m., but rather could extend as late as 30 minutes before the victim was found at approximately 12:20 p.m., thus providing Ross with an alibi through his father, with whom he spent the morning. N.T., 10/28/05, at 81-82; 11/09/05, at 24-32.

Attorney Dickey also produced at trial a witness, Mr. Christopher Leonard, who testified that he saw a tall white male with a thin beard and mustache the morning the victim’s body was discovered at Canoe Creek. N.T., 11/9/05, at 180-186. Mr. Leonard also saw a white pick-up truck at Canoe Creek that same day, thereby bolstering Ross’ claim that a white male fitting that description and using that same type of vehicle was in the area of the crime, and had the opportunity to be the perpetrator of Miller’s murder. Id.

Lastly, Attorney Dickey elicited extensive testimony about an unsolved but similar rape and murder committed in a nearby county, in which duct tape was used and an unconfirmed bite mark appeared on the victim’s breast. N.T., 11/9/05, at 153-158. This unsolved case involved a suspect that was acquainted with the victim in Ross’ case, thus presenting the possibility that an unapprehended local serial rapist, and not Ross, was guilty of murdering the victim. Id.

In sum, I disagree with the Majority’s conclusion that Attorney Dickey did not have sufficient time to prepare for trial, and that Ross was prejudiced by the trial court’s denial of a lengthier continuance. My review of the record supports the trial court’s determination that Ross had an experienced and prepared defense team, and that Ross was not prejudiced by the trial court’s denial of a longer continuance. See Randolph, 873 A.2d at 1281; see also Brown, 505 A.2d at 298; Commonwealth v. Boxley, 596 Pa. 620, 948 A.2d 742 (2008).

In a second issue, the Majority determined the trial court abused its discretion in admitting evidence of Ross’ prior bad acts concerning Elizabeth Berardinelli (“Berardinelli”), Laura Maloney (“Malo-ney”), and Deborah Levine (“Levine”). See Majority Opinion at 87-88.

A trial court’s determination to admit evidence may not be reversed in the absence of an abuse of discretion by the trial court. See Commonwealth v. Minerd, 562 Pa. 46, 753 A.2d 225, 229 (2000). Here, I would find that the trial court’s admission of Ross’ prior bad act evidence was admissible to show motive, intent, identity, mo-dus operandi and “signature”. See Commonwealth v. Robinson, 581 Pa. 154, 864 A.2d 460, 496 (2004); see also Commonwealth v. Elliott, 549 Pa. 132, 700 A.2d 1243 (1997); Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264 (1989); Commonwealth v. Donahue, 519 Pa. 532, 549 A.2d 121, 126 (1988); Commonwealth v. O’Brien, 836 A.2d 966, 969 (Pa.Super.2003); Commonwealth v. Luktisch, 451 Pa.Super. 500, 680 A.2d 877 (1996).

Unlike the Majority, I am not persuaded that Ross’ prior bad acts should be charac*113terized primarily as domestic disputes without probative relevance to the circumstances of the victim’s murder. See Majority Opinion at 98-99. Rather, I agree with the trial court that Ross’ attacks on Berardinelli, Maloney, and Levine reviewed in toto, show a significant pattern of sexual abuse of women, coupled with the escalated use of force and violence throughout the years, and a predilection for using foreign objects during sexual intercourse.

Moreover, the Majority disregards the trial court’s preclusion of testimony by three additional women. The trial court disallowed the testimony of these three women after reviewing the Commonwealth’s offer of proof, and balancing the relative probative value of the evidence in toto versus the prejudicial effect it could have on Ross. The trial court’s careful consideration of the evidence and limitation of what was ultimately deemed admissible, militates in favor of my determination that the prior bad act evidence was properly admitted by the trial court.

On December 8, 2004, the Commonwealth filed a motion to admit prior bad acts evidence pertaining to inter alia “physical assaults and threats against Wendy Sue Bott (“Bott”), Laura Maloney (“Maloney”), [and] Deborah Levine (“Levine”).” Commonwealth’s Motion for Admission of Bad Acts Evidence, 12/8/04, at 1.

