[J-81-2016]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 718 CAP
:
Appellee : Appeal from the Judgment of Sentence
: entered on 1/6/2015 in the Court of
: Common Pleas, Monroe County,
v. : Criminal Division at No. CP-45-CR-
: 0000391-2008
:
CHARLES RAY HICKS, : ARGUED: September 13, 2016
:
Appellant :
Justice Dougherty delivers the Opinion of the Court with respect to Parts I,
II and IV and announces the judgment of the Court. Justices Todd and
Mundy join the opinion in full. Chief Justice Saylor joins in Parts I, II and
IV and in the judgment and files a concurring opinion. Justice Baer also
files a concurrence. Justices Donohue and Wecht file dissenting opinions,
and Justice Wecht joins the merits portion of Justice Donohue’s dissent.
OPINION
JUSTICE DOUGHERTY DECIDED: March 28, 2017
Appellant Charles Ray Hicks appeals from the sentence of death imposed by the
Monroe County Court of Common Pleas after a jury convicted him of first-degree
murder, tampering with evidence, and abuse of corpse.1 For the following reasons, we
affirm the judgment of sentence.
I. Background
On January 29, 2008, Corporal Jody Radziewicz, a member of the forensic
services unit of the Pennsylvania State Police, was called to process several crime
1
18 Pa.C.S §2502(a), 18 Pa.C.S §4910(1), and 18 Pa.C.S §5510, respectively.
scenes where body parts were discovered on stretches of Route 380 and Route 80 in
Monroe and Lackawanna Counties. N.T. 11/5/14 at 91. At these various locations,
troopers recovered numerous black garbage bags with blue handle ties containing the
body parts of a woman, except for her hands. Id. at 91-93. Surprising to Corporal
Radziewicz was the fact that most of the body parts were relatively cleanly severed,
probably with a knife or saw, and free from blood. Id. at 102, 121. However, there was
blood and a jagged cut in the shoulder area where the neck and head were severed
from the rest of the body. Id. at 157. The victim’s head was found on the on-ramp to
Route 380 from Route 423 in Tobyhanna, Monroe County, about 200 yards from
appellant’s house. Id. at 83, 163.
Dr. Saralee Funk performed an autopsy at the Monroe County Coroner’s Office,
and a rape kit was also prepared; hairs, footprints, and other DNA evidence were taken
from the victim. Id. at 198-201. The victim was eventually identified as Deanna Null
after dental records were compared and determined to be a match. Id. at 206. Dr.
Funk’s autopsy report stated there were ambiguities around the timing of the injuries,
and pre-death trauma could not be ruled out until additional testing was completed.
N.T. 11/6/14 at 141-42. Shortly after the autopsy and before additional testing, Dr. Funk
suffered a serious health crisis which led to her retirement. N.T. 11/5/14 at 206-07.
The autopsy report was later reviewed and additional testing was completed by
Dr. Wayne Ross, a forensic pathologist working in multiple counties in Pennsylvania.
N.T. 11/6/14 at 20. After observing marks and swelling on the victim’s face, Dr. Ross
concluded this was due to blunt force trauma from being hit in the face with a hand or
fist at least six times while she was still alive. Id. at 28-33. Dr. Ross also found pre-
death injuries, including lacerations, on the back of the victim’s head which he
determined were consistent with being struck with a crowbar or a pipe. Id. at 34-38. Dr.
[J-81-2016] - 2
Ross concluded the victim suffered at least seventeen different impacts to her face and
head area while she was still alive as there was swelling and hemorrhaging which would
not have occurred had the victim been deceased prior to the trauma. Id. at 44. Further
pre-death injuries were found to the victim’s torso, including all twelve ribs being
fractured multiple times. Id. at 51. Dr. Ross concluded these injuries resulted from
being stomped with a boot or shoe. Id. at 54. Dr. Ross also found evidence the victim
was strangled while alive based on the red-purple appearance of her face and
hemorrhaging in the throat area. Id. at 61-64. Using a process called “blood staining,”
and based on blood and blood clotting around the neck tissue, Dr. Ross concluded the
victim was alive when her neck and head were severed from her torso. Id. at 75-90.
Dr. Ross ultimately concluded the victim’s cause of death was a combination of
strangulation and sharp force injury to her neck. Id. at 90.2
Anthony Bullock was interviewed by police and stated the victim had brought
appellant to his home in the Scranton area on or about January 25, 2008. Id. at 221.
After staying for a few hours, appellant and the victim left Mr. Bullock’s home. Id. This
was the last time Mr. Bullock saw the victim and stated she seemed nervous and
withdrawn during the visit, which was not like her normally outgoing demeanor. Id. at
224. Mr. Bullock stated appellant returned a few hours later looking for crack cocaine
without the victim. Id. at 222.
Joseph McCallister was also interviewed and told police he had introduced the
victim to a man who was looking for prostitutes and drugs in the Scranton area in
2
Justice Donohue, in dissent, notes there was conflicting expert testimony regarding
the manner of the victim’s death and whether her neck injuries were pre- or post-
mortem. Dissenting Opinion, Donohue J., slip op. at 22, n.11.
[J-81-2016] - 3
January of 2008. Id. at 173-76. McCallister gave the police a description of the man
and his vehicle and also told police the man stated he worked in Tobyhanna. Id. at 178.
On February 7, 2008, Trooper Kent Lane was on surveillance looking for a dark
colored sedan with a vinyl roof as described by McCallister. Id. at 148. While traveling
on Route 423, near the intersection of Route 380, Trooper Lane observed a dark blue
Mercury Grand Marquis parked at 131 Prospect Street, appellant’s residence. Id. at
149. After searching the license plate number, Trooper Lane determined the owner of
the vehicle was a “Charles R. Hicks,” but the investigation regarding appellant was
placed on hold while other leads were followed. N.T. 11/10/14 at 120. However, on
March 4, 2008, Trooper Shawn Hilbert received information about the same vehicle
being present at appellant’s residence. N.T. 11/6/14 at 153. After further confirming
Charles Hicks of Burleson, Texas was the owner of the vehicle, Trooper Hilbert called
the Texas Intelligence Department which provided driver’s license photographs for two
men named Charles Hicks, father and son, who resided at the same address in
Burleson. Id. at 156-57.
