J-A06002-24
2024 PA Super 157
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PARIS ELIAS CARTER :
:
: No. 432 WDA 2023
Appeal from the Order Entered April 10, 2023
In the Court of Common Pleas of Butler County Criminal Division at
No(s): CP-10-CR-0000935-2021
BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and BECK, J.
OPINION BY LAZARUS, P.J.: FILED: July 25, 2024
The Commonwealth of Pennsylvania appeals from the order,1 entered in
the Court of Common Pleas of Butler County, granting Defendant Paris Elias
Carter’s motion in limine to preclude “other bad acts” evidence from being
admitted in Carter’s criminal homicide trial.2 After careful review, we affirm
in part and reverse in part. Specifically, we affirm that portion of the trial
court’s order excluding evidence showing that, while in Atlanta, Georgia,
Carter non-fatally shot his brother, Dante Carter,3 in the back of the head in
a ride-share vehicle and we reverse that portion excluding evidence of Carter’s
flight to Atlanta.
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1 This interlocutory appeal is properly before this Court. See Pa.R.A.P. 311(d).
2 See 18 Pa.C.S.A. § 2501(a).
3 For clarity, we will refer to Paris Carter as Carter, and to Dante Carter as
Dante.
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The facts of this case are as follows. On May 17, 2021, around noon,
four individuals—Tashane Henry, David Hines,4 Dante,5 and Carter,6—shared
drinks at a bar in New Castle, Pennsylvania. See N.T. Preliminary Hearing,
6/30/21, at 7. Henry testified that, on that date, he was aware that Hines
owned two firearms, and, while at the bar, Henry observed that Hines
possessed one firearm while Carter possessed the other. Id. at 23. Henry
saw the firearms in both Hines’ and Carter’s waistbands at the bar. Id. After
leaving a second bar—where the group continued to eat and drink—the four
men returned to Hines’ girlfriend’s7 house, where everybody was “smokin’”
and “chillin’.” Id. at 7.
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4 Hines—Henry’s close friend with whom he spent time daily—was referred to
as “Chop” at the preliminary hearing. See N.T. Preliminary Hearing, 6/30/21,
at 6, 44.
5 Henry referred to Dante as “Tay” at the preliminary hearing and testified
that he grew up with him. See N.T. Preliminary Hearing, 6/30/21, at 5. Henry
knew Hines through Dante. Id. at 16.
6 Henry referred to Carter as “Little” at the preliminary hearing. Henry
testified that Carter is his “cousin through [a] cousin,” and stated that, at the
time of the shooting, Henry had known Carter for about three years, and,
although not related, Henry sees Carter as a “blood cousin,” and “let him sleep
on his grandma’s couch.” See id. at 4-5, 17. Henry testified that Carter and
Dante were from Philadelphia and, at the time of Hines’ shooting, were
planning on living with Hines at Hines’ apartment in New Castle because they
were “basically homeless.” Id. at 5, 15. At the time of the shooting, Carter
and Dante were staying with Henry because Hines’ apartment was not yet
ready for the Carter brothers to move in. Id. at 18.
7 This individual’s name does not appear of record, and Henry did not know it
at the preliminary hearing. Id. at 33.
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At some point, Hines told the group that he wanted to drive to Pittsburgh
that day and wanted the others to join him on the ride. Id. at 8. There was
a “little dispute” between Hines and Carter on the porch, but Henry testified
that it “wasn’t deep at all,” and everyone was “chillin’,” “rappin’,” “shaking
hands, [and] smokin’ [a marijuana blunt] together.”8 Id. at 8, 25-26. On
cross-examination, Henry testified that both Carter and Hines, during their
brief argument, each told the other, “[I’m] like you[, too].” Id. at 27. Henry
further detailed—though perhaps not very clearly—the brief encounter, which,
he said, lasted less than one minute, as follows:
And I [(Henry)] was like: [“]What you all talking about?[”] He’s
like[,] “it was like nice.” Kept saying that, [“]I’m like you and
you’s like me.[”] And I’m like[, “]What you all talking about?[”]
Like, [“T]his my man, this my cousin, and that’s that. It ain’t
nothing.” They shook hands and went back to smokin’ and chillin’
and talkin’.