In Exhibit A of its motion, the Commonwealth proffered evidence that Levine, Ross’ live-in-girlfriend, was assaulted by Ross five times throughout their relationship. See Id., Exhibit A, at 1. The first assault occurred after Ross became jealous of Levine’s interaction with one of Ross’ co-workers at a local pizza shop. Id. Ross’ violence towards Levine escalated over time and was “typical after Ross had been drinking.” Id. The Commonwealth noted that after initially having a normal sex life, Ross eventually “would beat [Levine] when he wanted sex”, and that Ross “wanted to use sex toys”, with the sex becoming “exceptionally more rough and that to get [Ross] away from her, she had to physically assault him”. Id., Exhibit A at 2. Further, when “Ross was engaged in sexual intercourse, he would repeatedly punch Levine in the face and that Ross tied [Levine] to the bed.” Id.

In Exhibit C, the Commonwealth stated Maloney would testify that Ross assaulted her when she was pregnant by “pushing, choking, throwing her and punching her in the face and head multiple times”, and that Ross plead guilty to Simple Assault in connection to this incident and served 3 months in jail. Id., Exhibit C, at 1.

As to Bott, the Commonwealth expected her to testify that on Christmas Eve of 2002, Ross broke into her home, “jumped on top of her and attempted to put something over her mouth” as she laid in bed. Id., Exhibit D, at 1. Ross instructed her “to roll onto her stomach at which point she rolled over out of her bed and was able to escape”, believing that “due to the nature of the attack, she was fighting for her life.” Id. Bott was Ross’ neighbor at the time. Ross “entered a nollo [sic] conten-dere plea in the case and received a period of 5 years’ probation.” Id.

With regard to Berardinelli, she testified that she lived with Ross from 1995 to 1996. N.T., 10/29/05, at 6-7. She testified that Ross during an act of consensual sex inserted a hair spray bottle into her vagina. Id. at 12. Ross subsequently pulled her hair, punched her and threw her against the wall. Id.

On July 11, 2005, the Commonwealth filed an additional motion for admission of bad acts evidence pertaining to “uncharged criminal conduct” by Ross against his for*114mer paramour Stacy Ann Stewart (“Stewart”). Commonwealth’s Motion for Admission of Bad Acts Evidence, 7/11/05, at 1. Attached to the motion was Stewart’s written interview with Trooper Aiello in which she noted she dated Ross from about February/March 1992 until a year later.

She stated:

[Ross] is pure evil. When I think of how the devil would look, I imagine that he would look like [Ross]. In the year we lived together, [Ross] beat me and raped me many, many times. He beat me almost weekly, so that would be about 50 times. And I mean serious beatings, with bad bruises and swollen eyes. He raped me 25 to 30 times. I was so afraid of him.

Id., Exhibit A, at 1.

Although Stewart denied Ross ever tying her up, she admitted that Ross “beat her during sexual intercourse” and expressed, “[a]ll of it was rough sex, but he did beat my face during intercourse sometimes.” Id. Stewart further indicated that Ross “often used foreign objects. He loved putting uncommon objects into me. Things like popsicles, lollipops, silverware and cooking utensils (like spatulas and egg turners).” Id. She confirmed that Ross became “very violent when he was high or drinking.” Id., Exhibit A, at 2.

Additionally, on August 2, 2005, the Commonwealth filed another motion seeking the admission of bad acts evidence against Ross regarding his prior girlfriend Heather Lynn Crynock (“Crynock”). See Commonwealth’s Motion for Admission of Bad Acts Evidence, 8/2/05, at 1. As part of the motion, the Commonwealth appended a police report detailing Crynock’s statement to Trooper Aiello on July 20, 2005. Id. at Exhibit A. Crynock stated that Ross repeatedly “groped” her breasts and tried to “put his hands down the front of [her] pants” while she was highly intoxicated at Ross’ father’s home on New Year’s Eve in 1999. Id., Exhibit A, at 1. She stated that as the evening progressed “he was more aggressive than before, squeezing my boobs really hard. I pushed his hands away and told him — again—to knock it off, that what he had in mind was absolutely not going to happen.” Id., Exhibit A, at 2. She ended her interview by stating “I was afraid for my safety and thought that he was going to rape me.” Id., Exhibit A, at 2.

The trial court ruled that only the prior bad act evidence relative to Berardinelli, Maloney, and Levine would be more probative than prejudicial and therefore admissible under Pa.R.C.P. 404. Trial Court Opinion and Order, 4/13/05, at 16.

The trial court determined:

This Court finds the prior bad acts evidence is more probative than prejudicial in three (3) ... instances, Berardinelli, Maloney, and Levine because: (a) of the similarities between the crimes; (b) there was a relatively short time lapse between all of the prior bad acts, with the oldest one being in 1996 and the most recent bad act initiated three (3) months before Tina Miller’s death; (c) there are no witnesses to Miller’s death; (d) the women all knew [Ross] and could identify him as the person who committed the bad acts against them (e) this Court can give limiting instructions regarding the use of the prior bad act evidence; and (f) the women will be subject to cross-examination in which the jury will be able to decide themselves how much credibility to assess each women’s story.

