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604 Pa. 596

986 A.2d 822

Commonwealth v. Housman

Supreme Court of Pennsylvania

Decided December 29, 2009

Supreme Court of Pennsylvania · decided 2009-12-29

Cited by 42 later decisions (2 by the Supreme Court) — most recently October 2025 · most notably Commonwealth v. Lesko (2011), Commonwealth v. Spotz (2014)

40 state decisions

Key passage — most relied on by later courts

“Where the defendant moves to sever offenses not based on the same act or transaction that have been consolidated in a single indictment or information, or opposes joinder of separate indictments or informations, the [trial] court must ... determine: [1] whether the evidence of each of the offenses would be admissible in a separate trial for the other; [2] whether such evidence is capable of separation by the jury so as to avoid danger of confusion; and, if the answers to these inquiries are in the affirmative, [3] whether the defendant will be unduly prejudiced by the consolidation of offenses.”

quoted by 1 later decision, including 2013 Pa. Super. 19 - Commonwealth v. Serrano

Relies on Bruton v. United States · Jackson v. Denno · Richardson v. Marsh

Good law ✅— No negative treatment on recordhow we know

Decided 2009-12-29

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Justice BAER,

¶1dissenting.

¶2The Majority affirms the direct appeal from a sentence of death imposed by the Cumberland County Court of Common Pleas following Appellant William H. Housman’s conviction for the first-degree murder of Leslie White and the related crimes of kidnapping, theft by unlawful taking or disposition, unlawful restraint, abuse of corpse, and criminal conspiracy. I believe *635the trial court erred in denying Appellant’s motion to sever his trial from that of his co-defendant, Beth Ann Markman, because of the prejudice that resulted to Appellant from the introduction of Markman’s evidence, and that the error was not harmless. Accordingly, I would reverse the conviction and remand for a new trial.

¶3As the Majority notes, Appellant’s counsel learned pre-trial that Markman intended to offer the defense of duress and evidence in support thereof at trial, arguing that she suffered long-term physical and emotional abuse at the hands of Appellant. Appellant’s counsel filed a motion for reconsideration of the denial of severance, arguing that the evidence of abuse Markman intended to introduce at trial was not legally or factually relevant to Appellant’s guilt in this capital case and would, in fact, be severely prejudicial. The evidence that counsel anticipated Markman presenting, and which counsel brought to the court’s attention, included statements from a neighbor relating that Markman described how Appellant had wrapped a telephone cord around her neck, that she saw Markman with bruises and black eyes which were attributed to Appellant, and that she observed Appellant trying to sabotage Markman’s car. Another neighbor was to testify to hearing constant fighting between Markman and Appellant, and a friend and neighbor was to relate that Markman had told her that Appellant had tortured Markman for an entire night, had taken a knife and cut her down the chin, neck, stomach, and legs, had gagged her with underwear and tied her up, and that the neighbor had seen the cuts and bruises that had resulted from these attacks.

¶4A different friend was to testify that Markman had complained to her about the abuse, and she had suggested that Markman obtain a protection from abuse order. A colleague of Markman’s was to testify that Markman complained of abuse by Appellant and often came to work black and blue. Another friend was to testify that one time when Appellant got angry with Markman, he threatened to cut her brake lines, and another time stated that he wanted to kill her. Counsel further argued that the prejudicial effect of this evidence of abuse, which would not be admissible against Appellant in a *636separate trial for the alleged murder, could not be cured by any cautionary instruction. The trial court denied the motion for reconsideration, and, as expected, Markman introduced at trial all of the foregoing evidence of Appellant’s alleged abuse of her, along with additional evidence of such abuse. Importantly, the trial court declined to instruct the jury during its charge regarding Markman’s defense of duress.

¶5Appellant presently argues that his trial should have been severed from Markman’s because her antagonistic defense of duress, though ultimately disallowed by the trial court, permitted Markman to present substantial prejudicial evidence of his uncharged conduct that would not have been admissible if he was tried separately. Appellant asserts that, consequently, the joint trial resulted in the same jury charged with deciding his fate being subjected to days of testimony and argument of his alleged physical, verbal, and other abuse of Markman, painting him as a sadistic monster with evidence irrelevant to the murder for which he was on trial. Appellant argues that the resulting prejudice was even more acute, if possible, because the trial court ultimately refused to charge the jury on Markman’s defense of duress, therefore allowing it to hear the evidence without an instruction defining the context for which it was offered. The Majority rejects Appellant’s argument.