Police secured a search warrant for the vehicle and approached appellant in a
parking lot after following his vehicle. N.T. 11/10/14 at 126. Appellant agreed to go to
the police barracks for an interview. Id. During the interview, appellant acknowledged
he knew the victim as a prostitute from Scranton and had been with her on one or two
occasions in the beginning of January 2008. Id. at 132. Appellant also stated he was
addicted to crack cocaine and had some problems with alcohol. Id. at 133. However,
appellant denied ever becoming violent with the victim. Id. at 146. During the search of
the vehicle, police recovered a blood-stained pair of boots from the trunk. Id. at 21-23,
63-64. There were also traces of blood present in the front passenger seat. Id. at 24.
When asked about the blood on the boots, appellant stated he did not know how it got
[J-81-2016] - 4
there. Id. at 156. Appellant was then informed a search warrant had been secured for
his home. Id. at 157.
Trooper Matthew Johnstone, a New York State Police dog handler, was called in
to assist the Pennsylvania State Police in their search of appellant’s residence and
vehicle for human remains. N.T. 11/7/14 at 18-19. After there was no alert to such
remains in the vehicle or the exterior of appellant’s property, Trooper Johnstone moved
inside the house. Id. at 19. The K9 alerted to a briefcase in the living room area and
the floor in one corner of the basement. Id. at 20-21. The briefcase contained a very
detailed handwritten map of the Scranton area. N.T. 11/10/14 at 172-73. Collected
from the basement was a Sawzall reciprocating saw blade and medium length brown
hairs. N.T. 11/7/14 at 196. Medium length hairs and skin particles were also recovered
from various items, including a scrub brush, found inside a tool bag recovered from
another part of the house. N.T. 11/10/14 at 43-52. The DNA profile taken from the
hairs on the scrub brush were determined to match the DNA profile of the victim. Id. at
89. Five unused black garbage bags with blue draw strings, which were identical to the
bags containing the victim’s body parts, were found in the attic of the house. N.T.
11/7/14 at 143. Fingerprints found on the garbage bags from the attic matched those of
appellant. N.T. 11/10/14 at 36. The search of the home also produced a pair of human
hands wrapped in socks, newspaper pages dated February 4, 2008, and Ziplock bags;
the hands were found inside a large access panel for the bathroom plumbing. N.T.
11/7/14 at 162-168. Socks found in appellant’s bedroom and unused Ziplock bags
found in the kitchen were exact matches with those used to wrap the hands. Id. at 185-
189. The fingerprints from the recovered hands matched those of the victim. N.T.
11/10/14 at 37. Appellant was taken into custody and charged with the murder of
Deanna Null. Id. at 161.
[J-81-2016] - 5
Prior to trial, the Commonwealth filed a notice pursuant to Pennsylvania Rule of
Evidence 404(b)(3) informing appellant of its intention to introduce evidence of prior bad
acts through the testimony of eight women with whom appellant had a sexual and/or
prostitution-type relationship, which also involved the use of illegal narcotics such as
crack cocaine. Commonwealth’s Pa.R.E. 404(b) Notice, 3/26/10 at 1.3 The
Commonwealth sought to introduce the evidence in order to buttress circumstantial
evidence in the case by showing motive, identity and intent, as well as to rebut any
defense based on accidental death. Id. at 1-2. The proposed witnesses — identified as
Cheryl Denise Phillips, Lakessia Roshe Mayfield, Suzanne Downing, Lakisha
Muhammad a/k/a Lakisha Washington, Karen Lovell, Misty Kay Chavez, Sheinina
Hicks, and Kim Alston — would testify to appellant’s alleged assaults on them which
included beating, choking, and threats with edged weapons. Id. The Commonwealth
posited the proposed testimony would demonstrate a common scheme on the part of
appellant to victimize prostitutes, or women engaging in prostitution to satisfy their
addictions to controlled substances, such as the victim in the present case. Id. at 1-2.
Appellant filed a motion to exclude Rule 404(b) testimony and, in response, the
trial court ordered the Commonwealth to file an offer of proof for each witness. The
Commonwealth filed offers of proof for seven of the eight witnesses,4 alleging their
3
Rule 404(b)(1) provides “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.” Pa.R.E. 404(b)(1). However, subsection (2) of
the rule provides such 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)(2).
4
The Commonwealth did not provide an offer of proof with respect to Lakessia Roshe
Mayfield.
[J-81-2016] - 6
experiences with appellant bore striking similarities to the victim’s murder for the
following reasons: all were women who had engaged in prostitution and drug use with
appellant, who had admitted to having sex and using drugs with the victim; the
witnesses were assaulted primarily by being beaten or choked with appellant’s hands,
and the blunt force trauma suffered by the victim was consistent with this type of
assault; several of the witnesses were threatened with edged weapons, and the victim
suffered numerous injuries by edged weapons; disputes arising out of a sexual
encounter appeared to be the motive for many of the assaults, and appellant admitted
having a sexual relationship with the victim. Commonwealth’s Pa.R.E. 404(b) Offers of
Proof, 4/27/11 at 6. The Commonwealth also argued the probative value of the
evidence outweighed any unfairly prejudicial effect as its case against appellant was
based primarily on circumstantial evidence. Id. at 7.
