Commonwealth v. Hicks, C., Aplt.

[J-81-2016][M.O. – Dougherty, J.]

IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 718 CAP : Appellee : Appeal from the Judgment of Sentence : entered on 1/6/15 in the Court of v. : Common Pleas, Monroe County, : Criminal Division at No. CP-45-CR- : 0000391-2008 CHARLES RAY HICKS, : : Appellant : ARGUED: September 13, 2016

CONCURRING OPINION

CHIEF JUSTICE SAYLOR DECIDED: March 28, 2017

I join Parts I, II and IV of the majority opinion and concur in the result relative to the balance.

As to Part III, I agree with Justice Donohue that various majority opinions of this Court, like the decisions of a number of other courts, have incorrectly blended various distinct grounds for relevance associated with proffered, uncharged misconduct. See Dissenting Opinion, slip op. at 8 (Donohue, J.) (describing a “decades-long misunderstanding about what type of connection is truly required for the purpose of proving a common scheme”).1 As Justice Donohue also ably explains, either as a consequence or in conjunction, majority opinions of this Court also have substantially diluted the putatively stringent standard associated with at least one of these, namely, proof of identity via a modus operandi theory. See Dissenting Opinion, slip op. at 15.2 My dissent in Commonwealth v. Arrington, 624 Pa. 506, 86 A.3d 831 (2014), reflects my belief that the threshold for the use of uncharged misconduct as evidence of identity should remain high, in accordance with the signature-crimes analysis related by Justice Donohue. See Dissenting Opinion, slip op. at 6-12 (Donohue, J.); accord Arrington, 624 Pa. at 555, 86 A.3d at 860-61 (Saylor, J., dissenting).3 (…continued) EVENTS §13.5 (2017) [hereinafter, LEONARD, NEW W IGMORE] (explaining the differences between the distinct bases for logical relevance underlying the separate modus operandi and common scheme or plan theories); id. §9.2 (observing that courts often mix the “common plan or scheme” ground with other admissibility routes); Edward J.

Imwinkelried, The Plan Theory for Admitting Evidence of the Defendant’s Uncharged Crimes: A Microcosm of the Flaws in the Uncharged Misconduct Doctrine, 50 MO. L.

REV. 1, 4 (1985) (indicating that courts have often misapplied the common plan theory of relevance and, more broadly, the uncharged misconduct doctrine in general); David P. Leonard, The Use of Uncharged Misconduct Evidence to Prove Knowledge, 81 NEB. L. REV. 115, 139 (2002) (opining that “[m]any courts . . . have shown a particularly strong tendency toward poorly reasoned decisions in these cases”).

I do not view the present matter, however, as one truly implicating an identity- based theory of relevance. In this regard, Appellant’s attorney conceded to the jury from the outset of the trial that Appellant was in the victim’s company at or around the time that she died and that, in the aftermath, he dismembered her body. See N.T., Nov.

5, 2014, at 61 (reflecting the concession of counsel that Appellant was guilty of abuse of corpse, including the statements that: “I’m going to tell you that Mr. Hicks put the [victim’s severed] hands in the wall” and “threw the body parts out of his car”); id. at 68 (“I’m letting you know that he dismembered her[.]”). The sole defense was a claim to the possibility of what the defense dubbed as “drug dumping,” i.e., that Appellant may have panicked when the victim purportedly died of an accidental drug overdose, and that he therefore decided to covertly dispose of her body. Id. Consequently, a main focus at trial was whether various injuries to the victim were pre-mortem or post-mortem (i.e., intentionally inflicted while Deanna Null was alive or incurred incident to the dismemberment and disposal of her body).4

(…continued) ban is to be maintained.”); Mark Cammack, Using the Doctrine of Chances to Prove Actus Reus in Child Abuse and Acquaintance Rape: People v. Ewoldt Reconsidered, U.C. DAVIS. L. REV. 355, 384 (1996) (“Similarities between crimes that are common to many criminals do not support admission under the modus operandi rule because the probability of recurrence is high.”); id. at 366 (“The greatest degree of similarity is required of evidence offered to prove identity.”).

