Com. v. Drummond, S.

J-S08023-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SYIED DRUMMOND :
:
Appellant : No. 557 MDA 2023

Appeal from the Judgment of Sentence Entered March 8, 2023
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0002433-2021

BEFORE: OLSON, J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY MURRAY, J.: FILED: MARCH 21, 2024

Syied Drummond (Appellant) appeals from the judgment of sentence

imposed following his jury convictions of aggravated assault – serious bodily

injury, aggravated assault with a deadly weapon, and recklessly endangering

another person.1 Appellant challenges the trial court’s evidentiary rulings in

granting the Commonwealth’s pre-trial motion in limine. We affirm.

Appellant’s convictions arose out of his August 2020 stabbing of Javier

Rivera (“Rivera” or “the victim”) outside of a barber shop (Rivera’s place of

employment) located in York, Pennsylvania. Rivera first met Appellant in

2018, when Appellant arrived at Rivera’s barber shop and offered to sell Rivera

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2702(a)(1), 2702(a)(4), 2705.
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DVDs. See N.T., 1/23-26/23, 243. When Rivera declined, “[Appellant] kind

of got upset”; the men “got into an argument”; Appellant “struck [Rivera] in

[his] face”; and Appellant bit Rivera’s back during the ensuing tussle.2 Id. at

244; see also id. at 248-50. Rivera did not report the 2018 altercation to

police. Id. at 251.

On August 16, 2020, Appellant approached Rivera outside of Rivera’s

barber shop. Id. at 259. According to Rivera,

[Appellant] actually walked up to me and tried to shake my hand
and said, what’s up. As soon as he … did that, like, I backed up
and I put my hands up and I was like, Yo, just leave that -- leave
it like that, yo. From denying his handshake, he punched me in
the face.

Id. (formatting modified). A struggle ensued during which Appellant withdrew

a knife from his person and stabbed Rivera. Id. at 262-66.

In June 2021, the Commonwealth charged Appellant with the above-

mentioned offenses and attempted murder.3 The Commonwealth filed a

motion in limine on June 27, 2022. The Commonwealth initially sought to

____________________________________________

2 As we discuss further below, the trial court made a pre-trial ruling on the
admissibility of this prior altercation, which we hereinafter refer to as the
“2018 altercation.”

3 18 Pa.C.S.A. §§ 901(a) and 2501.

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admit evidence of the 2018 altercation pursuant to Pa.R.E. 404(b).4 The

Commonwealth claimed (1) the 2018 altercation was relevant to shed light on

Appellant’s motive for stabbing Rivera in August 2020; and (2) the probative

value of the 2018 altercation outweighed its potential to prejudice the defense.

See Motion in Limine, 6/27/22, ¶¶ 4-26. The Commonwealth claimed a

“logical connection proving motive exists between” the 2018 altercation and

the August 2020 stabbing, “because the prior [2018 altercation] demonstrates

why [Appellant] had animosity toward [Rivera].” Id. ¶ 16. According to the

Commonwealth, “without this evidence, the Commonwealth lacks any

evidence of the motive for [Appellant’s] attempt on Mr. Rivera’s life.” Id. ¶

25.

____________________________________________

4 Rule 404(b) governs admissibility of “prior bad act” evidence, and provides,

in relevant part, as follows:

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character.

(2) Permitted Uses. This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident. In a
criminal case this evidence is admissible only if the probative value of
the evidence outweighs its potential for unfair prejudice.

Pa.R.E. 404(b)(1), (2). In addition to the grounds enumerated in
Rule 404(b)(2) that allow for the possible admission of prior bad acts
evidence, our Supreme Court has created another special circumstance,
known as the res gestae exception, where prior bad acts evidence is
admissible if the evidence is “part of the history of [the] case and formed part
of [the] natural development of facts[.]” Commonwealth v. Solano, 129
A.3d 1156, 1178 (Pa. 2015) (citation omitted).

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The motion in limine also sought exclusion of Rivera’s prior conviction

for simple assault (Rivera’s 2009 conviction), pursuant to Pa.R.E. 404(b) and

Pa.R.E. 403 (governing exclusion of certain relevant evidence). Id. ¶¶ 27-40.

