Com. v. Lowry, D.

J-S38015-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : DESCHAE LOWRY : : Appellant : No. 1338 EDA 2016

Appeal from the Judgment of Sentence March 30, 2016 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0007108-2014

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : DE-SCHAE M. LOWRY : : Appellant : No. 1342 EDA 2016

Appeal from the Judgment of Sentence March 30, 2016 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0007099-2014

BEFORE: GANTMAN, P.J., SHOGAN, J., and FITZGERALD, J.* MEMORANDUM BY GANTMAN, P.J.: FILED JULY 25, 2017

Appellant, Deschae Lowry,1 appeals from the judgment of sentence

entered in the Delaware County Court of Common Pleas, following his jury ____________________________________________

1 The captions illustrate the alternative spellings for Appellant’s first name as Deschae and De-Schae.

___________________________ *Former Justice specially assigned to the Superior Court.

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trial convictions for first-degree murder and theft, arising from the events which occurred on August 1, 2014, when Appellant fatally strangled Victim in her home and then drove Victim’s car from her home to Florida.2 We affirm.

The trial court opinion fully and accurately sets forth the relevant facts and procedural history of this case. Therefore, we have no need to restate them. Procedurally, this Court consolidated Appellant’s two notices of appeal on June 2, 2016.

Appellant raises one issue for our review:

WHETHER THE COURT ERRED IN PERMITTING THE COMMONWEALTH TO INTRODUCE EVIDENCE OF ALLEGED PRIOR BAD ACTS OR OTHER WRONGS FOR WHICH [APPELLANT] WAS NOT ON TRIAL SINCE THE PROBATIVE VALUE OF THAT EVIDENCE DID NOT OUTWEIGH THE POTENTIAL FOR UNFAIR PREJUDICE THAT FLOWED FROM ALL THE EVIDENCE PERTAINING TO PROTECTION FROM ABUSE MATTERS, AS WELL AS ALL OF THE TESTIMONY SUPPLIED BY THE FIRST THREE COMMONWEALTH WITNESSES[?]

(Appellant’s Brief at 7).

The standard of review for admission of evidence is as follows: “The admissibility of evidence is at the discretion of the trial court and only a showing of an abuse of that discretion, and resulting prejudice, constitutes reversible error.” Commonwealth v. Ballard, 622 Pa. 177, 197-98, 80 A.3d 380, 392 (2013), cert. denied, ___ U.S. ___, 134 S.Ct. 2842, 189

L.Ed.2d 824 (2014). ____________________________________________

2 18 Pa.C.S.A. §§ 2502(a), 3921(a), respectively.

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The term “discretion” imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion, within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will.

Commonwealth v. Goldman, 70 A.3d 874, 878-79 (Pa.Super. 2013), appeal denied, 624 Pa. 672, 85 A.3d 482 (2014). “To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party.” Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa.Super. 2012), appeal denied, 619 Pa. 678, 62 A.3d 379 (2013).

Admissibility depends on relevance and probative value. 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. Drumheller, 570 Pa. 117, 135, 808 A.2d 893, 904 (2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2284, 156 L.Ed.2d 137 (2003) (quoting Commonwealth v. Stallworth, 566 Pa. 349, 363, 781 A.2d 110, 117-18 (2001)).

The Pennsylvania Rules of Evidence govern the admissibility of prior crimes, wrongs, or acts evidence as follows:

Rule 404. Character evidence; Crimes or Other Acts

• • * *

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(b) Crimes, Wrongs or Other Acts.

(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.

(3) Notice in a Criminal Case. In a criminal case the prosecutor must provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence the prosecutor intends to introduce at trial.

Pa.R.E. 404(b)(1)-(3).

“Evidence of crimes other than the one in question is not admissible solely to show the defendant’s bad character or propensity to commit crime.” Commonwealth v. Collins, 550 Pa. 46, 55, 703 A.2d 418, 422 (1997), cert. denied, 525 U.S. 1015, 119 S.Ct. 538, 142 L.Ed.2d 447 (1998). Nevertheless:

[E]vidence of other crimes is admissible to demonstrate (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) the identity of the person charged with the commission of the crime on trial. Additionally, evidence of other crimes may be admitted where such evidence is part of the history of the case and forms part of the natural development of the facts.