Given this critical aspect of the case, the central relevance at trial of the evidence of Appellant’s other assaults upon women went toward negating his defense that the death was an accident. In other words, the evidence was employed by the prosecution primarily to establish the actus reus of the murder by corroborating the autopsy report and the testimony for the Commonwealth by a forensic pathologist that the victim’s death resulted from “homicidal violence” rather than a mishap. See N.T., Nov. 6, 2014, at 14-90 (testimony of Wayne K. Ross, M.D.). This focus clearly enhanced the Commonwealth’s claims of relevancy of and necessity for the evidence.5 Significantly, moreover, the logical relevance of other-bad-acts evidence -- so employed to demonstrate lack of accident -- does not depend on as great a degree of similarity, as between the charged and uncharged misconduct, as is the case under the modus operandi theory.6 Along these lines, most jurisdictions recognize the “doctrine of chances” -- also known as the “doctrine of objective improbability” -- as a theory of logical relevance that does not depend on an impermissible inference of bad character, and which is most greatly suited to disproof of accident or mistake. See, e.g., People v. Spector, 128 Cal. Rptr. 3d 31, 66–67 (Cal. Ct. App. 2011) (“There is broad consensus that similar acts evidence may be introduced on a doctrine of chances rationale to prove the defendant committed an actus reus when the defendant asserts that he did not cause the . . . harm.” (quoting Cammack, Using the Doctrine of Chances to Prove Actus Reus in Child Abuse and Acquaintance Rape, 29 U.C. DAVIS L. REV. at 386)). See generally LEONARD, NEW W IGMORE §6.3.1 (“The doctrine of chances theory in this context has been embraced by the large number of courts and commentators.” (footnotes omitted)); id.

§7.3.2.7 Application of this principle depends upon “the instinctive logical process that reasonably determines that unusual and abnormal events are unlikely to recur by chance.” People v. Everett, 250 P.3d 649, 656 (Colo. App. 2010) (citing 2 JOHN WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW §302 (Chadbourn rev. 1979)). See generally Edward J. Imwinkelried, An Evidentiary Paradox: Defending the Character Evidence Prohibition by Upholding a Non-Character Theory of Logical Relevance, The Doctrine of Chances, 40 U. RICH. L. REV. 419, 439 (2006) (explaining that the doctrine of chances focuses on the objective improbability of coincidence).

As explained by a leading commentator, per the doctrine of chances: To determine whether the asserted theory qualifies [as a non-character-based theory of logical relevance], the trial judge must trace the entire chain of inferences underlying the theory. The theory passes muster if the inferential path between the item of evidence and a fact of consequence in the case does not require any inferences as to the defendant’s personal, subjective character.

* * * [T]he proponent does not offer the evidence of the uncharged misconduct to establish an intermediate inference as to the defendant’s personal, subjective bad character.

Rather, the proponent offers the evidence to establish the objective improbability of so many accidents befalling the defendant or the defendant becoming innocently enmeshed in suspicious circumstances so frequently.

Id. at 429, 437 (emphasis added; footnotes omitted); see also Cammack, Using the Doctrine of Chances to Prove Actus Reus in Child Abuse and Acquaintance Rape, 29 U.C. DAVIS. L. REV. at 378 (explaining, “as in Wigmore’s famous example, if a hunter charged with having shot his hunting companion claims that the shooting was accidental, evidence of the defendant’s having fired at his companion on other occasions becomes admissible to disprove the claim of accident”).8 The rationale underlying the doctrine is further developed by another commentator -- and distinguished from character-based reasoning -- as follows: The reasoning of the doctrine of chances theory avoids the forbidden character-based logic, and thus is permissible under current law. It is founded on a logical inference deriving not from the personal characteristics of the actor, but from the external circumstances themselves. The inference is based on informal probability reasoning -- reasoning that does not require formal statistical proof, but only the jury's subjective evaluation of likelihood based on intuition and common experience. And in many cases, the intuitive assessment is rather compelling. Could it really be true that a person has received so many stolen vehicles without realizing -- at any point -- that they were stolen? It is thus possible for one's mind to travel from the evidence to the conclusion without relying on forbidden character reasoning or on the assumption that prior experience would have given the defendant notice of the stolen nature of vehicles obtained from a particular source or under similar circumstances.