After subsequent briefing by the parties, the trial court determined the testimony
of Alston, Lovell and Chavez was admissible pursuant to Rule 404(b), while the
testimony of Phillips, Washington, Hicks and Downing was inadmissible as cumulative,
and its prejudicial effect would outweigh its probative value. Tr. Ct. Opinion, 7/14/11 at
15. The Commonwealth filed an interlocutory appeal and appellant cross-appealed.
The trial court’s ruling was affirmed by the Superior Court, and the Commonwealth
petitioned this Court for allowance of appeal. This Court accepted review and ultimately
reversed the Superior Court’s decision, remanding to the trial court for further
proceedings regarding the admissibility of testimony from the excluded witnesses
Phillips, Washington, Hicks and Downing. Commonwealth v. Hicks, 91 A.3d 47 (Pa.
2014). The Court held the trial court should have deferred balancing probative value
against prejudicial effect until trial, and stated, “the [trial] court erred in ruling which
[J-81-2016] - 7
witnesses would be the cumulative ones, restricting which ones the prosecution might
call.” Id. at 55.
On remand, the trial court held the testimony of Phillips, Washington and Hicks
was admissible, while again ruling the testimony of Downing was inadmissible. The
Commonwealth ultimately presented the testimony of Alston, Chavez and Washington
at trial. Twice during trial and with significant detail while charging the jury at the close
of the guilt phase, the trial court instructed the jury the witnesses’ testimony was not
offered to show appellant’s bad character, but for the “very limited purpose” of proving
intent, motive, common plan or scheme and lack of accident. N.T. 11/7/14 at 59-60, 88;
N.T. 11/14/14 at 110-12.5
5
Specifically, while charging the jury after the guilt phase, the trial court stated:
Allowed into evidence was certain testimony regarding alleged instances between Mr.
Hicks and other women occurring prior to these alleged offenses and the offense for
which he is on trial currently. The testimony I’m referring to was from Ms. Alston, Ms.
Kim Alston, Ms. Lakisha Washington, and Ms. Misty Chavez. That evidence is before
you for a very limited purpose, and that is to prove an absence of accident or mistake
on this occasion and as evidence of intent, motive, and ill will towards the victim in this
case, Deanna Null. Evidence of prior bad acts, while generally not admissible to prove
bad character or criminal propensity, is admissible for other purposes including showing
an absence of accident. Evidence of other crimes, wrongs, or acts may be admissible
to prove motive, intent, and absence of accident. In other words, if it is believed by you,
the evidence concerning circumstances of these other instances may only be used to
infer that Ms. Null’s death was not accidental. Also, if you choose to consider, you may
consider the evidence when finding what the state of mind was during the course of
events involving the victim in this case. That’s the intent part. Intent is a mental state
that can be inferred from conduct. Evidence of prior occurrences and prior offenses, if
they are related to the offense for which the Defendant is on trial, may be admitted to
show intent. So it’s a very narrow and limited purpose for which that evidence is
admitted. This evidence may not be considered by you in any other way other than for
the purposes I just stated. You must not regard this evidence as showing that the
Defendant is a person of bad character or criminal propensity from which you might
infer guilt in this case.
N.T. 11/14/14 at 10-12. In addition, during trial, the court instructed the jury as follows:
(continued…)
[J-81-2016] - 8
Alston, a recovering drug addict, testified she was living in Virginia in 2006 when
she relapsed on marijuana and cocaine. N.T. 11/6/14 at 186-87. During her relapse,
she was brought to appellant’s home by a woman named Yvette. Id. at 187. Alston
provided appellant with approximately $200 worth of crack cocaine. Id. at 192. After
Yvette departed, appellant and Alston argued over money for the drugs. Id. As Alston
observed appellant become very angry, she ended the argument and attempted to
leave the house. Id. at 192-93. Appellant displayed a gun and verbally threatened to
kill Alston, while Alston again attempted to leave and refused to give appellant more
(…continued)
So the evidence that comes in from both Ms. Washington and Ms. Alston -- the
evidence that you heard yesterday and that you may hear today is being offered for a
particular purpose, and you could only consider it for a particular purpose, and it’s very
limited, and that would be because it is evidence which if believed by you -- again,
you’re judging credibility like you would any other witness -- but if believed by you would
show that certain things happened unrelated to this case but at some earlier point in
time. And it’s offered only and can be used only to prove an absence of accident or
mistake on this occasion in this case and as evidence of Mr. Hicks’ intent and motive,
okay.
In other words, if the evidence is believed by you, the evidence concerning the
circumstances of these other incidents on prior occasions may only be used to infer that
Ms. Null’s death was not accidental, not that it was committed by Mr. Hicks. As well as
that, you can consider this evidence with respect to intent.
So, that is, what was the state of mind during the course of events involving the victim in
this case, Ms. Null? It can’t be considered by you in any other way. And, that is, you
may not and must not use this evidence to infer that Mr. Hicks is a person of bad
character or criminal propensity from which you might infer guilt.
N.T. 11/7/14 at 59-60. And, later, the court further stated:
Again, this is the same caution to the jurors and the same instruction I gave you as to
Ms. Alston and Ms. Washington, that this witness’ testimony, if believed by you, is
offered not to show and may not be regarded as evidence of Mr. Hick’s bad character or
criminal tendencies but solely to prove motive, common plan or scheme, lack of
accident, and as to this particular witness identity of the perpetrator of this particular
crime that we’re here in trial for, okay.
Id. at 88.
[J-81-2016] - 9
drugs. Id. at 193, 195. Appellant then grabbed Alston by the throat and choked her
until she was unconscious. Id. at 196. When Alston regained consciousness, appellant
was sitting on top of her, both of them were naked, and appellant had a knife to her
throat while attempting to penetrate her sexually. Id. at 196, 199. When appellant
allowed Alston to leave the house, he refused to give her her clothes; Alston ran out of
the house naked, a neighbor gave her clothes, and she called the police. Id. at 198.