The Commonwealth stated it “anticipates that the defense, in pursuing a self-

defense claim, will use [Rivera’s 2009 conviction] to prove that Mr. Rivera has

a violent character and was therefore the aggressor” in the August 2020

incident. Id. ¶ 34. According to the Commonwealth, “[b]oth the time since

[Rivera’s 2009] conviction and the dissimilarity of the conduct at issue

between the prior conviction and this case render the prior conviction at best

minimally probative.” Id. ¶ 39.

Finally, the motion in limine sought exclusion of Rivera’s mental health

history pursuant to Pa.R.E. 403. Id. ¶¶ 41-46. The Commonwealth noted

that

during the sentencing hearing on Mr. Rivera’s [2009] conviction,
Brian J. Stevens, M.D. [(Dr. Stevens)], a psychiatrist, testified
that Mr. Rivera had been diagnosed with bipolar disorder and
attention deficit hyperactivity disorder, and that Mr. Rivera had
shown symptoms of an explosive temper or overreacting.

Id. ¶ 41; see also id. Ex. B (Rivera’s sentencing transcript, at York County

Court of Common Pleas docket CP-67-CR-4065-2008, containing Dr. Stevens’

testimony). The Commonwealth claimed this evidence was not probative as

to the charges against Appellant and would cause the Commonwealth undue

prejudice. Id. ¶¶ 45-46.

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Before the commencement of Appellant’s jury trial, the trial court

addressed the Commonwealth’s motion in limine and considered argument

from the parties. See N.T., 1/23-26/23, at 5-19. Appellant’s trial counsel

initially addressed the Commonwealth’s request to introduce evidence of the

2018 altercation. Trial counsel argued the defense

run[s] the major danger of unfair prejudice with the fact that the
jury could hold [the 2018 altercation] against [Appellant] as
propensity evidence and say, well, [Appellant] fought this guy
once so he would fight him again.

Id. at 7. Trial counsel further asked the trial court not to exclude evidence of

Rivera’s 2009 conviction, arguing it was relevant to the issues at trial and that

“these incidents are actually very similar.” Id. at 13; see also id. (trial

counsel arguing Rivera’s 14-year-old conviction was not temporally stale).

The trial court excluded evidence of Rivera’s 2009 conviction and his

mental health history. Id. at 19. The court granted admission of the 2018

altercation. Id. at 12.

At trial, Appellant’s counsel vigorously cross-examined Rivera about

both the 2018 altercation and the August 2020 stabbing, as well as the nature

of the underlying dispute between Rivera and Appellant. N.T., 1/23-26/23, at

260, 294-98, 305-08. Appellant testified at trial and presented a self-defense

theory. See id. at 412-59; see also Commonwealth v. Burns, 765 A.2d

1144, 1148-49 (Pa. Super. 2000) (detailing law pertaining to self-defense).

Regarding the 2018 altercation, Appellant claimed Rivera initiated it by

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ridiculing Appellant for selling outdated DVDs.5 N.T., 1/23-26/23, at 412-13.

In describing the August 2020 incident, Appellant denied being the aggressor.

Id. at 420. Appellant testified he approached Rivera to inquire whether the

men “can [] put this behind us,” i.e., referencing the 2018 altercation. Id.

According to Appellant, Rivera responded, “Fuck off ’fore I blow your face off.”

Id. Appellant testified Rivera “threw the first punch.” Id. at 421. Appellant

admitted he withdrew a knife and stabbed Rivera, but only to protect himself

when Rivera introduced a gun into the affray and pointed it at Appellant. Id.

at 422-23.

Notably, the Commonwealth cross-examined Appellant about the 2018

altercation as follows:

Q. And so you took enough offense to that little statement that
[the victim] may have made such that you wanted to confront him
about it; is that correct?

A. No, I did not. It was not that serious. Anybody could tell that
knows me, it was no comparison. It was seriously -- like, I already
had the money. I just had to address what [the victim] did. That
was real lame, for real. Why are you worried about what I’m
doing? I’m not out here selling drugs or out here robbing
people. I got my own little business and things going on. I didn’t
work for nobody. I work for myself.

____________________________________________

5 Appellant testified he sold various items, including weapons, DVDs, clothes,

and pornography. N.T., 1/23-26/23, at 413, 419.