Id.
At some point that afternoon, Henry agreed to join Hines on the
proposed trip to Pittsburgh. Id. at 8. After an hour or so at Hines’ girlfriend’s
house, at approximately 3:00 p.m., the four men left in Hines’ girlfriend’s
silver Jeep and headed for Pittsburgh. At some point during their trip, the
group “smoked a blunt,” id. at 29, and after leaving a gas station, Henry was
driving, Hines was in the front passenger seat, Dante was seated behind
Hines, and Carter behind Henry. Id. at 9. Henry testified that Hines and
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8 Henry also testified that Hines was the only person who continued drinking
after the men left the bars, but Hines was not intoxicated when the group
departed for Pittsburgh at approximately 3:00 p.m. Id. at 28.
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Carter continued to possess firearms at this point. Id. at 29. Further, Henry
explained that while driving on the highway after leaving the gas station,
seemingly unprompted and without warning, Carter fired three shots at Hines’
head, missing with the first shot but hitting Hines twice thereafter, killing
Hines instantly. Id. at 9-10, 31, 35. Henry testified that he was blinded by
the gunpowder from the shots fired. Id. at 35. Henry further testified that,
immediately after the shooting, Carter stated, “I heard you was about this, []
you bitch,” which Henry took to mean that Carter was stating that Carter was
“a gangster.” Id. at 36, 39.
Henry explained that he was unaware of any conflict between Carter
and Hines at that point. Id. at 10, 31, 33-35. Henry further described that,
within seconds of the shooting, he was shaking and pulled over the car, id. at
10-11, 39, and asked why Carter had shot his friend, Hines. Carter then
demanded to drive and took over driving the group for a short period,
speeding down the highway, before exiting it. Id. at 11, 39. Henry testified
that Carter drove for approximately fifteen minutes before pulling over “on a
weak part of the rocks,” id. at 11, that gave way under the weight of the car,
causing the Jeep to tilt and become stuck at that location. See id.
Henry explained that, once the silver Jeep became stuck, Carter, with a
hand in his pants, urged the men to run away through the woods. Id. at 11.
Henry, Dante, and Carter, left the vehicle on foot, leaving Hines deceased in
the passenger seat of the Jeep. The men eventually arrived at a campground.
Id.
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Angelina Lopez, Henry’s girlfriend at the time, testified at the
preliminary hearing that she picked up the three men from that campground
in her gold minivan.9 Id. at 11, 54-55. Lopez testified that no one wanted to
talk during the drive back from the campground and the men told her that
Henry and Carter had gotten into an argument. Id. at 56. Once back at
Henry’s residence, Henry testified that he showered, and he and Carter then
abandoned their clothes in a nearby dumpster. Id. at 11.
About thirty minutes after arriving at Henry’s residence, Lopez testified
that there was a conversation in the backyard wherein Carter admitted to the
shooting, as follows:
[] [Carter] came outside. [Carter] started shaking his head. And
I said[, “]What happened, what really happened, why were you
arguing[?”] And he said[, “]Man,[”] and he just kept shaking his
head. And he said[, “]I had to get him out of here, I had to down
him.[”] And I said[, “D]own who[?] What are you talking
about[?”] I kept asking what he was talking about. I said,
[“W]hat, did you drop somebody?[”] . . . And he said[, “N]o.[”]
And he said, [“M]an, man,” and he kept going like this. And I
said[, “]What happened, what happened[?”] And he said[]
[Henry] told him to come outside and to talk to me about what
happened. And then [Henry] comes outside, and he said[, “]Tell
her, tell her, tell her what really happened. Tell her that you killed
my man.[”] And I ran[, and said, “W]ho the ‘f’ did you kill?[”]
And he said[, “]Tell her that you killed Chop, tell her you killed
Chop.[”] And I took my food in the house and I put the chicken
that I was going to put on the grill and I put it in the refrigerator.