Charges filed against appellant were eventually dismissed when Alston failed to appear
for court. Id. at 207. Alston testified this was the first and last time she ever saw
appellant, and she has been in recovery from drug use ever since. Id. at 200.
Washington testified she was living in Fort Worth, Texas in 2003 when she first
used crack cocaine. N.T. 11/7/14 at 62. At this time, Washington was a prostitute and
would offer sex for drugs or money. Id. at 81. One evening, Washington went to a
known drug area and entered a car with a man named Ronnie Hogan. Id. Washington
and Hogan went to the Relax Inn and partied all night with appellant. Id. The next
morning appellant and Hogan left the hotel to get Hogan’s car fixed. Id. at 62-63.
Appellant then returned to the hotel without Hogan and agreed to take Washington to
get heroin. Id. at 64. Washington testified that, after using the heroin, she was in and
out of consciousness all day, until she woke up in appellant’s truck parked on a dark
property. Id. at 63-65. As Washington and appellant smoked crack in the truck,
appellant asked her to touch her vagina. Id. at 66. Washington stated she complied
with the request because “it’s like an unwritten rule that if you give me the drugs . . . I
give you the sex.” Id. When appellant began driving back to the highway, the two
argued about directions. Id. at 67. As Washington attempted to exit the vehicle,
appellant angrily grabbed her by the neck and pulled her back inside. Id. Appellant
calmed down and allowed Washington to drive back to the Relax Inn, but then told her if
[J-81-2016] - 10
she left the vehicle he would kill her. Id. at 68. Notwithstanding appellant’s threat,
Washington left the vehicle and attracted the attention of the hotel manager, who called
police. Id. Washington testified this was the only time she ever saw appellant. Id. at
69.
Chavez testified she was living in Arlington, Texas in the 2002-2003 time period
when she met appellant. Id. at 90. Chavez was unemployed and supporting her
cocaine addiction through prostitution. Id. at 92. Chavez testified she was introduced to
appellant by her girlfriend and used drugs with him a couple times a week, but their
encounters did not always involve sex. Id. at 92-93. After several months of this
relationship, appellant and Chavez had an argument while driving on Highway 360
about where she was buying drugs. Id. at 93. Chavez said to appellant, “I’m not the
bitch that you can control.” Id. Appellant became angry and reached over the center
console, choking Chavez until she felt she would black out, cutting her skin with his
fingernails in the process. Id. at 94, 97. Chavez opened the vehicle door to escape, but
closed it after appellant told her to “Shut the door, or I’ll kill you.” Id. Appellant exited
the highway, pulled the car over and said he was sorry; the two returned to his
apartment. Id. at 95-96. When Chavez attempted to leave the apartment in her own
vehicle, appellant pleaded with her to stay and let him clean the blood off her neck. Id.
at 97-98. Appellant said, “Misty, I’m sick. I’ve done this before. That’s why I can’t keep
relationships. Something’s wrong with me.” Id. at 98. Chavez stopped seeing
appellant after this incident. Id. at 100. Finally, Chavez testified she received a call
from appellant about a year later during which he said “I hurt her. Misty, I hurt her.” Id.
at 101. Chavez stated she could hear a female screaming in the background during the
phone call. Id.
[J-81-2016] - 11
Appellant presented the testimony of Dr. John J. Shane, who had extensive
experience in forensic pathology but was not board certified. N.T. 11/12/14 at 11. Dr.
Shane testified he reviewed Dr. Funke’s autopsy report and concluded the victim’s
bruising and lacerations occurred after her death. Id. at 15-33. Dr. Shane also
concluded the victim’s cause of death was most likely related to substance abuse and
accidental. Id. at 37. At the conclusion of the guilt phase, the jury convicted appellant
of first-degree murder, tampering with evidence, and abuse of corpse.
The Commonwealth moved to introduce all guilt phase evidence into the record
for the penalty phase, and the trial court granted the motion with no objection from
appellant. N.T. 11/17/14 at 16. The Commonwealth asked the jury to find the torture
aggravator, 42 Pa.C.S. §9711(d)(8), and stipulated to the mitigator of no significant
criminal history, 42 Pa.C.S. §9711(e)(1). Id. at 6. Appellant introduced testimony from
his family which focused on their family’s history of substance abuse and mental illness,
as well as appellant’s depression and attempts at suicide. Id. at 46-47, 57. Appellant
also presented the testimony of Dr. Kenneth J. Weiss, a psychiatrist, who interviewed
appellant and reviewed his medical history. Dr. Weiss concluded appellant’s
depression was caused by a number of adverse childhood experiences, and his drug
use exacerbated his depression and fueled his violent behavior. Id. at 89-92. Appellant
also presented testimony from several witnesses who interacted with him during his
incarceration and testified he is a respected model prisoner with no disciplinary
problems. N.T. 11/18/14 at 8, 10, 15 43-45. Finally, appellant introduced the testimony
of Dr. Carol Armstrong, a neuropsychologist, who performed various tests and
concluded appellant has many cognitive impairments which would not occur in a typical
healthy individual and would affect his ability to make good judgments. Id. at 20-27.
[J-81-2016] - 12
The jury ultimately sentenced appellant to death, finding the aggravating factor of torture
outweighed any mitigating factors.
Appellant filed post-sentence motions raising claims related to the sufficiency and
weight of the evidence, ineffectiveness of trial counsel, and challenging the trial court’s
admission of the testimony of Alston, Washington and Chavez relating to his alleged
prior bad acts.6 In explaining why it allowed the witnesses’ testimony, the court relied in
part on Commonwealth v. Weakley, 972 A.2d 1182 (Pa. Super. 2009), to analyze the
similarities between Deanna Null’s murder and the prior acts across several factors.