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Id. at 435 (emphasis added). The trial court ruled that Appellant’s remark

about not selling drugs “opened the door” to evidence of Appellant’s prior

conviction of possession with intent to deliver cocaine6 (PWID). Id. at 649.

The jury ultimately found Appellant guilty of the above-mentioned

offenses but acquitted him of attempted murder. On March 8, 2023, the trial

court sentenced Appellant to an aggregate 10 to 20 years in prison. This

timely appeal followed. Appellant and the trial court have complied with

Pa.R.A.P. 1925.

Appellant presents three issues for our consideration:

Issue One: Did the lower court abuse its discretion in admitting
[Appellant’s] prior conviction for [PWID] to impeach his trial
testimony where: A) the conviction did not contradict [Appellant’s]
testimony; B) any actual impeachment concerned a collateral
matter; and C) any probative value the conviction might have had
was outweighed by its prejudicial effect?

Issue Two: Did the lower court abuse its discretion in excluding
[] Rivera’s prior conviction for simple assault where this conviction
supported [Appellant’s] claim of self-defense and was neither so
dissimilar to Rivera’s alleged conduct nor remote in time as to lack
probative value?

Issue Three: Did the lower court abuse its discretion in excluding
evidence of Rivera’s “symptoms of an explosive temper or
overreacting” where these symptoms supported [Appellant’s]
claim of self-defense and the court barred the evidence largely
due to its own personal experiences with bipolarity as opposed to
evidence of record?

Appellant’s Brief at 4.

____________________________________________

6 35 P.S. § 780-113(a)(30).

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Appellant’s issues implicate the admissibility of evidence and the trial

court’s ruling on the Commonwealth’s motion in limine; we review such rulings

for an abuse of discretion. Commonwealth v. Mangel, 181 A.3d 1154, 1158

(Pa. Super. 2018); see also Commonwealth v. Mendez, 74 A.3d 256, 260

(Pa. Super. 2013) (stating the “standard of review for a trial court’s

evidentiary rulings is narrow” (citation omitted)).

An abuse of discretion will not be found based on a mere error of
judgment, but rather exists where the court has reached a
conclusion which overrides or misapplies the law, or where the
judgment exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will.

Commonwealth v. Harrington, 262 A.3d 639, 646 (Pa. Super. 2021)

(citation omitted); see also Commonwealth v. Hernandez, 862 A.2d 647,

650 (Pa. Super. 2004) (stating a “discretionary ruling cannot be overturned

simply because a reviewing court disagrees with the trial court’s conclusion”

(citation omitted)). “Where the evidentiary question involves a discretionary

ruling, our scope of review is plenary….” Commonwealth v. Huggins, 68

A.3d 962, 966 (Pa. Super. 2013) (citing Commonwealth v. Delbridge, 859

A.2d 1254, 1257 (Pa. 2004)).

Relevance is the threshold for admissibility of evidence. See

Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008). “Evidence is

relevant 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. Jackson, 283

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A.3d 814, 817 (Pa. Super. 2022) (citing Pa.R.E. 401 (quotation marks

omitted)). “All relevant evidence is admissible, except as otherwise provided

by law.” Pa.R.E. 402. Finally, “[e]ven when evidence is wrongfully admitted,

however, such error is subject to harmless error analysis.” Commonwealth

v. Bieber, 283 A.3d 866, 877 (Pa. Super. 2022) (citation omitted); see also

Commonwealth v. Noel, 104 A.3d 1156, 1169 (Pa. 2014) (“If a trial error

does not deprive the defendant of the fundamentals of a fair trial, his

conviction will not be reversed.” (citation omitted)).

In his first issue, Appellant claims the trial court erred in admitting his

prior PWID conviction into evidence, where it “A) [] did not contradict anything

[he] said; B) any impeachment concerned a collateral matter; and C) any

probative value was outweighed by prejudicial effect.” Appellant’s Brief at 28.