____________________________________________
9 The Commonwealth alleges that surveillance video recordings corroborate
this event, but no video was shown. Id. at 11.
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Id. at 56-57, 66. When asked to elaborate on the statements relating to
“down[ing] his man,” Lopez testified as follows:
He said . . . he had to [“]down him.[”] And I said[, “D]own who?
Who are you talking about?[”] That’s what I said[, “]What did
you do?[”] And then he said[, “]Man,[”] and then I said[, “]What
did you do?[”] And he said[, “]I had to down him. I had to get
him, get him going, get him outta here,[”] or something like that.
And I said[, “Did you fuckin’ kill somebody?[”] And he said[,
“]Man,[”] – and [Henry] said[, “]Tell her, tell her you killed my
man, you killed my man.”
Id. at 57. Lopez further testified that, during that conversation, although he
never expressly admitted to the shooting, Carter stated, “He had to go. He
had to go.” Id. at 67. After that conversation, Dante was crying on the floor
and told Carter, “Man[,] you’re so young, you got so much potential.” Id. at
58. Thereafter, at Henry’s residence, Carter informed Henry that he wished
to be brought to Philadelphia so he could then proceed to Atlanta. Id. at 12.
The following day, at approximately 9 a.m., Henry, Lopez, their four
children,10 Carter, and Dante, drove to Philadelphia in Lopez’s gold van. Id.
at 44. At some point during the drive, police pulled the van over, and Henry
and Lopez both testified that, as the officer approached the stopped van,
Carter let a gun fall under the baby seat and retrieved it immediately after the
officer left. Id. at 46, 59, 68-69. Henry and Lopez dropped off Carter and
Dante in Philadelphia and eventually reported the murder to police.
From Philadelphia, the Commonwealth alleges that Carter and Dante
made their way to Fulton County, Georgia. On May 20, 2021, police had Henry
____________________________________________
10 The four children were ages 7, 3, 2, and a newborn infant. Id. at 43.
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place a recorded call to Dante, in which he discussed why Carter shot Hines.
The Commonwealth alleges that forty minutes later, Carter shot Dante in a
ride-share vehicle, which shooting was recorded by surveillance cameras in
the car. The Commonwealth also alleges that, during the investigation of that
shooting, the ride-share driver told police that, while driving Carter and Dante,
he heard a person on the other end of the phone with Dante tell Dante to hand
Carter the phone, and the ride-share driver remembers Dante complying with
that request. See N.T. Motion for Reconsideration/Clarification Hearing,
4/10/23, at 12.
The Commonwealth charged Carter with criminal homicide on August
24, 2021, in connection with Hines’ murder. On December 30, 2021, the
Commonwealth filed notice of its intent to admit evidence of the Georgia
shooting against Carter in the Hines murder case, pursuant to Pa.R.E. 404(b).
Specifically, the Commonwealth sought to introduce evidence that: (1)
following Hines’ shooting, Carter and Dante fled to Atlanta; (2) while in
Atlanta, Carter shot Dante in the back of the head;11 and (3) Dante survived
the Georgia shooting. See Commonwealth’s Pa.R.E. 404(b) Notice, 12/30/21,
at 1.
On February 15, 2023, Carter filed a motion in limine, seeking to prevent
the Commonwealth from introducing the evidence it identified in its Rule
____________________________________________
11 The Commonwealth sought to introduce, in its case-in-chief, video evidence
with audio, as well as still images of video recordings, all captured by cameras
installed on the ride-share vehicle in Atlanta. The Commonwealth also sought
to introduce the testimony of the ride-share driver.