¶6Reading Rules 5821 and 5832 of the Rules of Criminal Procedure together, it is apparent that joint trials of co-*637defendants are proper where (1) the defendants are alleged to have participated in the same act or transaction or series of acts or transactions, and (2) a defendant will not be prejudiced by being tried jointly with the other defendant. There is no dispute here regarding whether Markman and Appellant participated in the same act or transaction. The question here is one of prejudice, and it is on that question that I respectfully but strongly disagree with the Majority.

¶7The question of prejudice involves a balancing test, where interest in judicial economy is balanced against the need to minimize prejudice against a defendant. Commonwealth v. Patterson, 519 Pa. 190, 546 A.2d 596 (1988). Generally, joint trials are encouraged when judicial economy will be promoted by avoiding the expensive and time-consuming duplication of evidence. Commonwealth v. Jones, 542 Pa. 464, 668 A.2d 491 (1995). In addition, where, as here, conspiracy is charged, joint rather than separate trials are preferred. Commonwealth v. Chester, 526 Pa. 578, 587 A.2d 1367, 1372 (1991); Jones, 668 A.2d at 501; Patterson, 546 A.2d 596.

¶8Although judicial economy would be served by a joint trial, that is only one side of the equation. “This interest in judicial economy must be balanced against the need to minimize prejudice that may be caused to a defendant by consolidation.” Patterson, 546 A.2d at 600. Where the defendant can show that he will be prejudiced by a joint trial, severance may be proper. Jones, 668 A.2d at 501. The “prejudice” of which Rule 583 speaks is not the ordinary prejudice that a defendant suffers from being charged with a crime; rather, the prejudice of Rule 583 is “that which would occur if the evidence tended to convict appellant only by showing his propensity to commit crimes, or because the jury was incapable of separating the evidence or could not avoid cumulating the evidence.” Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491, 499 (1988). The potential for prejudice resulting from a joint trial exists where the evidence introduced against one defendant would be inadmissible against the other. Commonwealth v. Lambert, *638529 Pa. 320, 603 A.2d 568, 573 (1992) (recognizing that separate trials for co-defendants should be granted where the evidence is such that, while it will be introduced against one defendant, it will not be admissible against others).

¶9The Rules of Evidence prohibit introduction of prior bad acts to demonstrate conformity. See Pa.R.E. 404(b)(1) (“Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith”). Normally, in criminal trials, evidence of prior crimes or bad acts committed by a particular defendant is not admissible and any reference to it constitutes reversible error. See Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373, 375 (1972) (noting that the prosecution may not introduce evidence of the defendant’s prior criminal conduct as substantive evidence of his guilt on the present charge). The 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 to commit that crime for which he is being tried. Commonwealth v. Trowery, 211 Pa.Super. 171, 235 A.2d 171, 172 (1967); see also Commonwealth v. Malloy, 579 Pa. 425, 856 A.2d 767 (2004) (observing that evidence of prior bad acts are not admissible for the sole purpose of demonstrating a criminal defendant’s propensity to commit crimes); Commonwealth v. Fisher, 564 Pa. 505, 769 A.2d 1116, 1128 (2001), cert. denied 535 U.S. 906, 122 S.Ct. 1207, 152 L.Ed.2d 145 (2002) (same).

¶10Evidence of Appellant’s abuse of Markman, introduced by Markman in her defense, would not have been admissible in a separate trial because it consisted of evidence of prior uncharged conduct and bad acts and tended to demonstrate Appellant’s criminal propensity, thereby prejudicing him. Markman attempted to paint Appellant as an abusive boyfriend who conceived of and directed the murder of his former girlfriend in the same manner Appellant had previously abused Markman. Markman’s defense required her to demonstrate Appellant’s abusive propensity and violent characteristics. Thus, where she was tried with the man whom she *639accused of such extensive abuse, the jury was clearly exposed to the facts averring that Appellant had previously committed violent abuse against one girlfriend, Markman, even going so far as to choke her with wire, the exact method by which he carried out the murder of his other girlfriend, the victim. I believe, therefore, that Appellant demonstrated that the evidence of abuse Markman intended to offer and did, in fact, present, was overwhelmingly and unduly prejudicial.3