According to Appellant, “[t]o the extent [he] merely said [on cross-

examination that] he was not selling drugs as of March 2018, then, his prior

[PWID] conviction did not in fact rebut his testimony.” Id. at 31 (citation,

brackets, and quotation marks omitted); see also id. at 33 (arguing “even

though [Appellant’s] testimony touched on selling drugs, this did not open the

door to [admission of] a [prior] conviction that failed to contradict what he

actually said”). Appellant further contends, “[t]o the extent [Appellant’s] prior

conviction constituted impeachment at all, it was impeachment on a collateral

matter and thus not allowed under Pennsylvania law.” Id. at 34 (bold and

italics omitted); see also id. at 38 (claiming Appellant’s prior conviction “had

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no bearing on the charges at issue” in the instant case). Appellant claims the

trial court’s “error here was prejudicial and cannot be deemed harmless.” Id.

at 42.

The Commonwealth counters the trial court properly admitted

Appellant’s prior conviction as impeachment evidence, where his trial

testimony raised the issue of Appellant’s good character and “opened the

door” to introduction of his prior conviction. See Commonwealth Brief at 17-

26. According to the Commonwealth, Appellant’s prior conviction was not a

collateral matter, since his trial testimony “that he is not out there selling

drugs is part and parcel with his explanation as to the origin of his conflict

with the victim.” Id. at 26. Cf. Appellant’s Reply Brief at 4 (arguing to the

contrary that the Commonwealth improperly sought “to bootstrap the

relevance of [the 2018] altercation with Rivera to establish [the] relevance of

[Appellant’s] prior conviction.”). The Commonwealth further argues, “any

prejudice that may have resulted from the admission of [Appellant’s prior]

conviction was ameliorated by the trial court’s cautionary and final

instructions.” Commonwealth Brief at 22; see also N.T., 1/23-26/23, at 498,

565-66 (discussed infra).

Section 5918 of the Judicial Code provides as follows:

§ 5918. Examination of defendant as to other offenses.

No person charged with any crime and called as a witness in his
own behalf, shall be asked, or if asked, shall be required to
answer, any question tending to show that he has … been
convicted of any offense other than the one wherewith he shall

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then be charged, or tending to show that he has been of bad
character or reputation unless:

(1) he shall have at such trial, personally or by counsel, asked
questions of the witness for the prosecution with a view to
establish his own good reputation or character, or has given
evidence tending to prove his own good character or
reputation[.]

42 Pa.C.S.A. § 5918(1) (emphasis added).

“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.” Commonwealth v. Sherwood, 982 A.2d

483, 497 (Pa. 2009) (citing Pa.R.E. 404(b)(1), supra). “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.” Id. (citing Pa.R.E. 404(b)(2),

supra). “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 potential for unfair prejudice. Id.; Pa.R.E. 404(b)(2);

see also Commonwealth v. Dillon, 925 A.2d 131, 141 (Pa. 2007) (“‘Unfair

prejudice’ means a tendency to suggest a decision on an improper basis or to

divert the jury’s attention away from its duty of weighing the evidence

impartially.”) (quoting Pa.R.E. 403, Comment). “Additionally, when weighing

the potential for prejudice, a trial court may consider how a cautionary jury

instruction might ameliorate the prejudicial effect of the proffered evidence.”

Id.

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This Court has observed,

[e]vidence that might otherwise be inadmissible may be
introduced for some other purpose, particularly where
[a]ppellant’s own testimony “opens the door” for such evidence to
be used for impeachment purposes. See Pa.R.E. 607(b) (“The
credibility of a witness may be impeached by any evidence
relevant to that issue, except as otherwise provided by statute or
these rules.”). “A litigant opens the door to inadmissible evidence
by presenting proof that creates a false impression refuted by the
otherwise prohibited evidence.” Commonwealth v. Nypaver, …
69 A.3d 708, 716-17 (Pa. Super. 2013) (citations omitted).

Commonwealth v. Murphy, 182 A.3d 1002, 1005 (Pa. Super. 2018)

(footnote omitted); see also 42 Pa.C.S.A. § 5918(1), supra. However,

“Pennsylvania courts go cautiously when considering whether to admit

evidence of prior convictions for purposes of impeaching the credibility of a

defendant testifying in his own behalf.” Commonwealth v. Bullock, 286

A.3d 1282, 1285 (Pa. Super. 2022) (citation omitted).