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404(b) notice. On April 3, 2023, the court issued an order finding it premature
to rule on the motion in limine. The following day, the Commonwealth sought
reconsideration and/or clarification of the court’s decision. After a hearing, on
April 10, 2023, the court granted Carter’s motion in limine, prohibiting the
Commonwealth “from introducing in its case-in-chief the evidence proffered
in its [Rule 404(b)] Notice[.]” Order, 4/10/23.
On April 11, 2023, the Commonwealth filed an interlocutory appeal from
the trial court’s April 10, 2023 order, pursuant to Pa.R.A.P. 311(d). The
Commonwealth and trial court have complied with Pa.R.A.P. 1925.
On appeal, the Commonwealth raises the following issue for our review:
“Whether the trial court erred by granting [Carter]’s motion in limine,
excluding evidence of [Carter] committing another shooting, where that
evidence is a part of the history of the case and demonstrates [Carter]’s
consciousness of guilt, flight, [and] a common plan, scheme, design and
identity?” Appellant’s Brief, at 3 (unnecessary capitalization omitted).
The Commonwealth claims that the court erred because evidence of
flight is admissible to prove consciousness of guilt, even if the Commonwealth
does not prove the defendant knew he was wanted for the crime. See
Appellant’s Brief, at 16-17, citing Commonwealth v. Harris, 386 A.2d 108
(Pa. Super. 1978). Also, the Commonwealth argues that the court erred in
excluding the evidence because a defendant’s attempts to interfere with
witness testimony is admissible to show consciousness of guilt. See
Appellant’s Brief, at 13, citing Commonwealth v. Rega,
933 A.2d 997 (Pa.
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2007). Finally, the Commonwealth claims the court erred because evidence
of other crimes is admissible to prove a common scheme, plan, or design.
See Appellant’s Brief, at 19, citing Commonwealth v. Wable, 114 A.2d 334
(Pa. 1955).
In support of its ruling on the motion in limine, the trial court reasoned
that the evidence of flight and consciousness of guilt was inadmissible because
neither is an allowable specified purpose set forth in Rule 404(b)(2). See Trial
Court Opinion, 5/11/23, at 3. Also, the court found that the evidence of
Carter’s flight to Atlanta was inadmissible because Carter was not charged
with flight to avoid apprehension, trial, or punishment, pursuant to 18
Pa.C.S.A. § 5126. Id. Moreover, the court determined that the circumstances
of both shootings were not so related that they demonstrated a common
scheme, plan, or design, where there were only two incidents, and the
Commonwealth could rely on other evidence to prove its case. Id. at 3, 4.
Finally, the trial court found that, even if the evidence were admissible under
Rule 404, it was inadmissible under Pennsylvania Rule of Evidence 403
because the jury could not weigh the evidence impartially and would instead
decide Carter’s guilt on an improper basis. Id. at 3-4.
We review the court’s decision granting a motion in limine, giving the
court broad discretion, and using the same standard of review as applicable
to the admission of evidence at trial. See Commonwealth v. Flamer, 53
A.3d 82, 86 (Pa. Super. 2012).
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The trial court’s decision to admit evidence is subject to review for
an abuse of discretion. An abuse of discretion may not be found
merely because an appellate court might have reached a different
conclusion, but requires a result of manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support so as
to be clearly erroneous.
Commonwealth v. Hairston, 84 A.3d 657, 664-65 (Pa. 2014) (citations and
quotation marks omitted). See also Commonwealth v. DiStefano,
265
A.3d 290, 297 (Pa. 2021) (appellant cannot meet heavy burden of establishing
abuse of discretion by simply persuading appellate court that it may have
reached different conclusion than trial court).
As to the admissibility of evidence at trial, it is well-established that:
All relevant evidence is admissible, except as otherwise provided
by law. Evidence that is not relevant is not admissible. Evidence
is relevant if it logically tends to establish a material fact in the
case or tends to support a reasonable inference regarding a
material fact. Even if evidence is relevant, the court may
nonetheless exclude it if its probative value is outweighed by a
danger of unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.
