J-S48038-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GARFIELD PATRICO ALEXANDER,
Appellant No. 232 MDA 2017
Appeal from the Judgment of Sentence May 15, 2015
in the Court of Common Pleas of Lackawanna County
Criminal Division at No.: CP-35-CR-0001238-2014
BEFORE: OTT, J., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 20, 2017
Appellant, Garfield Patrico Alexander, appeals nunc pro tunc from the
judgment of sentence imposed pursuant to his jury conviction of two counts
each of aggravated assault and terroristic threats, and one count each of
simple assault, recklessly endangering another person, unlawful restraint,
and criminal attempt-aggravated assault.1 We affirm.
We take the following factual background from the trial court’s March
30, 2017 opinion and our independent review of the certified record.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2702(a)(1), 2706(a)(1), 2701(a)(1), 2705, 2902(c)(1),
and 901(a), respectively.
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On July 16, 2014, the Commonwealth filed a criminal information
against Appellant charging him with criminal attempt-homicide, aggravated
assault, terroristic threats, simple assault, recklessly endangering another
person, and unlawful restraint, related to a domestic incident that occurred
on June 11, 2014. On February 23, 2015, the Commonwealth amended the
information to include a count for attempt-aggravated assault. The
Commonwealth also filed a motion in limine seeking to introduce prior bad
act evidence pursuant to Pennsylvania Rule of Evidence 404(b). After
argument, the trial court granted the motion over Appellant’s objection. On
March 17, 2015, trial commenced.
The trial court aptly describes what occurred at trial in its March 30,
2017 opinion:
The evidence at trial demonstrated that on or about June
11, 2014, members of the Scranton Police Department were
directed to report to 917 Slocum Avenue, Scranton,
Pennsylvania to assist in the investigation of a domestic dispute
which resulted in the stabbing of a seventeen (17) year old
male. Upon arrival, police officers were notified that the victim
was in critical condition and had already been transported to the
hospital.
At trial, the victim, Dyshawn Cunningham, (hereinafter,
“Victim”)[,] identified his stepfather, [Appellant,] as the
individual who stabbed him during a domestic dispute that
morning at his residence. The victim stated that he was
awakened by a loud fight between his mother and [Appellant].
After being awakened, the [V]ictim went downstairs and noticed
that [Appellant] was on top of his mother assaulting her. The
[V]ictim then ordered [Appellant] to get away from his mother,
at which point [Appellant] pulled a knife and screamed[,] “Get
[down] on the ground, [I’m gonna take] everyone out tonight!”
(N.T. Trial, 3/18/15, at 100-01). The [V]ictim then attempted to
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protect his mother by striking [Appellant] with a piece of wood,
at which point [Appellant] stabbed him once in the left chest and
twice in the back. [Appellant] then fled the residence.
During the trial, [Appellant’s] wife and the [V]ictim’s
mother, Danielle Alexander, corroborated [the Victim’s] details
of the events that occurred on June 11, 2014. [Ms.] Alexander
testified that on the morning of the incident, she was awoken by
[Appellant] “coming in, he was screaming, yelling at me, and he
grabbed me by my hair and drug me out to the kitchen.” (N.T.
Trial, 3/17/15, at 169). After having dragged [Ms.] Alexander
by her hair into the kitchen of her home, he pinned her down on
the ground [] with his knees on her shoulders. She then
testified that [the Victim] came down while [Appellant] was
assaulting her, and he said[,] “Get off my mom.” (Id. at 171).
[Appellant] then “got up and turned around and said, []‘No, you
guys are going to listen to me tonight. Both of you get down on
the ground, put your hand[s] behind your back. I’m going to
take everybody out tonight.’” (Id. at 171-72). She then
testified that [Appellant] pulled out a butcher knife while she was
still laying on the ground, at which point she thought, “He [is]
going to kill him, kill me.” (Id. at 173). She then stated that
[Appellant] then “raised the knife [up] over his head and I just, I
blocked my face with my arms.” (Id. at 177). She then heard
[the Victim] and [Appellant] “struggling” and “[b]y the time I got
up, my son─I knew it had to be my son, but by the time I got
up, he was gone.” (Id. at 178). She then testified that she ran
after her son, [the Victim], who was halfway down the street
yelling for help. By the time [Ms.] Alexander reached her son,
“he was halfway down the street and he was leaning on the
neighbor’s concrete wall. And he was yelling, ‘Mom, I’m
stabbed.’” (Id. at 179). [Appellant] then fled the scene in a
rental car, while the EMT and Scranton Police responded to the
crime scene.