See id. at 1189 (court must consider: “(1) the manner in which the crimes were
committed; (2) weapons used; (3) ostensible purpose of the crime; (4) location; and (5)
type of victims.”).
The trial court found significant similarities among the incidents: each involved
appellant attacking a woman in the neck area as an immediate reaction to her not
behaving in the way he desired. Tr. Ct. Opinion, 8/18/15 at 30-31. The court further
noted the same weapon was used in attacking each victim around the neck, i.e.,
appellant’s own hands. Id. at 31. The court also found the ostensible purpose of each
crime was identical — appellant always attacked as an expression of control. Id. The
court acknowledged the location factor did not support admissibility as the acts occurred
in different places, but the type of victim was consistent; the court noted Deanna Null
and the witnesses were of similar body types and all were drug users, appellant
demonstrated a sexual interest in each woman, and the attacks occurred while
appellant was alone with them. Id. The court concluded the prior incidents were
6
Appellant’s counsel also filed a motion to withdraw and to appoint new counsel to
litigate appellant’s collateral claims. The only issue raised by appellant on direct appeal
in this Court is his challenge to the trial court’s admission of the Rule 404(b) other acts
evidence.
[J-81-2016] - 13
sufficiently similar to the charged crime to be admissible. Id. The court further opined
that, with regard to showing common plan or scheme, proof of one incident “tends to
prove the others,” id. at 32, and the jury was correctly told the evidence could be used
to establish intent, motive, common plan or scheme, and lack of accident, as well as the
identity of the perpetrator. Id. at 31-32. The court concluded the details of the various
other acts were not “simply insignificant details that would likely be common no matter
who perpetrated the crime,” reiterating the victim and the witnesses were involved in
crack cocaine use, appellant had a sexual relationship with the victim and showed a
sexual interest in the witnesses, possible causes of the victim’s death included
asphyxiation or decapitation, and appellant violently attacked all of the witnesses in their
neck area. Id. at 32-33. The court denied post-sentence relief and this direct appeal
followed.
II. Sufficiency of the Evidence for First-Degree Murder
Appellant does not challenge the sufficiency of the evidence and did not brief the
issue, but in all capital direct appeals, this Court conducts an independent review of the
sufficiency of the evidence supporting a first-degree murder conviction, even if the
defendant does not raise the claim. See Commonwealth v. Zettlemoyer, 454 A.2d 937,
942 n.3 (Pa. 1982) (to fulfill review obligation imposed by 42 Pa.C.S. §9711(h), Court
shall review sufficiency of evidence supporting first-degree murder, even where
appellant does not contest sufficiency). The standard of review for evidentiary
sufficiency is whether the evidence, viewed in the light most favorable to the
Commonwealth as the verdict winner, supports the jury’s finding that every element of
the offense was proven beyond a reasonable doubt. Commonwealth v. Watkins, 843
A.2d 1203, 1211 (Pa. 2003). The Commonwealth may sustain this burden by wholly
[J-81-2016] - 14
circumstantial evidence and the jury is free to believe all, part, or none of the evidence.
Commonwealth v. Cousar, 928 A.2d 1025, 1032-33 (Pa. 2007). “To obtain a conviction
for first-degree murder, the Commonwealth must demonstrate that a human being was
unlawfully killed, that the defendant was the killer, and that the defendant acted with
malice and a specific intent to kill.” Commonwealth v. Laird, 988 A.2d 618, 624-25 (Pa.
2010), citing 18 Pa.C.S. §2502(a). Specific intent and malice may be inferred through
circumstantial evidence, such as the use of a deadly weapon on a vital part of the
victim’s body. Commonwealth v. Houser, 18 A.3d 1128, 1133-34 (Pa. 2011).
When viewing the evidence in the light most favorable to the Commonwealth, the
record establishes the victim, with whom appellant used drugs and engaged in sex, was
badly beaten, strangled and decapitated with a saw blade or knife prior to her death.
Furthermore, appellant had a history of violent conduct toward drug-addicted women
who may have been prostitutes or with whom he otherwise had a sexual relationship.
Also, appellant was the last person seen with the victim before her disappearance,
blood was found in his car and on his boots, the victim’s hands were found in the walls
of his house and other materials found in the house matched the materials used to
discard the victim’s body. Although there was conflicting expert testimony regarding the
circumstances of the victim’s death and whether her wounds were pre- or post-mortem,
the jury was free to believe the testimony of the Commonwealth witnesses and
disbelieve the testimony of the defense witnesses. The jury’s verdict that appellant
unlawfully killed the victim with malice and the specific intent to kill was supported by the
evidence of record and we will not disturb that finding.
III. Evidence of of Rule 404(b) Crimes, Wrongs or Other Acts
[J-81-2016] - 15
In his only briefed issue on appeal, appellant argues the trial court abused its
discretion in admitting evidence of criminal allegations by the witnesses. Appellant
claims the trial court erred in its analysis of the above mentioned Weakley factors
because the only similarities between the prior incidents and the victim’s death was that
appellant allegedly used his hands on or around the neck area of all the women.
Appellant argues there were significant differences between the encounters, including:
his reasons for arguing with the women; the location of the incidents and his relationship
to the witnesses and the victim (one was his girlfriend while the others were
acquaintances). Appellant further argues the level of violence in the “other acts”
evidence is clearly distinguishable from the level of violence perpetrated on the victim.
Appellant insists the dissimilarities far outweigh their similarities such that the other acts
testimony was prejudicial and irrelevant.
The Commonwealth maintains the Rule 404(b) evidence was properly admitted
for the legitimate purpose of proving appellant’s common scheme, his identity, and the
lack of accident. The Commonwealth argues the trial court, after analyzing the Weakley
factors, correctly found significant similarities between the crimes committed against the
witnesses and the murder of the victim, including the fact the witnesses were attacked
in the neck area and the victim was strangled and decapitated. Commonwealth’s Brief
at 10-12, citing Weakley, 972 A.2d at 1189. According to the Commonwealth, the
probative value of the other acts evidence far outweighed any unfairly prejudicial effect
as the case against appellant was mainly circumstantial; there were no witnesses to the
crime, no confession from appellant, and the victim’s body was badly decomposed.