Instantly, the trial court opined it did not abuse its discretion in

admitting Appellant’s prior conviction into evidence:

Appellant’s prior conviction for [PWID] was rightly permitted
to impeach his testimony at trial. Appellant opened the door to
such impeachment by way of his own testimony. At trial,
Appellant was asked on cross-examination about the nature of his
conflict with the victim in the case, and [Appellant] stated “Why
are you worried about what I’m doing? I’m not out here selling
drugs or out here robbing people.” N.T., 1/23-26/23, at 435. This
statement is directly contradicted by Appellant’s conviction for
[PWID], stemming from a [drug] delivery that occurred close in
time … (three months after) [to the 2018] altercation with the
victim in this case. Id. at 463. The nature of the conflict
between Appellant and [the] victim is a material matter for
which impeachment was proper, especially when Appellant
was claiming self-defense. Appellant attempted to
characterize his “business” and transactions with the

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victim’s coworkers in a certain light that made it appear as
if the victim’s reservations about Appellant were some sort
of unfounded or irrational animus—Appellant’s relatively
contemporaneous [PWID] charges and conviction suggests
the opposite is likely.

Further, the issue of Appellant’s prior [conviction] is not
unduly prejudicial. The mere fact that Appellant had sold
cocaine in the past does not, in and of itself, lead to a
conclusion that Appellant is a violent person or was
necessarily the aggressor in his [August 2020] altercation
with the victim. Plenty of people who sell cocaine have never
stabbed anybody. Further, it is not significantly more prejudicial
than Appellant’s own admissions at trial that he was selling
pornographic DVDs and weapons from the trunk of his car.7 If
anything, being a seller of weapons seems more likely to indicate
Appellant’s propensity for violence than his selling of cocaine. In
fact, at trial, photographs of such weapons were shown to the
jury, and these weapons matched the weapon used against the
victim in this case.

Trial Court Opinion, 7/11/23, at 2-3 (emphasis added; footnote in original,

remaining footnotes omitted). Our review discloses the trial court’s reasoning

is supported by the record and the law. See id.

Further, This Court’s decision in Hernandez, supra, is closely on point.8

There, the defendant took the stand at his jury trial on two counts of PWID,

____________________________________________

7 At trial, photographic evidence was offered of certain items that Appellant

sold out of the trunk of his car. In addressing this, Appellant stated “I sell
them things and a lot more. The[ photographs] only show, like, weapons and
stuff of that nature. Like, that’s not the — that’s just one grain of sand on the
beach of what I sell.” N.T.[, 1/]23-26[/]2023, at 419. Appellant further
stated[,] “I have no problem with selling anything.” Id. at 420.

8 We are unpersuaded by Appellant’s attempt to distinguish Hernandez. See
Appellant’s Brief at 37-38.

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and testified to “his twenty-year addiction to heroin.” Id. at 648. The

following exchange occurred on cross-examination of the defendant:

Q [The prosecutor]: Now, do any drug [users] [] sell [drugs] to
support their habits?

A [The defendant]: Almost all the addicts, what they do is they
steal in stores, they steal cars, they do anything to maintain their
habit.

Q: Including selling some drugs and using some, correct?

A: Since I’ve been a junkie, I don’t sell drugs. I’m an addict.

Q: You’ve been a junkie for 20 years?

A: Yes.

Id. (emphasis added; citation omitted). The prosecutor then requested a

sidebar and sought to introduce the defendant’s two prior convictions for

PWID, arguing his foregoing testimony about not selling drugs “opened the

door” to introduction of the evidence. Id. The trial court agreed and admitted

the prior convictions. Id. at 649. On appeal, the defendant challenged the

evidentiary ruling and this Court affirmed, holding as follows:

[The defendant’s] own unsolicited testimony that he had never
sold drugs constituted an assertion of good character that the
prosecutor was entitled to contradict by reference to
countervailing evidence of prior convictions.

Id. at 648; see also id. at 651 (“When a defendant makes an unsolicited

attestation of his good character, 42 Pa.C.S. § 5918 clearly permits the

prosecution to question the attesting defendant about prior convictions that

directly contradict his assertion.”).