Leonard, Use of Uncharged Misconduct Evidence, 81 NEB. L. REV. at 161-62; see also id. at 167 (approving doctrine-of-chances reasoning where it “does not involve a judgment about the defendant’s moral character, and thus does not require an inference that the defendant acted in accordance with the character trait so revealed”).9 I realize that the general restriction on employing character-based reasoning to establish guilt is recognized as a hallmark of the American system of justice. See, e.g., Cammack, Using the Doctrine of Chances to Prove Actus Reus in Child Abuse and Acquaintance Rape, 29 U.C. DAVIS. L. REV. at 357 (couching the character evidence rule as “a pillar of Anglo-American evidence law”); Benjamin Z. Rice, Comment, A Voice from People v. Simpson: Reconsidering the Propensity Rule in Spousal Homicide Cases, 29 LOY. L.A. L. REV. 939, 945 (1996) (indicating that the prohibition against character evidence originated as a response to inquisitorial practices such as those of the Star Chamber (citation omitted)). Nevertheless, there remains a material difference between the use of evidence to prove “general evil disposition” and advancement to demonstrate “the intention which composes a part of the crime,” including a lack of accident or mistake. Johns, 725 P.2d at 322 n.2 (quoting United States v. Burr, 25 F. Cas. 52, 54 (C.C.D. Va. 1807)).

Hence, I find that the doctrine of chances represents a non-character-based path of logical reasoning that sufficiently comports with the ideals underlying Rule of Evidence 404, as well as its express terms. See generally Cammack, Using the Doctrine of Chances to Prove Actus Reus in Child Abuse and Acquaintance Rape, 29 U.C. DAVIS. L. REV. at 377 (characterizing the doctrine of chances as an “alternative non-character theory of relevance” that best “captures the court[s’] intuition regarding the significance of similarity when uncharged acts are used to prove actus reus”). That the evidence might also tend to demonstrate bad character is not itself controlling, 10 but rather, implicates the additional protective measure prescribed in Rule 404(b) and otherwise. See Pa.R.E. 404(b)(2) (“In a criminal case this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice.”).

Notably, the defense may also secure limiting and cautionary instructions to guard against impermissible character-based reasoning. See, e.g., Commonwealth v. Jemison, 626 Pa. 489, 503, 98 A.3d 1254, 1263 (2014) (“Any possibility of unfair prejudice is greatly mitigated by the use of proper cautionary instructions to the jury, directing them to consider the defendant’s prior offense [for a relevant, non-character- based purpose], not as evidence of the defendant’s bad character or propensity to commit crime.”).

The decision in Spector, 128 Cal. Rptr. 3d 31, offers a salient example of the application of the doctrine of chances in the context of a a murder prosecution following the shooting death of a woman. There, the defendant claimed that the victim committed suicide or shot herself accidentally. To disprove these defense theories, per the doctrine of chances, the appellate court sanctioned the admission of evidence that the defendant had committed several previous armed assaults upon women, over a period spanning 28 years, and within a fairly discrete set of circumstances.11 Id. at 65-68

(…continued) In terms of the inclusive quality of Rule 404(b), I also note that the threshold for relevance under Rule of Evidence 401 is a relatively low one. See Pa.R.E. 401 (“Evidence is relevant if . . . it has any tendency to make a fact more or less probable than it would be without the evidence; and . . . the fact is of consequence in determining the action.”). See generally LEONARD, NEW WIGMORE §7.3.2 (“[B]ecause of the minimal definition of ‘relevant evidence’ that prevails in modern evidence law, the logic of the doctrine of chances can be applied to a wide variety of situations.”). (“[T]he evidence tended to show, by operation of the doctrine of chances, the unlikelihood that this time it was the woman, not Spector, who reached for a gun.”).