Commonwealth v. Gross, 241 A.3d 413, 418-19 (Pa. Super. 2020)
(citations and quotation marks omitted).
Our Supreme Court has explained that, pursuant to Rule 404, evidence
of other crimes, wrongs, or other acts is inadmissible merely to prove a
defendant’s bad character or criminal propensity. See Hairston, 84 A.3d at
665.
[T]he purpose of this rule is to prevent the conviction of an
accused for one crime by the use of evidence that he has
committed other unrelated crimes, and to preclude the inference
that because he has committed other crimes he was more likely
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to commit that crime for which he is being tried. The presumed
effect of such evidence is to predispose the minds of the jurors to
believe the accused guilty, and thus effect[ive]ly to strip him of
the presumption of innocence.
Commonwealth v. Cox, 115 A.3d 333, 337 (Pa. Super. 2015), quoting
Commonwealth v. Spruill,
391 A.2d 1048, 1049-50 (Pa. 1978).
Nevertheless, “[s]uch [other crimes, wrongs, or other acts] evidence is
admissible . . . when relevant for another purpose, including motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake.” Hairston, 84 A.3d at 665 (citations omitted). Indeed, Rule
404(b)(2) provides that 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). “Unfair
prejudice means a tendency to suggest decision on an improper basis or to
divert the jury’s attention away from its duty of weighing the evidence
impartially.” Commonwealth v. Green,
271 A.3d 393, 402 (Pa. Super.
2021) (citation and quotation marks omitted).
The comment to Rule 404(b)(2) explains that the rule “contains a non-
exhaustive list of purposes, other than proving character, for which a
person’s other crimes, wrongs, or acts may be admissible.” Pa.R.E. 404(b)(2),
comment (emphasis added). As to the timing of the other acts sought to be
introduced, we note, “Rule 404(b) does not distinguish between prior and
subsequent acts.” Commonwealth v. Wattley, 880 A.2d 682, 685 (Pa.
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Super. 2005). Pennsylvania courts have recognized various other permissible
“purposes” for which the other acts evidence may be admissible; however,
even though exceptions to Rule 404(b) exist, those exceptions “cannot be
stretched in ways that effectively eradicate the rule.” Commonwealth v.
Yocolano, 169 A.3d 47, 58 (Pa. Super. 2017) (citation omitted).
First, Pennsylvania courts have recognized an exception to Rule 404(b)
for proving the defendant’s consciousness of guilt. See Commonwealth v.
Ivy, 146 A.3d 241, 251 (Pa. Super. 2016). Further, our Supreme Court has
noted that flight may constitute circumstantial evidence of consciousness of
guilt. See Commonwealth v. Housman,
986 A.2d 822, 831 (Pa. 2009);
see also Commonwealth v. Jorden,
482 A.2d 573, 579 (Pa. Super. 1984)
(“evidence of flight is admissible as indicative of a defendant’s consciousness
of guilt”).
Indeed, our Supreme Court has clarified that a trial court correctly
informs the jury of the law by instructing that:
[w]hen a person commits a crime, knows that he is wanted
therefor, and flees or conceals himself, such conduct is evidence
of consciousness of guilt, and may form the basis of a conviction
in connection with other proof from which guilt may be inferred.
It is permissible to infer that a defendant knows he is wanted for
a crime from the circumstances attendant to his flight.
Commonwealth v. Rios, 684 A.2d 1025, 1035 (Pa. 1996) (citations,
quotation marks, and brackets omitted).
Also, our Supreme Court has previously explained that “[a]ny attempt
by a defendant to interfere with a witness’s testimony is admissible to show a
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defendant’s consciousness of guilt.” Rega, 933 A.2d at 1009; see also
Commonwealth v. Johnson,
838 A.2d 663, 680 (Pa. 2003);
Commonwealth v. Goldblum,
447 A.2d 234, 243 (Pa. 1982) (evidence of
defendant’s attempts to have witness killed admissible for purpose of proving
defendant’s consciousness of guilt).