¶11This situation is distinguishable from that presented in Chester, 587 A.2d 1367, on which the Majority relies, and in Commonwealth v. King, 554 Pa. 331, 721 A.2d 763, 771 (1998), and Commonwealth v. Marinelli, 547 Pa. 294, 690 A.2d 203, 213 (1997), on which the Commonwealth relies. In those cases, the evidence admitted in the joint trial would have been admissible in a separate trial. Therefore, there was no need to analyze the prejudicial effect of such evidence. Similarly, I do not believe that here we have mere fingerpointing, as the Majority does. Rather, we have an entire trial tainted by the co-defendant’s defense, received -without context, demonstrating Appellant’s systematic, unrelenting, abusive, criminal behavior to one girlfriend in a trial for the murder of a second *640girlfriend. Such evidence amounts to far more than mere suggestions of intimidation. See Majority Op. at 616-18, 986 A.2d at 834-35.

¶12In Zafiro v. United States, 506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993), the high Court opined that when defendants have properly been joined, a district court should only grant severance if there is a serious risk that a joint trial “would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” Id. at 539, 113 S.Ct. 933. The Court went on to say that where evidence is admitted at a joint trial that would not be admissible in a separate trial, a defendant might be prejudiced:

Such a risk might occur when evidence that the jury should not consider against a defendant and that would not be admissible if a defendant were tried alone is admitted against a codefendant. For example, evidence of a codefendant’s wrongdoing in some circumstances erroneously could lead a jury to conclude that a defendant was guilty. When many defendants are tried, together in a complex case and they have markedly different degrees of culpability, this risk of prejudice is heightened. Evidence that is probative of a defendant’s guilt but technically admissible only against a codefendant also might present a risk of prejudice. Conversely, a defendant might suffer prejudice if essential exculpatory evidence that would be available to a defendant tried alone were unavailable in a joint trial. The risk of prejudice will vary with the facts in each case, and district courts may find prejudice in situations not discussed here. When the risk of prejudice is high, a district court is more likely to determine that separate trials are necessary, but, as we indicated in Richardson v. Marsh, less drastic measures, such as limiting instructions, often will suffice to cure any risk of prejudice. [See 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987) ].

¶13Zafiro, 506 U.S. at 539, 113 S.Ct. 933 (internal citations omitted).

¶14I believe that this case is representative of those situations in which the U.S. Supreme Court thought the risk of prejudice *641is high. In fact, it would be difficult to imagine a situation more prejudicial to a defendant than one in which the evidence that would be inadmissible in a separate trial is admitted not against the codefendant but, rather, by the codefendant, in an attempt to shift the blame for the murder of Appellant’s former girlfriend from herself to Appellant by demonstrating that Appellant forced her participation in the murder. This evidence of wrongdoing on the part of Appellant, presented as part of the co-defendant’s defense, could “lead the jury to conclude that a defendant is guilty” even more so, I believe, than evidence of other wrongdoing on the part of a co-defendant. Zafiro, 506 U.S. at 539, 113 S.Ct. 933. See also Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 (1981) (applying Pa.R.Crim.P. 582(A)(1) to find that judicial economy cannot be elevated above the integrity of the factfinding process, and holding that to allow inadmissible evidence that is “irrelevant and prejudicial” to influence a verdict in the name of judicial economy is “abhorrent to our sense of justice.”); Foster v. Kentucky, 827 S.W.2d 670 (Ky.1991) (holding that in a joint trial where a co-defendant sought to advance the defense of coercion based on abuse by the appellant, the trial court properly precluded evidence of uncharged criminal misconduct by the appellant, but that in the penalty phase, the trial court erred by permitting such evidence of abuse, finding that the evidence was highly prejudicial and required severance).

