Commonwealth v. Hicks

• Decision Date: 28 April 2014
• Citation: 91 A.3d 47
• Court: Pennsylvania Supreme Court
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Charles Ray HICKS, Appellee.

91 A.3d 47

COMMONWEALTH of Pennsylvania, Appellant

v.Charles Ray HICKS, Appellee.

Supreme Court of Pennsylvania.

Argued Nov. 20, 2013.

Decided April 28, 2014.

Elmer D. Christine Jr., Esq., Michael Mancuso, Esq., Bradley Andrew Schmidt, Esq., Monroe County District Attorney's Office, for Commonwealth of Pennsylvania.

Jason Allen LaBar, Esq., Wieslaw T. Niemoczynski, Esq., James Paul Gregor, Esq., Monroe County Public Defender's Office, for Charles Ray Hicks.

BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.

OPINION

Justice EAKIN.

In this appeal, we consider Pa.R.E. 403 and 404(b). The trial court ruled pre-trial that certain Commonwealth witnesses identified pursuant to Rule 404 would be cumulative, rendering their testimony inadmissible under Rule 403. We conclude this was error, reverse the Superior Court's order, and remand to the trial court.

On January 29, 2008, the dismembered body of Deanna Null was discovered in seven garbage bags strewn along Pennsylvania Routes 80 and 380. After receiving information that Null was last seen riding with appellee Hicks, police interviewed him; he admitted smoking crack cocaine with Null in the past and giving her money and drugs in exchange for sex. After finding blood on a pair of boots in the trunk of appellee's car, police searched his residence and discovered Null's hands wrapped in socks and coated with laundry detergent. Appellee was arrested and charged with criminal homicide, aggravated assault, tampering with or fabricating physical evidence, and abuse of a corpse.¹ The Commonwealth sought the death penalty.

Prior to trial, the Commonwealth provided notice under Pa.R.E. 404(b)² of its intent to present evidence of “prior bad acts” through several named witnesses. The Commonwealth stated the basis for this testimony would be:

to establish defendant's motive for the present offense, his method or modus operandi for the commission of the present offense, to establish his identity as the perpetrator of the present offense, the absence of any accident or mistake as the cause of the victim's death in the present offense, and/or proof of a common plan or scheme on the part of the defendant to victimize prostitutes or women engaging in prostitution to satisfy their addictions to controlled substances, such as the victim of the present offense, Deanna Null.

Commonwealth's Rule 404(b) Notice, 3/26/10, at 1–2. The Commonwealth did not detail their individual testimony, but added that appellee admitted to one of the witnesses he had a problem hurting prostitutes. Appellee moved to exclude the testimony, asserting the Commonwealth failed to state the basis for admissibility. Upon request by the trial court, the Commonwealth submitted offers of proof for each of its proposed witnesses, including corroborative police reports from other jurisdictions.

The evidentiary notice and challenge thereto were properly made under Rule 404(b). The trial court found similarity between the anticipated facts and the offers of proof for three of the witnesses, constituting evidence of a “common scheme” under Rule 404(b)(2); it ruled the evidence admissible under then-Rule 404(b)(3)³ because: (1) the evidence had particular relevance due to the circumstantial nature of the case; (2) the cause and manner of death were at issue; and (3) any prejudice could be mitigated by limiting the scope of testimony to establish a common scheme. As to the remaining four witnesses, the trial court concluded “their testimony would be repetitive of the testimony of [the three admitted witnesses] ... and as such, its prejudicial effect would outweigh its probative value.” Trial Court Opinion, 7/14/11, at 15.

Thus, the court ruled the witnesses' testimony admissible under Rule 404, but also found some of it would be cumulative, and excluded it under Rule 403. The latter provides: “The court may exclude relevant evidence if its probative value is outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 403.

The Commonwealth appealed, arguing “the lower court was premature in deciding which of its proffered witnesses could be utilized.” Commonwealth's Rule 1925(b) Statement, 8/8/11, at 2. The court filed a Rule 1925(a) opinion, explaining it found the proposed testimony of the excluded witnesses insufficiently similar for admission—it was not deemed to show a “common scheme” under Rule 404(b). This facially contradicted its prior ruling, that the evidence was essentially too similar and therefore “cumulative” under Rule 403. See Trial Court Opinion, 8/19/11, at 6–8 (citations omitted).