(Trial Court Opinion, 3/30/17, at unnumbered pages 2-3) (some record
citations omitted; record citation formatting provided).
On March 19, 2015, the jury found Appellant not guilty of criminal
attempt-homicide and convicted him of the aforementioned crimes. On May
15, 2015, the court sentenced Appellant to an aggregate term of
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incarceration of not less than seven and one-half nor more than fifteen
years. Appellant did not file post-trial motions or a direct appeal.
On April 25, 2016, Appellant filed a pro se petition pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, seeking leave
to appeal nunc pro tunc. The trial court appointed counsel on May 3, 2016
and, on January 19 and 26, 2017, it entered orders reinstating Appellant’s
direct appeal rights nunc pro tunc. On January 30, 2017, Appellant timely
appealed.2
Appellant raises two questions for our review:
1. Whether the trial court erred by permitting the
Commonwealth to introduce Ms. Alexander’s testimony of prior
bad acts pursuant to Rule 404(b) over defense objections?
2. Whether the trial court abused its discretion when it
excused a juror?
(Appellant’s Brief, at 4) (unnecessary capitalization omitted).
In his first issue, Appellant challenges the trial court’s grant of the
Commonwealth’s motion in limine seeking the admission of prior bad acts
testimony pursuant to Pennsylvania Rule of Evidence 404(b). (See id. at 8-
12). Specifically, Appellant argues that the court erred in allowing Ms.
Alexander’s “inflammatory and incriminating testimony” about prior domestic
____________________________________________
2
On March 1, 2017, Appellant timely filed a statement of errors complained
of on appeal pursuant to the court’s order. See Pa.R.A.P. 1925(b). The trial
court filed an opinion on March 30, 2017. See Pa.R.A.P. 1925(a).
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abuse involving Appellant because this “unfairly prejudiced [him] and the
probative value was minimal.” (Id. at 12). Appellant’s issue lacks merit.
In evaluating the denial or grant of a motion in limine, our
standard of review is well-settled. When ruling on a trial court’s
decision to grant or deny a motion in limine, we apply an
evidentiary abuse of discretion standard of review. A trial court
has broad discretion to determine whether evidence is
admissible, and a trial court’s ruling regarding the admission of
evidence will not be disturbed on appeal unless that ruling
reflects manifest unreasonableness, or partiality, prejudice, bias,
or ill-will, or such lack of support to be clearly erroneous. If the
evidentiary question is purely one of law, our review is plenary.
Commonwealth v. Gill, 158 A.3d 719, 725 (Pa. Super. 2017) (citation
omitted).
Generally, evidence of prior bad acts or unrelated criminal
activity is inadmissible to show that a defendant acted in
conformity with those past acts or to show criminal propensity.
Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be
admissible when offered to prove some other relevant fact, such
as motive, opportunity, intent, preparation, plan, knowledge,
identity, and absence of mistake or accident. Pa.R.E. 404(b)(2).
In determining whether evidence of other prior bad acts is
admissible, the trial court is obliged to balance the probative
value of such evidence against its prejudicial impact.
Commonwealth v. Winslowe, 158 A.3d 698, 713 (Pa. Super. 2017) (case
citations omitted). “[O]ur courts will allow evidence of prior bad acts where
the distinct crime or bad act was part of a chain or sequence of events which
formed the history of the case and was part of its natural development.”
Commonwealth v. Drumheller, 808 A.2d 893, 905 (Pa. 2002), cert.
denied, 539 U.S. 919 (2003) (citation and internal quotation marks
omitted).