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Moreover, in the instant case, immediately after introduction of

Appellant’s prior conviction at trial, the trial court issued the following

cautionary jury instruction:

Let me make it very clear to you, the fact that [Appellant] []
had pled guilty to a drug offense in no way suggests that
he is guilty of this offense. It was intended to be []
testified to on the sole issue of impeachment.

During the testimony of [Appellant], it’s alleged that he
made a statement that it’s not like I’m out here selling drugs. And
because of that I’ve allowed the Commonwealth to bring in a
witness to show in fact that wasn’t a true statement when
[Appellant] made it on the witness stand.

That doesn’t mean that you can decide, hey, this guy sold
drugs, he must be guilty of attempted murder, he must be guilty
of aggravated assault or the other charge. There’s no particular
relationship to that, so it’s not like people that sell drugs also are
people that go out and stab people or try to kill them or endanger
their lives. It’s only to decide is he credible. And you can either
accept that he’s credible or accept that he’s not credible and factor
that in as to whether or not you believe his version of events that
he testified to in this case, okay?

N.T., 1/23-26/23, at 498 (emphasis added).

Subsequently, during jury instructions, the trial court cautioned as

follows:

Again, you’ve also heard testimony that [Appellant] was convicted
of the crime of [PWID]. The only purpose for which you can
consider this evidence of a prior conviction is that in
deciding whether or not to believe all or part of
[Appellant’s] testimony. In doing so, you may consider the
type of crime committed, how long ago it was, and how it may
affect the likelihood that [Appellant] has testified truthfully in this
case.

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Id. at 565-66 (emphasis added).9

We conclude the trial court’s cautionary instructions were sufficient to

ameliorate any undue prejudice to Appellant. Dillon, 925 A.2d at 141. It is

well settled the “law presumes that a jury will follow the trial court’s

instruction.” Commonwealth v. Gilliam, 249 A.3d 257, 274 (Pa. Super.

2021) (citation omitted). Based on the foregoing, there is no merit to

Appellant’s first issue challenging admission of Appellant’s prior conviction.

See Hernandez, supra.

In his second issue, Appellant argues the trial court abused its discretion

in excluding Rivera’s 2009 conviction, where this evidence “supported

[Appellant’s] claim of self-defense and was neither so dissimilar to Rivera’s

____________________________________________

9 The trial court additionally cautioned the jury,

[t]here was testimony that tended to prove that [Appellant] was
involved in some other conduct -- improper conduct for which he
is not on trial, and I’m talking about the events that occurred
roughly two years earlier[, i.e., the 2018 altercation,] when there
was an assaultive behavior involving [Appellant] and [Rivera]….
This evidence can only be used for one purpose only, and that was
the Commonwealth has alleged that this tends to show … the
motive, all the circumstances surrounding the case and a
background as to why this event and issue may have occurred,
but that’s the only purpose you can use it for. Again, you can’t
infer from that, that [Appellant is] [] aggressive or abusive or []
pugilistic or whatever. Simply that there’s a past, this past relates
to this present, and that’s the only circumstance under which you
can use it.

N.T., 1/23-26/23, at 565.

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alleged conduct nor remote in time as to lack probative value.” Appellant’s

Brief at 45 (bold omitted). According to Appellant, “[w]ith regard to similarity,

Rivera’s [2009] conviction was for simple assault and predicated on his

punching a police officer in the head as the officer attempted to arrest his

friend.” Id. at 47; see also Appellant’s Reply Brief at 14 (arguing any

differences between the altercation underlying Rivera’s 2009 conviction and

the August 2020 stabbing were “superficial”). With respect to temporal

proximity, Appellant concedes that “the time between the incidents at issue

here is significant.” Appellant’s Brief at 48. Nevertheless, Appellant argues

that

the lag here is not so substantial as to warrant complete exclusion
of this important evidence where nobody ever articulated any
reason why a tendency to react with violence would diminish over
time.

Id. at 48-49; see also id. at 45 (claiming, “other evidence suggested [that

Rivera’s violent] tendencies remained due to [Rivera’s] chronic, incurable

mental health issues.”).

The Commonwealth counters that the trial court properly excluded

Rivera’s 2009 conviction, where (1) it “is too remote in time as it occurred

over a decade before the instant offense”; and (2) “[Rivera’s 2009] conviction

and the instant offense are radically different and bear no similarity.”