Furthermore, the Commonwealth notes the defense introduced expert testimony
suggesting the victim died of a drug overdose, and the other acts evidence effectively
countered the suggestion of accidental death. The Commonwealth asserts the
[J-81-2016] - 16
evidence was necessary to support its circumstantial case and rebut the defense’s
theory, as well as to prove a common plan or scheme, motive and identity.
“Evidence is admissible if it is relevant — that is, if it tends to establish a material
fact, makes a fact at issue more or less probable, or supports a reasonable inference
supporting a material fact — and its probative value outweighs the likelihood of unfair
prejudice.” Commonwealth v. Boczkowski, 846 A.2d 75, 88 (Pa. 2004) (citations
omitted). Admissibility of evidence is within the sound discretion of the trial court and
we will not disturb an evidentiary ruling absent an abuse of that discretion.
Commonwealth v. Arrington, 86 A.3d 831, 842 (Pa. 2014), citing Commonwealth v. Flor,
998 A.2d 606, 623 (Pa. 2010). Moreover, “evidence of prior bad acts, while generally
not admissible to prove bad character or criminal propensity, is admissible when
proffered for some other relevant purpose so long as the probative value outweighs the
prejudicial effect.” Boczkowski, 846 A.2d at 88. See also Arrington, 86 A.3d at 842,
citing Pa.R.E. 404(b)(1); Commonwealth v, Morris, 425 A.2d 715, 720 (Pa. 1981) (law
does not allow use of evidence which tends solely to prove accused has “criminal
disposition”). Such evidence may be admitted to show motive, identity, lack of accident
or common plan or scheme. Arrington, 86 A.3d at 842, citing Pa.R.E. 404(b)(2);
Commonwealth v. Briggs, 12 A.3d 291, 337 (Pa. 2011) (Rule 404(b)(2) permits other
acts evidence to prove motive, lack of accident, common plan or scheme and identity).
In order for other crimes evidence to be admissible, its probative value must outweigh
its potential for unfair prejudice against the defendant, Pa.R.E. 404 (b)(2), and a
comparison of the crimes proffered must show a logical connection between them and
the crime currently charged. Arrington, 86 A.3d at 842.
This Court has long recognized an exception to the general inadmissibility of
other crimes evidence where there is a striking similarity — or logical connection —
[J-81-2016] - 17
between the proffered prior bad acts and the underlying charged crime. As early as
1872, in Shaffner v. Commonwealth, 72 Pa. 60 (1872), the Court described the
importance of such a connection as follows:
It is a general rule that a distinct crime, unconnected with that laid in the
indictment, cannot be given in evidence against a prisoner. It is not proper
to raise a presumption of guilt, on the ground, that having committed one
crime, the depravity it exhibits makes it likely he would commit another.
. . . To make one criminal act evidence of another, a connection between
them must have existed in the mind of the actor, linking them together for
some purpose he intended to accomplish; or it must be necessary to
identify the person of the actor, by a connection which shows that he who
committed the one must have done the other.
Id. at 65. See also Commonwealth v. Wable, 114 A.2d 334, 336-37 (Pa. 1955) (there
must be “such a logical connection between the crimes that proof of one will naturally
tend to show that the accused is the person who committed the other”); Commonwealth
v. Chalfa, 169 A. 564, 565 (Pa. 1933) (other bad acts evidence “must show some logical
connection between the offenses”). “Sufficient commonality of factors” between the
other incidents and the underlying crime “dispels the notion that they are merely
coincidental and permits the contrary conclusion that they are so logically connected
they share a perpetrator.” Weakley, 972 A.2d at 1189.
In further explaining the logical connection standard, this Court has noted “‛much
more is demanded than the mere repeated commission of crimes of the same class,
such as repeated burglaries or thefts. The device used must be so unusual or
distinctive as to be like a signature.’” Commonwealth v. Rush, 646 A.2d 557, 560-61
(Pa. 1994) (crimes containing uniquely similar attributes constitute a signature), quoting
McCormick on Evidence, §190 at 449 (2d Ed. 1972) (emphasis omitted). See also
Commonwealth v. Hughes, 555 A.2d 1264, 1282 (Pa. 1989) (similarities in crimes not
confined to insignificant details represent a signature); Weakley, 972 A.2d at 1189
[J-81-2016] - 18
(identity of perpetrator in underlying crime may be proved through other acts where they
“share a method so distinctive and circumstances so nearly identical as to constitute the
virtual signature of the defendant”).
This Court has consistently held there was no abuse of discretion in allowing
other crimes evidence in circumstances substantially similar to those presented here.
See, e.g., Commonwealth v. Elliott, 700 A.2d 1243, 1250 (Pa. 1997) (logical connection
found where three women in their twenties were choked, beaten or both in early
morning hours while alone with defendant), abrogated on other grounds by
Commonwealth v. Freeman, 827 A.2d 385 (Pa. 2003); Commonwealth v. Miller, 664
A.2d 1310, 1318 (Pa. 1995) (logical connection found where defendant lured women of
similar appearance into his car, took them to remote areas to rape and beat them in a
similar manner), abrogated on other grounds by Commonwealth v. Hanible, 836 A.2d
36 (Pa. 2003); Commonwealth v. May, 656 A.2d 1335, 1341 (Pa. 1995) (logical
connection found where victims were physically similar, attacks were of similar nature,
and body of victim was found close to where defendant left other assault victims); Rush,
646 A.2d at 561 (logical connection found where rape victims were young black women,
had undergarments pulled from them and were attacked and restrained with knives);
Hughes, 555 A.2d at 1282-83 (logical connection found between two rapes where both
victims were sexually immature, were taken off the street, were alone with defendant,
and were choked). But see Commonwealth v. Fortune, 346 A.2d 783, 787 (Pa. 1975)
(no logical connection where there is nothing distinctive to separate other acts from
common street crimes).