Second, Pennsylvania law recognizes the “res gestae” exception to Rule
404(b), “permitting the admission of evidence of other crimes or bad acts to
tell ‘the complete story.’” Hairston, 84 A.3d at 665 (citations omitted). Other
acts evidence is admissible under the res gestae exception where it “formed
a part of a chain, or was one of a sequence of acts, or became part of the
history of the event on trial, or was part of the natural development of the
facts.” Commonwealth v. Brown,
342 A.2d 84, 90 (Pa. 1975) (citation and
quotation marks omitted). See also Commonwealth v. Murphy,
657 A.2d
927, 932 (Pa. 1995) (evidence showing defendant killed witness who saw
defendant commit another murder so interwoven with facts of case as to be
admissible under res gestae exception).
Third, another recognized exception to the rule prohibiting admission of
evidence of other crimes or bad acts is for evidence of
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 to establish the identity of the person
charged with the commission of the crime on trial[—]in other
words where there is 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.
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[E]vidence of other crimes is said to be admissible to prove other
like crimes by the accused so nearly identical in method as to
earmark them as the handiwork of the accused. Here[,] 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 and distinctive as to be like a
signature.
Commonwealth v. Roney, 79 A.3d 595, 606 (Pa. 2013) (citations, quotation
marks, and brackets omitted).
Evidence of a common scheme, plan, or design may be relevant to
establish any element of a crime. See Commonwealth v. Einhorn, 911
A.2d 960, 967 (Pa. Super. 2006). When considering whether the common
scheme, plan, or design exception applies, the trial court must initially
examine the details and surrounding circumstances of the other act(s) and
the current criminal incident to determine whether the evidence reveals the
sufficient similarities and details in the acts committed. See Commonwealth
v. O’Brien,
836 A.2d 966, 969, 971 (Pa. Super. 2003) (noting that relevant
factors for consideration in determining applicability of common scheme, plan,
or design exception include: habits or patterns of action or conduct
undertaken by perpetrator to commit crime, and time, place, and types of
victims typically chosen by perpetrator).
We have previously specified certain factors that the court should
consider when evaluating the similarities between the acts, including the
elapsed time between the acts, the geographical proximity of the locations of
the acts, and the manner in which the acts were performed or committed.
See Commonwealth v. Cain, 29 A.3d 3, 7 (Pa. Super. 2011); see also
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Commonwealth v. Newman, 598 A.2d 275, 279 (Pa. 1991) (commonality
of roles and situs establishes common design and court must evaluate shared
details, including perpetrator’s actions, location of acts, and commonality of
relationship between defendant and victims).
Here, initially, we agree with the Commonwealth that the evidence of
Carter’s flight to Georgia may be offered into evidence for permissible
purposes that are recognized under Rule 404(b)(2), including to prove
consciousness of guilt, see Ivy, supra;Housman, supra, and as part of the
res gestae of Hines’ death. See
Brown, supra. We also conclude that, when
reviewed on its own, the probative value of the evidence of Carter’s flight to
Georgia clearly outweighs any potential for unfair prejudice, and we discern
no unfair prejudice. See Pa.R.E. 404(b)(2); see also Commonwealth v.
Coyle,
203 A.2d 782, 789-90 (Pa. 1964) (evidence of flight had “clear and
definite connection” to murder charged and was admissible to “show []
consciousness of guilt of the [initial] killing and the means employed to escape
arrest,” such that “the jury had the right to hear and consider this evidence”).
Accordingly, we conclude that the trial court clearly erred in ruling all evidence
of Carter’s flight to Georgia is inadmissible under Rule 404(b)(2). See
Hairston,
84 A.3d at 664-65.
Next, we further agree with the Commonwealth that under Rule
404(b)(2), evidence of Carter shooting Dante may be offered for the
permissible purpose of proving Carter’s consciousness of guilt, see
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Goldblum, supra, and as part of the res gestae of the case. See
Murphy,
supra.