¶15Generally, an instruction to the jury to consider evidence only with respect to the defendant against whom it is offered is sufficient to remove any potential prejudice. Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987); Commonwealth v. Travers, 768 A.2d 845, 847 (Pa. 2001). Therefore, “[w]hen charges against several defendants are consolidated for trial ... the trial judge must exercise extreme care that evidence admissible against one defendant is not improperly received against another.” Commonwealth v. Scarborough, 313 Pa.Super. 521, 460 A.2d 310, 313 (1983). Although in some situations a cautionary instruction is not sufficient to cleanse prejudice, these situations are the excep*642tion, not the rule. See Richardson, 481 U.S. 200, 107 S.Ct. 1702; Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (“Not every admission of inadmissible hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions ... there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.”).

¶16Having chosen to deny the motion for severance and permit admission of evidence of abuse, the trial court could have provided jury instructions in an attempt to overcome the extensive prejudicial effect of the testimony that was ultimately presented by Markman.4 That evidence, as predicted in Appellant’s motion to sever, included testimony from Deborah Baker, a friend of Markman, that she saw bruises on Mark-man beginning in 1999, which became progressively worse into the summer of 2000, and that Markman was “scared to death” of Appellant. Several of Markman’s colleagues testified that Markman indicated that her boyfriend was abusive, and that Markman came to work upset and with bruises and black eyes. One colleague testified that she saw Markman on one occasion with bruises on her ears and arms, a black eye, and, on another occasion, with bruises all over her body, which Markman attributed to Appellant’s abuse. When Markman tried to evict Appellant from the trailer, this witness was there to ensure Markman did not get hurt.

¶17The manager of the trailer park where Markman and Appellant lived testified that when Markman wanted to remove Appellant’s name from the lease because they were not getting along, Appellant hit Markman in the mouth and nose. The manager also testified to seeing bruises on Markman, and to witnessing a fight on October 2, 2000, to which police responded. An emergency room nurse testified that Mark-*643man came to the hospital on August 10, 2000, for treatment of two black eyes and complaining of dizziness and nausea. A neighbor in the toiler park testified that she saw Markman with black and blue marks and significant swelling on her face. Another neighbor testified to witnessing Appellant put Mark-man in a choke hold, bang her head on the wall, and throw her to the floor. Another neighbor, who also saw bruises all over Markman, testified that Markman’s eyes were so black that Appellant called her a raccoon.

¶18Markman herself then testified regarding her relationship with Appellant. Shortly after Markman took the stand and began to testify about the abuse she suffered, Appellant’s counsel objected to this testimony. The prosecutor then indicated the he did not think the evidence was relevant to the issue of Appellant’s guilt, and requested a cautionary instruction. The trial court instructed the jury as follows:

Ladies and gentlemen, you have heard before from various witnesses, and I guess you are going to hear again, testimony regarding possible abuse done by [Appellant] to Markman.
You are allowed to hear this evidence for only one specific limited purpose, that being to assist you in determining the effect it may have had in regard to Markman’s claim that she was coerced to commit criminal acts.
I specifically tell you that under the law that you may not consider this evidence or this testimony as evidence that [Appellant] has bad character or a propensity to commit crimes.

¶19N.T. 10/30/2001 at 889-90. Counsel for Appellant objected that he did not believe the cautionary instruction was adequate. Id.Beyond this isolated statement, the court gave no further instruction in this regard, notably not again mentioning the subject during its charge to the jury.

¶20Markman proceeded to testify that Appellant’s abuse began early in their relationship with pushing and shoving. She testified that in 1999, Appellant threw her to the floor in front of her daughter. The abuse escalated when Appellant began *644punching Markman in the side of her head, and began regularly to grab and squeeze her arms, and grab her by the throat and push her against the wall. Beginning in late 1999 and escalating into 2000, Appellant started hitting Markman more with his fists on her head and body, causing bruising and swelling. In the summer of 2000, the abuse got worse. When asked what he would do, Markman replied: “Pushing, grabbing me by the throat, put me up against the wall. Grab me around my throat. Like this (indicating) like a half Nelson type thing. Flip me over to the floor. While he had his hand around my neck, he would have his hand covering my nose and my mouth.” He would threaten to snap her neck if she was not quiet. Markman testified that Appellant threatened her life several times, and once caused her to go to the emergency room because of bruises to the head, black and blue marks, and dizziness. She also testified that she attempted to obtain a protection from abuse order against Appellant but did not follow through for fear of Appellant’s anger. Markman further testified that during a fight over Appellant’s relationship with the victim, Leslie White, Appellant pinned her against the wall, grabbed her, put wire around her throat, and threatened her. He told her that it was her fault he was the way he was, and proceeded to carry her into the bedroom and rape her.

