Opinion
J-A10012-18 No. 2454 EDA 2017
07-03-2018
COMMONWEALTH OF PENNSYLVANIA Appellant v. ANTHONY O. GUDINO Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered July 26, 2017
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0001521-2016 BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and RANSOM, J. MEMORANDUM BY GANTMAN, P.J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, the Commonwealth of Pennsylvania, appeals from the order entered in the Monroe County Court of Common Pleas, which granted in part the pretrial motion, filed on behalf of Appellee, Anthony O. Gudino, to exclude at trial certain evidence, per Pa.R.E. 404(b), as to Count 1 (Criminal Homicide), but deferred its ruling on the admissibility of the same evidence at trial as to Count 2 (Endangering Welfare of Children "EWOC") and Count 3 (Recklessly Endangering Another Person "REAP"). We affirm the order as to Count 1, but quash the appeal as to Counts 2 and 3.
18 Pa.C.S.A. §§ 2501(a), 4304(a)(1), and 2705, respectively.
The trial court opinion sets forth the relevant facts and procedural history of this case. Therefore, we have no need to restate them. The Commonwealth filed a notice of appeal on July 28, 2017, with a certification that the trial court's order substantially handicapped or terminated the prosecution of the case against Appellee. See Pa.R.A.P. 311(d). The court ordered the Commonwealth, with service on August 1, 2017, to file a concise statement of errors complained of on appeal. The Commonwealth timely complied on August 7, 2017.
The Commonwealth raises the following issue on appeal:
DID THE TRIAL COURT ERR IN PRECLUDING THE COMMONWEALTH FROM INTRODUCING SPECIFIC INCIDENCES OF [APPELLEE]'S DOMESTIC VIOLENCE AND INTOXICATION WITHIN SEVERAL WEEKS OF THE HOMICIDE OF THE INFANT VICTIM TO SUPPORT THE ACTUS REUS AND MENS REA FOR THE CHARGES OF ENDANGERING THE WELFARE OF CHILDREN, AS A COURSE OF CONDUCT, AND RECKLESS[LY] ENDANGERING ANOTHER PERSON, AS WELL AS TO SHOW [APPELLEE]'S INTENT, STATE OF MIND, PRESENCE OF MALICE, ABSENCE OF ACCIDENT, AND MOTIVE?(Commonwealth's Brief at 5).
As a prefatory matter, we consider whether the Commonwealth's appeal is properly before us for review. As a general rule, an appeal lies from a final order that puts the litigants out of court. Commonwealth v Shearer , 584 Pa. 134, 882 A.2d 462 (2005). See also Pa.R.A.P. 341 (defining final orders generally). "Ordinarily, pre-trial orders are considered interlocutory and not appealable." Commonwealth v. Matis , 551 Pa. 220, 230, 710 A.2d 12, 17 (1998). The Commonwealth, however, may take an appeal as of right from an order that does not end the entire case where the Commonwealth has certified in its notice of appeal that the trial court's order will terminate or substantially handicap the prosecution. See Pa.R.A.P. 311(d). This exception applies to circumstances in which a pre-trial ruling results in the suppression, preclusion or exclusion of Commonwealth evidence. Shearer , supra at 141, 882 A.2d at 467 (citing Commonwealth v. Cosnek , 575 Pa. 411, 836 A.2d 871 (2003)).
Pennsylvania Rule of Appellate Procedure 311(d) provides:
Rule 311. Interlocutory Appeals as of RightPa.R.A.P. 311(d). Our Supreme Court has explained:
* * *
(d) Commonwealth appeals in criminal cases.—In a criminal case, under the circumstances provided by law, the Commonwealth may take an appeal as of right from an order that does not end the entire case where the Commonwealth certifies in the notice of appeal that the order will terminate or substantially handicap the prosecution.
The roots of the Rule are planted in the fundament of constitutional law: the Commonwealth has a never shifting burden to prove each element of the crime charged beyond a reasonable doubt. Constitutional due process requires that the government prove every fact necessary to constitute the crime beyond a reasonable doubt. The burden of proof never shifts but rests with the prosecution throughout. It is the continuing presumption of innocence that is the basis for the requirement that the state has a never-shifting burden to prove guilt of each essential element of the charge beyond a reasonable doubt.
When a pretrial motion removes evidence from the Commonwealth's case, only the prosecutor can judge whether that evidence substantially handicaps his ability to prove every essential element of his case. Additionally, only
the prosecutor can judge whether he can meet his constitutional burden of proving his case without that evidence.Cosnek , supra at 416-17, 836 A.2d at 874-75 (internal citations and quotation marks omitted).