Id. at 16-17 (emphasis in original).

The trial court also ruled:

Bott’s testimony must be precluded regarding her assault, which was allegedly carried out by [Ross], because she can*115not identify who assaulted her in her dark bedroom. Therefore, Bott’s testimony would be more prejudicial than probative under the circumstances to [Ross].

Id. at 17.

On September 20, 2005, the trial court similarly precluded the prior bad act evidence relative to Crynoek and Stewart. As to Crynoek, the trial court reasoned that although Ross “was drinking at the time of the bad acts” and Ross “sexually assaulted Crynoek”, the “most telling difference between Crynock’s allegation and the killing of [the victim] is the level of violence alleged does not rise to the level of violence that occurred either in the Miller killing or in the other women’s allegations of prior bad acts.” Trial Court Order, 9/20/05, at 5. The trial court determined “[t]his obvious lack of violence leaves us with no other decision then [sic] to bar Crynoek from testifying in [Ross’] trial since the allegations of Crynoek do not rise to the level of connection between her incident and the killing of Miller.” Id.

As to Stewart, although the trial court deemed “the Commonwealth’s proffered evidence of Stewart meets the threshold questions of admissibility”, the trial court precluded evidence of Ross’ bad acts against Stewart because “this Court finds the prior bad acts evidence Stewart submitted is more prejudicial than probative.” Id. at 6. The trial court’s preclusion was based on the fact that “Stewart alleges the bad acts perpetrated against her occurred thirteen (13) years ago in 1992. Furthermore, no judicial determination was ever made regarding these allegations. These bad acts simply occurred too long ago and lack the probative value to outweigh the unfair prejudice against [Ross] if this bad act evidence would be permitted into evidence.” Id. at 6-7.

Given the trial court’s well-reasoned and sound approach to the admission of evidence of Ross’ prior bad acts, I disagree with the Majority’s determination that the trial court abused its discretion in admitting the testimony of Berardinelli, Malo-ney, and Levine.

My review of the record reveals that Ross was convicted after a fair trial, due to the overwhelming evidence of his guilt, which included:

[E]videnee tending to prove ...: that Ross had made statements to friends on the night of the murder that he “needed to get laid” and that they should “pull a train” (group sex) on [the victim]; that a beer bottle found at the scene, which Dr. Funke testified could have been the foreign object used to mutilate [the victim], was from a six-pack purchased earlier that night by Ross; that sneaker and boot prints at the scene matched shoes worn by Ross and [the victim]; that Ross had scrapes and scratches on his abdomen, legs, and groin that were consistent with a struggle; that the bite mark on [the victim]’s breast was consistent with Ross’ dental impressions; and that Ross had confessed to a cellmate after his arrest.

Majority Opinion at 88-89.

Accordingly, finding no abuse of discretion by the trial court based on my review of the certified record in conjunction with cited authority, I would deny Ross’ request for a new trial and affirm the judgment of sentence.

. [Paralegal Ann Shey appears to be referenced via initials on Attorney Krol's November 30, 2004 Request for Bill of Particulars, which were filed on December 2, 2004, and which Attorney Krol issued from Attorney Dickey’s office.]

. [Dr. Shaler never testified on Ross' behalf because the Commonwealth never presented DNA evidence.]

. It is questionable whether Attorney Dickey signed the October 21, 2005 and October 28, 2005 requests for continuances. His signatures in an August 29, 2006 sworn affidavit submitted by him, and in his witnessed Client Agreement regarding his appellate services in this case, appear drastically different from the "signature” appearing on the October 21, 2005 and October 28, 2005 pleadings. By contrast, the handwriting of Attorney Dickey’s notary on the above referenced affidavit is strikingly similar to the handwriting style of the "signatures” on the October 21, 2005 and October 28, 2005 pleadings. Therefore, those pleadings may not have been properly before the trial court. See Pa.R.Crim.P. 575(a) (requiring motions to be signed "by the person or attorney making the motion”); see also Pa.R.Crim.P. 575(g) (pleadings referencing matters outside of the record require verification by a "sworn affidavit” or by "the un-sworn written statement ... that the facts are verified subject to the penalties for unsworn falsification to authorities under the Crime Code § 4904, 18 Pa.C.S. § 4904”).