Most recently, this Court applied the logical connection standard in Arrington,
supra. Tondra Dennis dated defendant Arrington for a few years, but eventually had
him arrested for a series of physically and emotionally abusive incidents including
[J-81-2016] - 19
beatings, death threats and break-ins. Arrington, 86 A.3d at 837-38. Arrington was
incarcerated for a period of time, but was released after Dennis recanted her
allegations. Id. at 838. Ten days after Arrington’s release, Dennis was found murdered
just 357 feet from the residence Arrington previously shared with his mother. Id. at 839.
As there was no physical evidence linking Arrington to the murder and the case
was largely circumstantial, the Commonwealth was permitted to introduce evidence of
other acts involving three of Arrington’s girlfriends, their families and their friends, as
well as prior crimes against Dennis herself. Id. at 839. The following evidence was
presented at Arrington’s trial. Arrington dated Victoria Dexter for some time and began
to follow and telephone her continuously as the relationship progressed. Id. at 843.
When Dexter attempted to end the relationship, Arrington threatened her, set fire to her
apartment, slashed her furniture, beat her and hit her brother with a baseball bat. Id.
Arrington was incarcerated after pleading guilty to numerous crimes, but once paroled,
he began dating Sandra Williams, whom he assaulted three times during their two-year
relationship. Id. Arrington also pistol-whipped Williams after seeing her with a male
friend and struck another male friend of Williams in the shoulder with an axe before
firing a gun at him. Id. Arrington was again incarcerated, and began dating Dennis
soon after his release; after Dennis’s death, Arrington began dating Tanesha Jacobs.
Id. Arrington punched Jacobs in the face for smiling at a group of men on a local beach
and Jacobs ended the relationship; Arrington then began stalking her and threatening to
kill her and her family until she left the country to live with her mother. Id. at 844.
Arrington continued his threats via telephone, threatening to kill Jacobs’s brother, who
later died, and when Jacobs returned to the United States for her brother’s funeral,
Arrington’s stalking resumed. Id. Shortly thereafter, Arrington was arrested and
charged with Dennis’s murder. Id. at 839.
[J-81-2016] - 20
Upon being found guilty of first-degree murder and sentenced to death, Arrington
challenged the admissibility of the other acts on direct appeal to this Court. Id. at 837,
841. The Court held the shared characteristics of Arrington’s conduct during his other
relationships proved a logical connection between his prior bad acts and the underlying
charged crime of Dennis’s murder:
[The] evidence was not introduced in order to “portray him as a habitual
criminal with a propensity for violent behavior.” Rather, it was offered to
establish that [Arrington] acted pursuant to a common plan or scheme.
The testimony concerning [Arrington’s] treatment of other girlfriends
demonstrated repeated efforts to preserve intimate relationships through
harassment, intimidation, and physical violence culminating in the use of a
deadly weapon. In each instance, [Arrington]: (1) monitored his girlfriend’s
daily activities; (2) resorted to violence when his partner wanted to end a
relationship or interacted with other men; (3) inflicted head or neck injuries
with his fist, a handgun, or an edged weapon; and (4) harmed or
threatened to harm members of his girlfriend’s family or male
acquaintances that he viewed as romantic rivals. Given the shared
characteristics of each relationship, the evidence fell within the purview of
Pa.R.E. 404(b)(2).
Id. at 844 (citations omitted). The Court further concluded the evidence was relevant,
reliable, and probative of guilt, and “strengthened the prosecution’s case, which
consisted entirely of circumstantial evidence. . . .” Id. at 844-45. The Court also relied
on the fact that the trial court provided the jury with “comprehensive limiting
instructions.” Id. at 845.
Like the evidence allowed in Arrington, the evidence about appellant’s prior
relationships with and assaults upon Alston, Washington and Chavez showed they were
strikingly similar to the circumstances surrounding his relationship with the victim, her
injuries, and her subsequent death, such that there was a logical connection between
them. In each case appellant: (1) was introduced to drug-dependent women of similar
body types for purposes of using drugs; (2) showed a sexual interest in the women,
sometimes involving prostitution; (3) resorted to violence when the women behaved in a
[J-81-2016] - 21
way he found disagreeable; (4) inflicted injuries on each woman by targeting her neck
area with his hands, a sharp edged object, or both; and (5) verbally threatened to kill
each woman.7
These similarities not only establish the required logical connection between the
prior assaults and the circumstances surrounding the victim’s death, they also present a
“virtual signature” for purposes of proving common scheme, intent and identity. They
are not mere insignificant details of crimes of the same class, where there is nothing
distinctive to separate them from, for example, common street crimes. Compare
Hughes, 555 A.2d at 1283 (logical connection where similarities are not confined to
insignificant details but rather represent a signature) with Fortune, 346 A.2d at 787 (no
logical connection where there is nothing distinctive to separate other acts from
common street crimes). See also Weakley, 972 A.2d at 1189 (sufficient commonality of
factors between crimes dispels notion they are merely coincidental and permits
conclusion they are so logically connected as to share a perpetrator). There was
substantial evidence presented that Deanna Null engaged in sex and drug use with
appellant, was beaten, strangled, and had her throat cut by a sharp-edge weapon,
ultimately resulting in her beheading and death. As in Arrington, the only material
difference between the prior assaults and the underlying charged crime is that
appellant’s typically violent behavior finally progressed to a fatal attack. However, this
difference does not undermine the analysis leading to admissibility of the evidence
regarding the prior incidents. See Arrington, 86 A.3d at 844-45. See also Hughes, 555
7
We rely on the trial court’s observation that the witnesses and victim had similar body
types. Tr. Ct. Opinion, 8/18/15 at 31 (“The victim and the three witnesses were all of a
similar body type.”). Our reliance is not misplaced. Cf. Commonwealth v. McCracken,
659 A.2d 541, 551 (Pa. 1995) (trial court’s findings based on observation of witnesses
are entitled to deference on appeal).