Commonwealth Brief at 27.

Our Supreme Court has stated,

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when a defendant asserts a claim of self-defense[, e]vidence of
the victim’s prior convictions involving aggression may be
admitted, if probative, … as character/propensity evidence, as
indirect evidence that the victim was in fact the aggressor.

Commonwealth v. Christine, 125 A.3d 394, 398 (Pa. 2015) (citation

omitted). “[O]nly those past crimes of the victim that are similar in nature

and not too distant in time will be deemed probative, with the determination

as to similar nature and remoteness resting within the sound discretion of the

trial judge.” Commonwealth v. Mouzon, 53 A.3d 738, 741 (Pa. 2012)

(citation and footnote omitted). Our Courts have stressed that temporal

proximity and similarity of facts are key; where “strikingly disparate factual

scenario[s]” exist or the prior crime is too remote, the trial court may properly

exclude a victim’s prior convictions. Christine, 125 A.3d at 399 (footnote

omitted).

Instantly, the trial court held that it properly excluded evidence of

Rivera’s 2009 conviction, where it

resulted from [Rivera’s] punching a police officer while being
arrested and was over a decade old at the time of the incident
that led to the instant case (namely, [Rivera’s 2009] conviction
was a result of conduct he undertook in 2008, and the incident
which led to the instant case occurred in 2020). Therefore, it was
proper to exclude such evidence as it was neither similar in
nature to the victim’s alleged conduct in the instant case,
nor was it recent. Accordingly, it would have been improper to
allow … Appellant to bring evidence of such prior misconduct in
order to show that [Rivera] acted in accordance with it. Further,
Appellant did not seek to introduce such evidence based on his
knowledge of same (such as to show his belief that he needed to
act in self-defense was reasonable), but rather only as conformity
evidence—on this basis[, Rivera’s 2009 conviction] was rightly

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excluded.

Trial Court Opinion, 7/11/23, at 4-5 (bold emphasis added; italics in original;

footnote omitted).

Our review discloses that the trial court’s foregoing reasoning is

supported by the record and the law. See id. We conclude the trial court did

not abuse its discretion in excluding Rivera’s 2009 conviction, where such

evidence was too stale and factually dissimilar to be admitted under Christine

and Mouzon. See, e.g., Commonwealth v. Gilliard, 446 A.2d 951, 956

(Pa. 1982) (upholding trial court’s exclusion of murder victim’s prior

convictions of violent crimes, where they predated the crime at bar by more

than 20 years). Cf. Commonwealth v. Beck, 402 A.2d 1371, 1373 (Pa.

1979), overruled in part by Christine, 125 A.3d at 400 (holding trial court

erred in excluding evidence of stabbing victim’s three-year-old conviction for

violent crime, where it was not too remote and bore sufficient similarity to the

charges at bar). Appellant’s second issue does not merit relief.

In his third and final issue, Appellant claims the trial court abused its

discretion in granting the Commonwealth’s motion in limine to exclude

evidence related to Rivera’s mental health, including “symptoms of an

explosive temper or overreacting.” Appellant’s Brief at 52; see also

Appellant’s Reply Brief at 19 (arguing the trial court should have permitted

the defense “to present evidence of Rivera’s symptoms through Dr. Stevens’

testimony.”).

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Prior to the commencement of trial, Appellant’s counsel addressed the

matter of Rivera’s mental health as follows:

[Defense counsel]: … [W]ithin [Rivera’s] medical records that
were provided in discovery, [his diagnoses of] bipolar [disorder]
and [attention deficit/hyperactivity disorder (ADHD)] are listed,
and … it is listed as … an ongoing problem, that’s something he
still experiences.

And so I would submit that that -- What’s in the medical
record, as well as what was put on record at the prior case[, the
trial court] would at least allow me to ask [Rivera] questions about
how these -- I won’t even ask what the diagnoses are. I would
ask, do you have conditions that make you prone to violence or
prone to outbursts? And if [Rivera] says no, I may not be able to
impeach him, but I think there’s enough evidence there for me to
at least ask those questions of him.

THE COURT: I had [the] not too great joy of having been married
to a woman who had bipolar disorder, and there were times she
went for years and years with good ordinary behavior and then
she would become manic.