¶21Markman continued her testimony, detailing the events that happened in the days leading to the murder. She explained that on October 2, 2000, just two days before the murder, when she decided to evict Appellant from the trailer, he pulled wires from her car. A day or two later, she returned to her trailer and found Appellant inside. He grabbed her by the throat, squeezed, and held a knife against her throat, until she began to black out. He used the knife to cut off her clothes, ran the knife down her body, and raped her. When he was finished, according to Markman’s testimony, he tied her up, stuffed underwear in her mouth, and let her sleep. He threatened that if she told anyone about what he had done, he would “put a .45 in your [Markman’s] head.” Markman testified that Appellant told her he was leaving, but before he *645left he wanted Markman to drive him to a phone to make a phone call. During the trip to the convenience store from which the call to White was placed, Markman testified that Appellant held a knife to her and forced her to drive him. Markman proceeded to detail how Appellant forced her to participate in murdering White, which, as discussed above, she testified that she participated in out of fear of Appellant. At the conclusion of Markman’s defense, the trial court inexplicably concluded that the evidence did not support the defense of duress, and declined to instruct the jury accordingly.

¶22In light of the extensive evidence of abuse, I would find that the passing cautionary instruction, delivered mid-trial at the request of the prosecutor, was wholly insufficient to ameliorate the extreme prejudice that resulted from Markman’s defense of duress, copiously delivered during the joint trial. In this case, where Appellant was on trial for murdering his former girlfriend by strangling her with his arm and speaker wire, and his current girlfriend was permitted to introduce unrebutted evidence of Appellant’s abuse, including Appellant’s choking her with his arm and wire, considering all of the circumstances under which the irrelevant evidence was given and its probable effect on the jury, Commonwealth v. Richardson, 496 Pa. 521, 437 A.2d 1162, 1165 (1981), including the nature of the crime, Commonwealth v. Morris, 513 Pa. 169, 519 A.2d 374, 377 (1986), the trial court’s brief cautionary instruction during Markman’s testimony was insufficient to cure the prejudice caused by such evidence. See Bruton, 391 U.S. 123, 88 S.Ct. 1620 (concluding that admission of co-defendant’s confession that implicated defendant at joint trial constituted prejudicial error even though trial court gave clear, concise and understandable instruction that confession could only be used against codefendant); Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) (holding that reversal follows if a confession admitted in evidence is found to be involuntary, regardless of possibility that jury correctly followed instructions and determined confession to be involuntary); Commonwealth v. Chacko, 480 Pa. 504, 391 A.2d 999 (1978) (where jury’s reaction to photographic evi*646dence was more likely to be emotional rather than rational, the trial judge’s cautionary instructions to jury on admitting photographs could not cure prejudicial effect); Commonwealth v. Archambault, 448 Pa. 90, 290 A.2d 72, 75 (1972) (holding that where the judge told the jury that it would be a miscarriage of justice not to find the defendant guilty, cautionary instructions that the jury is the final arbiter of the verdict were insufficient).

¶23Finally, I do not believe that the trial court’s failure to sever Appellant’s trial from Markman’s was harmless error. See Markman, 916 A.2d at 603 (defining harmless error as (1) the error did not prejudice the defendant or the prejudice was de minimus; (2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict). As explained, Appellant was prejudiced by the joint trial and the subsequent admission of evidence by Markman demonstrating Appellant’s criminal propensity, and I do not believe the prejudice can be considered de minimus, as the Majority concludes. Rather, Markman’s entire defense was premised upon portraying Appellant as violent and abusive.