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In Drumheller, the trial court granted the Commonwealth’s motion in
limine seeking to introduce prior bad act evidence that consisted of four
protection from abuse orders (PFAs) filed by the murdered victim against the
defendant over the previous thirty-four months. See id. at 901. In
concluding that the trial court properly exercised its discretion, the
Pennsylvania Supreme Court stated:
In the present case, the evidence suggests that the abuse by
[the defendant] of [the victim] continued during this entire
three-year period. All four PFA petitions are relevant to
demonstrate what the Commonwealth accurately characterizes
as “the continual and escalating nature of [defendant’s] abuse of
[the victim].” The challenged evidence shows the chain or
sequence of events that formed the history of the case, is part of
the natural development of the case, and demonstrates [the
defendant’s] motive, malice, intent, and ill-will toward [the
victim].
Id. at 905 (record citation omitted).
Similarly, in this case, the Commonwealth sought to admit Ms.
Alexander’s testimony regarding a PFA and several incidents of domestic
violence that occurred approximately six months’ prior to the June 11, 2014
incident “to show [Appellant’s] ill[-]will, motive, intent, and malice in
committing the current criminal charges” and “to demonstrate a chain and
sequence of events which form the history of this case[.] (Commonwealth’s
Motion in Limine, 2/23/15, at 4; see id. at 2-4). These incidents included
Ms. Alexander’s waking up in the middle of the night with Appellant holding
a butcher knife to her neck and “ranting and raving” because he believed
she was cheating on him. (See N.T. Trial, 3/17/15, at 138; see id. at 137).
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On another occasion, Appellant crashed into her vehicle with her inside it
several times, disabling the vehicle, and eventually forcefully yanking her
out of the car because she had just dropped off two male friends. (See id.
at 223-24). Also, Appellant started tracking Ms. Alexander on her cell
phone, and appearing in an agitated state wherever she was. (Id. at 147-
51). In spite of her fear of Appellant’s retribution, Ms. Alexander obtained a
PFA against him pursuant to an attorney’s advice, which excluded him from
her home. (See id. at 153, 157). Thereafter, Ms. Alexander was at home
when Appellant entered, swinging a machete at her, and slicing her
sweatpants. (See id. at 159, 166). In another incident, Appellant tried to
suffocate Ms. Alexander. (Id. at 167-68).
The trial court granted the Commonwealth’s motion, finding that:
Similarly to Drumheller, this [c]ourt found that [Appellant’s]
prior incidents of abuse were admitted pursuant to [R]ule 404(b)
because “they help the Commonwealth establish malice, intent,
and ill will toward the victim” and “that it is part of a connected
series or chain of events that led up to the June 11th event.”
(N.T. Trial, 3/17/15, at 14). Therefore, since these prior
incidents of abuse are more probative than prejudicial, [the
court] found that they [were] admissible at trial.
(Trial Ct. Op., at unnumbered page 6) (record citation format provided). We
agree.
Additionally, we observe that, at trial, the court gave cautionary
instructions to the jury three times during Ms. Alexander’s testimony, and
once during its closing charge. Before Ms. Alexander testified to the prior
bad acts, the court advised the jury that the testimony was to be used only
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for the limited purpose of showing malice, ill-will, motive, or a chain or
sequence of events leading up to the incident in question, not as evidence
that Appellant was a person of bad character. (See N.T. Trial, 3/17/15, at
136-37). Also, the court explained that the PFA was entered against
Appellant without any admission of wrongdoing, and advised that the jury
members were to consider this evidence for the limited purpose of showing
the chain or sequence of events. (See id. at 152-53). Next, the court
instructed the jury regarding testimony about incidents for which Appellant
was not on trial, that occurred after the entry of the PFA, and before the
incident in question, reminding them of its limited purpose. (See id. at 158-
59). Finally, in its closing charge, the court repeated that the prior bad acts
evidence was admitted for a limited purpose; and not to show that Appellant
is a person of bad character, or that he has criminal tendencies from which
they might be inclined to infer guilt. (See N.T. Trial, 3/19/15, at 79-80).
“The law presumes that the jury will follow the instructions of the
court.” Drumheller, supra at 906 (citations omitted). Here, the court
informed the jury of the limited use of the evidence of Appellant’s prior
abuse of Ms. Alexander, namely that it could only be used to demonstrate
the chain or sequence of events that formed the history of the case and
Appellant’s motive, malice, intent, and ill-will. Because the prior incidents of
domestic abuse and the facts that formed the basis for the PFA formed the
chain and sequence of events leading up to the June 11, 2014 crime, and
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the trial court provided cautionary instructions, we conclude that it did not
abuse its discretion in admitting the Commonwealth’s Rule 404(b) evidence.