We also agree with the Commonwealth that the evidence of Dante’s
shooting may be admitted for the permissible purpose of proving Carter’s
common scheme, plan, or design. See Roney, supra. Considering the
relevant factors, see O’
Brien, supra;Cain, supra;Newman, supra, there
are significant similarities between Hines’ and Dante’s shootings including
that: (1) they both occurred in a moving vehicle; (2) the victims were shot
in the head from behind while seated in the front passenger seat; (3) the
shootings took place seemingly spontaneously; (4) the shooter took or
attempted to take the wheel of the vehicle immediately after the shootings;
(5) the shootings occurred mere days apart; and (6) the victims are
individuals who are close to Carter.
We also note that the trial court erred in concluding that two bad acts
are insufficient to establish the common scheme, plan, or design exception.
See Roney, supra at 606 (exception applies to “the commission of two or
more crimes so related to each other that proof of one tends to prove the
others”) (emphasis added). See also Commonwealth v. Tyson,
119 A.3d
353, 360-63 (Pa. Super. 2015) (permitting single prior rape to establish
common scheme, plan, or design).
Nevertheless, we cannot conclude that the trial court abused its
discretion in finding that evidence of the Atlanta shooting has potential for
unfair prejudice that outweighs its probative value. See Pa.R.E. 404(b)(2).
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With the introduction of evidence of the Atlanta shooting—evidence the
Commonwealth claims establishes that Carter shot and attempted to
murder his own brother—the record supports the trial court’s finding that
there is a critical danger that the jury could confuse the issues with Hines’
alleged murder, convict Carter on an improper basis relating to the fact that
Carter attempted to kill Dante, or the jury might have been diverted from its
duty of impartially weighing the evidence relating to Hines’ death.
Accordingly, we conclude that the trial court did not abuse its discretion in
excluding all evidence of Dante’s shooting in Georgia.12 See Hairston, 84
A.3d at 664-65.
Although we have concluded that the evidence of Carter’s flight to
Georgia is admissible under Rule 404(b)(2), we must evaluate the trial court’s
further determination that this evidence is, on balance, more unfairly
prejudicial than probative and therefore inadmissible pursuant to Rule 403.
See Pa.R.E. 403; see also Gross, 241 A.3d at 418-19. Here, we conclude
the trial court erred in excluding all evidence of Carter’s flight to Georgia
under Rule 403 because, as we have already found above in analyzing
admissibility under Rule 404(b)(2), the probative value of the evidence of
Carter’s flight outweighs any potential for unfair prejudice to him.
____________________________________________
12 We note that since evidence of Dante’s shooting is inadmissible, evidence
proving that Dante “survived” the shooting is also inadmissible insofar as such
evidence rests upon the presumption that an event was “survived.” However,
by this ruling, the Commonwealth is not prohibited from establishing that
Dante is ignoring subpoenas to appear in this case. See N.T. Motion In Limine
Hearing, 3/31/23, at 14.
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Accordingly, the probative value of this evidence cannot be outweighed by a
danger of unfair prejudice. See Pa.R.E. 403.
In sum, we conclude that both evidence of a defendant’s flight as well
as evidence of the defendant’s attempts at interfering with witness testimony
are admissible under Rule 404(b) for the purposes of showing the defendant’s
consciousness of guilt and as part of the res gestae of the case. We also
conclude that, here, the evidence of the Atlanta shooting satisfies the common
scheme, plan, or design exception to Rule 404(b). Further, under these
circumstances, we find that the trial court’s conclusion that the evidence of
witness interference was inadmissible under Rule 404(b) due its potential for
unfair prejudice is supported by the record. However, we conclude the trial
court erred by excluding evidence of the defendant’s flight under Rules 404
and 403.
Order affirmed in part and reversed part. Case remanded for further
proceedings not inconsistent with this decision. Jurisdiction relinquished.
DATE: 07/25/2024
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