¶24Moreover, the erroneously admitted evidence of abuse was not merely cumulative of other properly presented evidence. Without the evidence of abuse presented by Markman the jury would not have been made aware of Appellant’s alleged abusive propensity. Finally, the remaining uncontradicted evidence of guilt was not so overwhelming and the error’s prejudicial effect was not so insignificant by comparison that the error could not have contributed to the verdict. Appellant’s defense, as articulated to the jury through the reading of his confession, was that Appellant lacked the specific intent to kill and acted only because Markman coerced him. Thus, the issue was whether Appellant acted with the specific intention to bring about the kidnapping and murder of White. His *647credibility in this regard would determine whether the jury found him guilty of first degree murder. His position that he was coerced by Markman could not stand next to the extensive portrayal by Markman of Appellant as abusive and the mastermind of the murder. In this regard, in Markman’s appeal, we held that Markman was prejudiced by the joint trial with Appellant due to the introduction of Appellant’s redacted statement. Markman, 916 A.2d at 603. In reaching this conclusion, we specifically found that Markman’s and Appellant’s defenses were irreconcilable:

[F]or purposes of ascertaining [Markman’s] guilt, the central issue as to both the murder and the kidnapping was whether, and to what extent, [Markman] acted with an intention to bring about the kidnapping and killing of White. The degree to which the jurors would believe [Markman’s] account of the underlying events, as recited both in her confession and in her trial testimony, would therefore determine whether they would find her guilty of these crimes, including whether they would conclude that she acted with a specific intent to kill. On this topic, Housman’s confession represented the only proof directly refuting [Markman’s] claim that Housman forced her against her will to harm White. Indeed, [Markman’s] and Housman’s accounts of the central facts were irreconcilable. In contrast to [Mark-man’s] account, Housman’s confession painted [Markman] as the individual who directed all of the crucial events to accomplish the binding and killing of White.

¶25Markman, 916 A.2d at 603.

¶26Accordingly, because I believe that the trial court erred in denying Appellant’s motion to sever, and that the trial court’s cautionary statement was insufficient to cure this harmful error, I would remanded for a new trial, and would not reach the remaining issues addressed by the Majority.5

¶27. Rule 582. Joinder — Trial of Separate Indictments or Informations

A) Standards
(1) Offenses charged in separate indictments or informations may be tried together if:
(a) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion; or
(b) the offenses charged are based on the same act or transaction.
(2) Defendants charged in separate indictments or informations may be tried together if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses.

¶28Pa.R.Crim.P. 582(A).

¶29. Pa.R.Crim.P. 583 provides "[t]he court may order separate trials of offenses or defendants or provide other appropriate relief, if it appears *637that any party may be prejudiced by offenses or defendants being tried together.”

¶30. The Majority concludes that evidence of Appellant’s abuse of Mark-man would have been admissible in a separate trial against Appellant to rebut his argument that he lacked the specific intent to kill the victim. I disagree. If, in separate trial, the Commonwealth sought to respond to counsel’s argument that Appellant lacked the specific intent to kill because Markman coerced him with the threat of force, the Commonwealth could have fairly have done so with evidence that Appellant was not under duress when he killed the victim. It could have, for example, called Markman to refute Appellant’s argument that she coerced his compliance. It could not have paraded in witness after witness over the course of several days to testify to Appellants’ long term, abusive conduct towards Markman. As discussed above, the prejudicial impact of such evidence outweighs its probative value. See Pa.R.E. 403 ("Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.’’); Commonwealth v. Wright, 599 Pa. 270, 961 A.2d 119, 151 (2008) (citing the comment to Rule 403 that "Unfair prejudice” means a tendency to suggest decision on an improper basis or divert the jury's attention away from its duty of weighing the evidence impartially.).

¶31. Given the extreme prejudice to Appellant from this pervasive testimony, I am unwilling to conclude that a curative jury instruction would have cured the error. As such instruction was not even given, it is unnecessary to confront that question.

¶32. Appellant further argues that he was prejudiced in the penalty phase by the trial court's decision not to sever and to allow additional evidence by Markman regarding Appellant's abuse. Appellant specifically refers to Markman's expert testimony regarding the trauma Mark-man endured from Appellant. I do not believe the Majority sufficiently addresses this argument, and, as expressed infra, I am skeptical that the *648trial court's penalty phase instruction could have cured the prejudice to Appellant. As I would remand for a new guilt-phase trial, I would grant Appellant a new penalty phase proceeding.

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