So the question is whether or not [Rivera] was in a manic
state during that period of time. If he was in a depressive state,
that’s not the kind of conduct that is indica[tive] of [a] depressive
state -- punching, stabbing, whatever. So if we have no indication
that [Rivera] was experiencing at that time some sort of a manic
[episode], I don’t see that you can get [Rivera’s 2009 conviction]
in. It’s not very relevant in terms of time. Show me that [Rivera]
was acting crazy at that time. And I apologize for the use of that
word; I just am used to it.

[Defense counsel]: Again, Your Honor, the reason I can’t obtain
[Rivera’s] medical history, the law does not allow me to do that.

THE COURT: Nor do I.

N.T., 1/23-26/23, at 14-15. The trial court excluded evidence of Rivera’s

mental health, stating, “I’m not going to let [the defense] cross-examine

[Rivera] on a diagnosis which is unsupported, there’s no indication whatsoever

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as to what if any manifestations there were of this diagnosis and how that

relates to this event.” Id. at 19.

On appeal, Appellant argues the trial court “improperly relied on its own

personal experience” with bipolar disorder in ruling on this matter. Appellant’s

Brief at 54-55 (bold and italics omitted) (citing Ney v. Ney, 917 A.2d 863,

866 (Pa. Super. 2007) (“A trial court may not consider evidence outside of the

record in making its determination. Nor may this court uphold a trial court’s

order on the basis of off-the-record fact.” (citations and quotation marks

omitted)). Further, Appellant contends that “[i]mproper reliance on personal

experiences aside, the court provided no valid reason to exclude this relevant

evidence.” Id. at 56 (bold and italics omitted); see also id. at 58 (asserting

evidence of Rivera’s mental health “increased the likelihood that [Rivera] was

the aggressor in this case.”).

The Commonwealth counters the trial court properly precluded evidence

related to Rivera’s mental health, where any defense questioning about this

matter would constitute an improper “fishing expedition.” See

Commonwealth Brief at 32-38. The Commonwealth argues that

[t]he only information concerning the victim’s diagnosis comes
from a sentencing transcript from over a decade prior. That
sentencing transcript[] does not, and cannot, reflect how the
diagnoses have affected the victim currently, what symptoms if
any the victim has, and whether the victim was experiencing those
symptoms around the time period of the stabbing. The trial
court’s reference to its prior spouse was not a basis for its
decision. It was, at best, a segue into asking the very relevant
question of what indication was present that the victim was

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experiencing those symptoms [at the time of the August 2020
altercation].

Id. at 36 (formatting modified). We agree.

As the trial court cogently opined,

the evidence Appellant sought to admit on the issue [of Rivera’s
mental health] would have been misleading and prejudicial.
Appellant sought to bring in testimony from a 2009 proceeding
against the victim in which Dr. … Stevens, a psychiatrist, testified
that the victim had been diagnosed with bipolar disorder and
[ADHD] and that the victim had shown signs of having an
explosive temper and was prone to overreacting.” Dr. Stevens
was dead at the time of the trial, and would not have been
able to testify, maximizing the prejudicial and misleading
effect of utilizing a decade (plus) old diagnosis of the
victim. Just as was the case with [Rivera’s 2009] conviction, this
was too distant in time to be probative in the instant case. It was
proper to exclude such evidence as unduly prejudicial under Rule
of Evidence 403.

Trial Court Opinion, 7/11/23, at 5 (emphasis added; footnotes omitted).

The trial court’s reasoning is again supported by the law and the record.

See id. We conclude the trial court did not abuse its discretion in excluding

evidence of Rivera’s mental health. See, e.g., Commonwealth v. Glass, 50

A.3d 720, 726 (Pa. Super. 2012) (upholding trial court’s exclusion of evidence

related to rape victim’s mental health, where the defendant failed to establish

a sufficient evidentiary foundation and the victim’s “perception and

recollection were not really at issue at trial.” (citation omitted)).

Based on the foregoing, as we discern no abuse of the trial court’s

discretion in its evidentiary rulings, we affirm Appellant’s judgment of

sentence.

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Judgment of sentence affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.
Prothonotary

Date: 3/21/2024

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