The certification by an officer of the [c]ourt guards against frivolous appeals or appeals intended solely for delay. This Court has held that the Commonwealth's certification is not contestable and in and of itself, precipitates and authorizes the appeal. This Court has since made clear that the Commonwealth may appeal a pre-trial ruling on a motion in limine which excludes Commonwealth evidence in the same manner that it may appeal an adverse ruling on a suppression motion—i.e., by certification that the order has the effect of terminating or substantially handicapping the prosecution.Commonwealth v. Boczkowski , 577 Pa. 421, 441, 846 A.2d 75, 87 (2004) (internal citations, quotation marks, and footnote omitted) (holding Commonwealth's good faith certification included in notice of appeal that trial court order excluding evidence from Commonwealth's case-in-chief would terminate or substantially handicap prosecution was sufficient to trigger Commonwealth's right to appeal). A "substantial handicap" exists whenever the Commonwealth is denied the use of all of its available evidence. Id. at 441 n.17, 846 A.2d at 87 n.17. See also Commonwealth v. Gordon , 543 Pa. 513, 673 A.2d 866, 869 (1996) (explaining there is no essential difference between suppression rulings and rulings on motions in limine to admit or exclude evidence; in both cases, pretrial rulings are handed down which admit or exclude evidence at trial).
With respect to pre-trial rulings on the admissibility of evidence under Rule 404(b), our Supreme Court explained that the trial court should make pretrial Rule 404(b) determinations only when the trial judge finds it manifestly appropriate. Commonwealth v. Hicks , 625 Pa. 90, 91 A.3d 47 (2014) (stating value of evidence is fluid and prejudice is in flux until record is full and developed at trial). "[A] deferred, correct decision is better than an early, incorrect one." Id. at 101, 91 A.3d at 54. Pennsylvania law makes clear Rule 311(d) applies when the court actually makes a pretrial ruling to preclude or exclude the Commonwealth's proposed evidence. See generally Commonwealth v. Jordan , 125 A.3d 55 (Pa.Super. 2015) (en banc), appeal denied, 635 Pa. 741, 134 A.3d 55 (2016).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Margherita Patti-Worthington, P.J., we conclude the Commonwealth's issue as to Count 1 merits no relief. The trial court opinion fully discusses and properly disposes of that claim. ( See Trial Court Opinion, filed July 26, 2017, at 18-33) (finding: Rule 404(b) exceptions do not apply to Count 1, absent any direct and logical connection between Appellee's prior acts and those crimes currently charged; Commonwealth's evidence involves alcohol abuse and marital strife; despite possible relevance of prior bad acts evidence, Commonwealth failed to connect Appellee's drunken outbursts and anger directed at his wife to homicide of Child; Appellee's prior incidences with his wife showed no intent, motive, plan, scheme, or design to kill Child and reveal no malice or ill will against Child; Commonwealth's prior bad acts evidence might establish Appellee has been violent when drunk, and that he inferentially murdered Child because he was drunk at hospital on day in question; Commonwealth failed to develop necessary close factual nexus between prior bad acts and circumstances surrounding Child's death; as to Count 2 (EWOC) and Count 3 (REAP), it is unclear what other evidence Commonwealth seeks to admit as direct evidence; much of Commonwealth's proposed Rule 404(b) evidence shows Appellee's history of issues but is devoid of any relation of those issues to Child; court cannot properly evaluate Commonwealth's proposal as to Counts 2 and 3, until record is more fully developed at trial; without ruling on merits, court took matter under advisement as to Counts 2 and 3, until trial when Commonwealth might offer relevant direct evidence pertaining to Counts 2 and 3). We accept the court's analysis and affirm its decision as to Count 1. The Commonwealth certified its appeal as to Counts 1, 2, and 3; but without an adverse ruling concerning the Commonwealth's proposed evidence related to Counts 2 and 3, the Commonwealth has no appeal as of right under Rule 311(d) regarding Counts 2 and 3. See Jordan , supra. Accordingly, we affirm as to Count 1, based on the trial court's opinion, and quash the appeal as to Counts 2 and 3.
Order affirmed; appeal quashed in part. Case remanded for further proceedings. Jurisdiction is relinquished.
Judge McLaughlin joins this memorandum.
Judge Ransom did not participate in the consideration or decision of this case. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/3/18
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