[J-81-2016] - 22
A.2d at 1283, citing Commonwealth v. Clayton, 483 A.2d 1345, (Pa. 1984) (other acts
evidence involving prior choking victim who was injured but not killed admissible to
show defendant killed second choking victim); Weakley, 972 A.2d at 1190 (one
difference between the crimes at issue which fails to undo identity analysis is that other
crime did not culminate in murder).8
Where a logical connection between the other crimes and the underlying charged
crime has been established, as it was here, the court must also determine whether the
probative value of the evidence outweighs any unfair prejudice. See Pa.R.E. 404(b)(2)
(crimes, wrongs or other acts evidence admissible only when its probative value
outweighs its potential for unfair prejudice); Morris, 425 A.2d at 720 (other acts evidence
admissible when probative worth outweighs tendency to unfairly prejudice jury).
Obviously, the impact of introducing evidence of other crimes is significant and may be
highly prejudicial. Fortune, 346 A.2d at 787. However, such evidence is also highly
probative when the Commonwealth’s case is otherwise based largely on circumstantial
evidence. See Arrington, 86 A.3d at 844-45 (prior crimes evidence plays important role
where prosecution is based on circumstantial evidence); Miller, 664 A.2d at 1319 (other
acts evidence necessary when Commonwealth only had circumstantial evidence);
Weakley, 972 A.2d at 1191 (where prosecution’s case is largely circumstantial specific
purpose of other crimes evidence is “to give jury the insight into the significance of these
8
Justice Donohue declares the prior bad acts evidence presented here was “not even
of the same class as the charged crime,” and insists appellant’s violent, neck-focused
assaults on a series of women are wildly different from the underlying murder because
he did not also kill and dismember his earlier victims. Dissenting Opinion, Donohue J.,
slip. op. at 22 (internal quotation marks omitted). We recognize there would be an even
stronger correlation between the other acts and the victim’s death had appellant’s
violence escalated to the murder of one or more of the witnesses, but our most recent
case law is clear such a perfect match is not required. Arrington, 86 A.3d at 844-45.
See also Weakley, 972 A.2d at 1190.
[J-81-2016] - 23
circumstances”). Although the Commonwealth presented evidence the victim’s hands
were found behind the walls in appellant’s home, this circumstantial evidence alone did
not establish the victim’s death was not an accidental overdose (as suggested by the
defense), and that appellant did not, for example, merely dispose of her body
afterwards. For this reason, evidence regarding appellant’s assaults on Alston,
Washington and Chavez was relevant and probative to show lack of accident, and that
appellant acted intentionally in all instances with a common scheme: violently attacking
a woman with whom he engaged in drug use and sex, in the neck, after a
disagreement. Moreover, as in Arrington, the trial court’s detailed instructions properly
informed the jury of the limited and narrow purpose for which the evidence was admitted
and thus restricted any unfair prejudicial effect. See N.T. 11/7/14 at 59-60, 88; N.T.
11/14/14 at 110-112; Arrington, 86 A.3d at 845 (comprehensive limiting instructions to
be considered when balancing probative value and prejudicial impact); Boczkowski, 846
A.2d at 89 (limiting instructions weigh in favor of upholding admission of other bad acts
evidence).
Accordingly, we hold the trial court did not abuse its discretion in admitting Rule
404(b) evidence regarding other crimes, wrongs or acts by appellant. The witnesses’
testimony about their encounters with appellant shared such strikingly similar
circumstances and characteristics with the evidence surrounding the victim’s death that
it tended to establish the elements of first-degree murder instead of accidental death,
and also that appellant was the perpetrator. Furthermore, the probative value of the
evidence to the Commonwealth’s largely circumstantial case clearly outweighed any
unfair prejudicial effect, which was properly limited by the trial court’s cautionary
instructions to the jury. Appellant’s claim the evidence should not have been admitted
therefore fails.
[J-81-2016] - 24
IV. Statutory Review of Death Penalty Verdict
As we have determined there was sufficient evidence to sustain appellant’s
conviction for first degree murder, and his claim regarding Rule 404(b) evidence does
not warrant relief, we now determine whether the death sentence was the product of
passion, prejudice, or any other arbitrary factor, or the evidence does not support the
finding of at least one aggravating circumstance. See Arrington, 86 A.3d at 857, citing
42 Pa.C.S. §9711(h)(3). Our careful review of the record reveals the sentence was not
the product of passion, prejudice, or any other arbitrary factor. To the contrary, the
sentence was based on properly admitted evidence showing appellant intentionally
killed the victim by cutting her throat with a knife. We further conclude the evidence was
sufficient to support the aggravating circumstance of killing by means of torture as the
Commonwealth expert witnesses testified the victim was severely beaten and strangled
before being decapitated while she was still alive. Accordingly, we affirm the judgment
of sentence.
Judgment of sentence affirmed.
The Prothonotary of this Court is directed to transmit the complete record of this
case to the Governor of Pennsylvania in accordance with 42 Pa.C.S. §9711(i).
Justices Todd and Mundy join the opinion.
Chief Justice Saylor joins Parts I, II and IV of the opinion and files a concurring
opinion.
Justice Baer files a concurring opinion.
Justice Donohue files a dissenting opinion.
Justice Wecht files a dissenting opinion.
[J-81-2016] - 25
Commonwealth v. Hicks, C., Aplt.
Combined Opinion