See Gill, supra at 725. Appellant’s first issue does not merit relief.
In his second claim, Appellant argues that “[t]he trial court abused its
discretion by excusing a seated juror.” (Appellant’s Brief, at 12). We
disagree.
“The discharge of a juror is within the sound discretion of the trial
court. Absent a palpable abuse of that discretion, the court’s determination
will not be reversed.” Commonwealth v. Treiber, 874 A.2d 26, 31 (Pa.
2005) (citation omitted). “Alternate jurors . . . shall replace principal jurors
who become unable or disqualified to perform their duties.” Pa.R.Crim.P.
645(A).
Instantly, the trial court describes the pertinent background of this
matter as follows:
. . . [V]oir dire and jury selection took place on March 16, 2015.
After the selection of the jury, the members of the panel were
advised that [trial] would reconvene one (1) day later and
commence [] on March 17, 2015. When trial reconvened the
next day, [the trial court] raised a concern about juror No. 5.
[The court] thought he may have been sleeping and/or texting.
The juror was then brought into the courtroom outside the
presence of the remaining jurors to be questioned. . . .
(Trial Ct. Op., at unnumbered pages 6-7). The following relevant exchange
occurred between the court and the juror:
THE COURT: . . . I brought you out here just because I had
to ask you a couple of questions, okay?
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JUROR: Okay.
THE COURT: During the course of this morning, I have an
obligation to observe all of the jurors to make sure that they are
. . . performing their duties and being attentive jurors, and I, at
first, I thought you might have been texting on your phone,
because I couldn’t see your hands.
JUROR: Oh.
THE COURT: So I thought─because you were looking down
throughout the testimony this morning at your hands. I couldn’t
see your hands, so I thought, too, maybe you’re writing in your
notebook.
JUROR: Okay. Yeah.
THE COURT: So I had a concern, and then I thought maybe
you were drifting off to sleep. . . . So, were you?
JUROR: No.
* * *
THE COURT: Okay. And the only other concern that I had
was that I noted that when the tape was being played, a
transcript was disseminated. . . . And all of the jurors read along
with the transcript . . . except you. . . . Do you know why . . .
you didn’t read along?
* * *
JUROR: It was just too much. . . . [I]t was too much
for me to handle, I think. I don’t know.
THE COURT: Too much information?
JUROR: I suppose so.
THE COURT: Do you have─[I]s there something that I need
to know? Are you having─do you have concerns? Is there
something that’s concerning you or troubling you about your
service here?
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JUROR: Um─
THE COURT: And there’s no wrong answer.
JUROR: Well, I just─I guess I have moral─or I just
don’t─I have a moral objection to the whole thing.
THE COURT: You have a moral objection to the whole
proceeding?
JUROR: Yeah. Yep.
(N.T. Trial, 3/17/15, at 208-11). Thereafter, Appellant’s counsel questioned
the juror. That exchange included, in pertinent part:
[COUNSEL]: . . . Sir, you don’t feel you could be fair and
impartial even if the [j]udge instructed you that you need to be
to be a juror?
JUROR: I just have moral obligations for finding
someone guilty. I’m trying to think, I just─
[COUNSEL]: Okay.
JUROR: I just─
[COUNSEL]: But if the [j]udge─
JUROR: I’m sorry.
[COUNSEL]: That’s all right. You have trouble standing in
judgment of somebody else?
JUROR: Yeah. Basically.
[COUNSEL]: All right. If the [j]udge tells you, or has told
you that in order to be a proper juror for this trial you can’t have
any preconceived beliefs or notions that would cause you not to
be fair, is it your answer that you can’t be fair?
JUROR: I guess not.
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(Id. at 214-15). Following the above questioning, the trial court excused
the juror and replaced him with an alternate. (See id. at 218).
Based on the foregoing, where the juror stated that his moral and
ethical beliefs precluded him from being able to sit in judgment in a criminal
trial, the trial court properly exercised its discretion when it dismissed him
“to ensure impartiality and fairness to both parties.” (Trial Ct. Op., at
unnumbered page 9); see also Treiber, supra at 31. Appellant’s second
issue lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/20/2017
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