Despite their manifest inconsistency, the Superior Court treated the conflicting rationales of the trial court as merely alternative bases for exclusion. The court noted that, as the comment to Rule 404(b)'s pre-trial notice requirement states, the purpose of the requirement is “to give the defendant reasonable time to prepare an objection to J such evidence[,]” the trial court did not err in making a pre-trial determination of admissibility. Commonwealth v. Hicks, No. 1977 EDA 2011, unpublished memorandum at 10, 53 A.3d 932 (Pa.Super. filed June 18, 2012) (emphasis omitted) (citation omitted). The court opined it is not only reasonable, but “desirable for [a] defendant to raise such objection prior to trial rather than waiting until the time of trial when such objections could hamper the Commonwealth's presentation to the fact-finder and cause further delay.” Id., at 10 n. 1. The court also rejected the Commonwealth's argument that it could not know which witnesses it would be able to obtain for trial, stating “[t]he Commonwealth merely wishes to have a greater pool of potential witnesses from which to draw [,]” but “[t]he depth of that pool is immaterial ... if the court determines that the testimony of any member of that pool is otherwise inadmissible.” Id., at 11.

The Commonwealth petitioned for allowance of appeal, which we granted to address the muddled application of Rules 403 and 404(b), and to determine whether rulings limiting or specifying which witnesses a party may call are appropriate for pre-trial consideration. The Commonwealth argues “needless presentation of cumulative evidence” cannot be determined before trial because cumulative evidence is “ ‘additional evidence of the same character as existing evidence and that supports a fact established by the existing evidence [,]’ ” and before trial, no evidence has been presented, and no facts have been established. Commonwealth's Brief, at 20 (quoting Commonwealth v. G.D.M., 926 A.2d 984, 989 (Pa.Super.2007)).⁴ It argues that the practicalities of a case like this make it nigh impossible to know which potential witnesses it will be able to call at trial; as such, a court can only speculate whether potential testimony will be cumulative or not.

Pointing to In re Paoli Railroad Yard PCB Litigation, 916 F.2d 829 (3d Cir.1990), the Commonwealth urges us to adopt the approach taken by the Third Circuit Court of Appeals. There, the court opined Federal Rule of Evidence “403 is a trial-oriented rule[,]” so “[p]recipitous Rule 403 determinations, before the challenging party has had an opportunity to develop the record, are therefore unfair and improper.” Id., at 859 (footnote omitted). Accordingly, the court held “in order to exclude evidence under Rule 403 at the pretrial stage, a court must have a record complete enough on the point at issue to be considered a virtual surrogate for a trial record.” Id., at 859–60. The Commonwealth argues this precedent is persuasive, emphasizing the similarities between the two rules both in language and in purpose.⁵

The Commonwealth explicitly objects to the trial court's preclusion of specific witnesses. It emphasizes the government's right to prove its case by evidence of its choosing, citing Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997).⁶ It also notes we have disapproved of judicial attempts to alter evidence of motive, mindful of the heavy burden the Commonwealth bears. Appellee counters that the trial court's decision must be reviewed for abuse of discretion. Although he concedes “[a] pre-trial evidentiary ruling could be an abuse of discretion because it was premature,” Appellee's Brief, at 8, he appears to contend the court did not abuse its discretion, as the Commonwealth had ample time to investigate and inform the court of the issues, and the trial court was familiar with the pre-trial record.

Appellee suggests the trial court actually based its ruling on Rule 404(b), not Rule 403.⁷ He contends Rule 404(b)'s notice provision “in essence contemplates that a court may make a pretrial determination [,]” Appellee's Brief, at 8, noting, prior to the 2013 revision, the comment to that provision stated “[i]ts purpose is to prevent unfair surprise, and to give the defendant reasonable time to prepare an objection to, or ready a rebuttal for, such evidence.” Pa.R.E. 404 cmt. section (b) (rescinded and replaced March 18, 2013). Appellee also notes the comment indicates the notice provision is the same as its federal counterpart, F.R.E. 404(b), and the Advisory Committee Note to the federal rule provides “ ‘[n]othing in the amendment precludes the court from requiring the government to provide it with an opportunity to rule in limine on 404(b) evidence before it is offered or even mentioned during the trial.’ ” Appellee's Brief, at 9 (quoting F.R.E. 404(b), Advisory Committee Note to 1991 Amendment).

Appellee contends the advance ruling here saved “time, effort, and trial preparation costs[,]” as the defense would have needed to investigate all the witnesses and prepare impeachment evidence for each, “a significant burden for any defendant, but especially one defended by a public defender, who has limited resources.” Id.,...