Id. at 55, 703 A.2d at 422-23; Pa.R.E. 404(b)(2). See also

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Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, 1283 (Pa.Super. 2004) (en banc) (reiterating “other crimes” evidence is admissible to show motive, intent, absence of mistake or accident, common scheme or plan, and identity). “Factors to be considered to establish similarity are the elapsed time between the crimes, the geographical proximity of the crime scenes, and the manner in which the crimes were committed.” Commonwealth v. Taylor, 671 A.2d 235, 247 (Pa.Super. 1996), appeal denied, 546 Pa. 642, 683 A.2d 881 (1996). See also Commonwealth v. Andrulewicz, 911 A.2d 162, 169 (Pa.Super. 2006), appeal denied, 592 Pa. 778, 926 A.2d 972 (2007) (upholding consolidation of three cases against defendant for sexual assault of three minor females because cases demonstrated defendant’s common scheme, and jury could separate evidence for each case).

After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Kevin F. Kelly, we conclude Appellant’s issue merits no relief. The trial court opinion fully discusses and properly disposes of the question presented. (See Trial Court Opinion, filed December 2, 2016, at 10-34) (finding: court permitted Commonwealth to introduce only prior acts evidence Commonwealth proposed in its Rule 404(b) motion, which related to events which occurred within three years preceding Victim’s death; court allowed Commonwealth to offer prior acts evidence to establish Appellant’s malice, ill will, motive,

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and/or requisite intent, including troublesome nature of relationship between Victim and Appellant; court also permitted Commonwealth to present prior acts evidence to show chain and sequence of events on which Appellant’s offenses are grounded; Commonwealth’s prior acts evidence bore logical connection to Victim’s death; court allowed Commonwealth to elicit testimony from Tyeria Sanders concerning tumultuous nature of relationship between Victim and Appellant, including specific arguments, Appellant’s theft of money from Victim, and Appellant’s assaultive and menacing conduct toward Victim; Ms. Sanders also testified as to murderous threats Appellant made toward Victim; court permitted Commonwealth to elicit testimony from Caren Tribble about nature of relationship Victim had with Appellant and incidents of domestic violence between Victim and Appellant, which occurred in two years preceding Victim’s death; Ms. Tribble testified that she saw marks and bruises on Victim and observed domestic violence incident between Victim and Appellant that occurred outside Ms. Tribble’s workplace ten months prior to Victim’s death; court allowed Commonwealth to elicit testimony from Cindy Void regarding nature of Victim’s relationship with Appellant and incidences when Appellant took Victim’s car without permission; court permitted Commonwealth to present testimony of Sandra Robinson, court clerk services employee, regarding protection from abuse (“PFA”) petitions Victim had completed and PFA orders Victim had obtained against Appellant; court permitted Commonwealth to present testimony of

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Officer Michael DeHoratius about his encounter with Victim three weeks prior to Victim’s death when Appellant violated PFA order by appearing at Appellant’s home; additionally, court provided jurors with cautionary instructions, as to limited purposes for which jury could have considered Commonwealth’s prior acts, immediately following testimony of Ms. Sanders, Ms. Tribble, Ms. Void, Officer DeHoratius, and Ms. Robinson; court instructed jury to consider prior acts evidence only for purposes of Appellant’s malice, ill will, intent, and motive, and to show chain and sequence of events leading to Victim’s death; court specifically instructed jury not to consider prior acts as evidence that Appellant had bad character or criminal propensities; prejudicial effect of Commonwealth’s prior acts evidence did not outweigh probative effect of evidence). The record supports the trial court’s rationale, and we see no reason to disturb it. See Ballard, supra; Drumheller, supra; Collins, supra. Accordingly, we affirm on the basis of the trial court opinion.

Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/25/2017

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