In Johns, 725 P.2d 312, the Oregon Supreme Court approved the admission of evidence of previous armed assaults in a murder prosecution in which the defendant claimed that his wife’s shooting death was an accident. One of those incidents involved a former wife and had occurred six years before the killing. See id. at 315; see also LEONARD, NEW W IGMORE §7.5.3 (crediting the logic of the Johns court, given that the defense had claimed accident, making the necessity for the evidence “more palpable” and admission “considerably easier to justify”). Although the Oregon Supreme Court acknowledged that reasonable minds could differ as to the admissibility of this evidence, it “defer[red] to the veteran trial judge who was better able to decide the evidence’s effect on the jury after hearing and observing the many witnesses throughout the lengthy trial.” Johns, 725 P.2d at 326; accord Commonwealth v. Hoover, 630 Pa. 599, 610, 107 A.3d 723, 729 (2014) (stressing the deferential abuse-of-discretion standard applied by appellate courts on review of trial-court evidentiary rulings, per which such determinations cannot be disturbed “‘merely because an appellate court might have reached a different conclusion, but [reversal] requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous,’” or a demonstration that “the law is either overridden or misapplied” (citations omitted)).

And in Douglas v. People, 969 P.2d 1201 (Colo. 1998), the Colorado Supreme Court sanctioned the admission of evidence that a defendant had previously threatened his girlfriend and a neighbor with firearms, in a case in which he had been charged with (…continued) extreme anger, and threatened the woman with a gun when she refused to do his bidding.” Spector, 128 Cal. Rptr. 3d at 73.

[J-81-2016][M.O. – Dougherty, J.] - 11 menacing with a firearm and claimed self defense. See id. at 1206;12 see also People v. Kelly, ___ N.W.2d ___, ___ & n.4, 2016 WL 5329749, n.4 (Mich. Ct. App. Sep. 22, 2016) (per curiam) (finding that a trial court had abused its discretion by excluding proposed testimony, in a sexual assault case in which the defense claimed consent, concerning seven prior assault cases occurring over 25 years on the theory that, “employing the doctrine of chances, it strikes us as extraordinarily improbable that eight unrelated women in four different states would fabricate reports of sexual assaults after engaging in consensual sex with defendant”). See generally Marjorie A. Shields, Application of “Doctrine of Chances” in Homicide, Sexual Crimes, and other Offenses Against the Person, 11 A.L.R. 7th Art. 1 (2015) (“The doctrine of chances has been used to determine that admissibility of evidence of extrinsic acts to prove intent, knowledge, or absence of mistake or accident in homicide, sexual crimes, and other crimes against the person. In other words, the more often the defendant commits the actus reus, the less is the likelihood that the defendant acted accidentally or innocently.”).

There is no question that the doctrine of chances must be applied with substantial caution, given the potential to associate the rationale with a propensity- based inference. See, e.g., LEONARD, NEW WIGMORE §7.3.2 (explaining, with reference to an example of the doctrine’s application, that, “[t]hough this is close to the forbidden character-based reasoning, it does not cross the line” (footnote omitted)).13 One court summarized this cautionary advice, and associated safeguards, as follows: At least one commentator, Professor Edward Imwinkelried, urges courts to be cautious when deciding whether to allow the prosecution to introduce evidence of other acts and rely on the doctrine of chances to prove the actus reus. This is so because “[i]f uncharged misconduct becomes routinely admissible to prove the actus reus, there will be little left to the prohibition” that such evidence cannot be used to prove that a defendant acted in conformity with his or her character.

To protect against the exception swallowing the rule, Professor Imwinkelried recommends that the trial court determine whether the prosecution has satisfied three criteria. First, is the evidence of other acts roughly similar to the charged crime? Second, does the number of unusual occurrences in which the defendant has been involved exceed the frequency rate for the general population? Third, is there a real dispute between the prosecution and the defense over whether the actus reus occurred?

People v. Everett, 250 P.3d 649, 658 (Colo. App. 2010) (quoting and citing Imwinkelried, The Use of Evidence of an Accused’s Uncharged Misconduct, 51 OHIO ST. L.J. at 589-93) (internal citations omitted).

In the present case, as previously discussed, the defense at Appellant’s trial disputed the actus reus of the murder and affirmatively claimed accident. In response, the prosecution sought to admit multiple instances in which Appellant had previously attacked women in circumstances bearing a degree of commonality. See Majority Opinion, slip op. at 21. Although I respectfully but greatly disagree with the majority’s depiction of these incidents as “strikingly similar” to the killing of Ms. Null, or as

(…continued) concluding that “[s]ince the prevailing view is logically defensible, the theory survives,” and “[d]efendant’s remedy is to request a limiting instruction cautioning the jury not to use the evidence as proof of bad character” and to “argue that the probative value of the evidence is substantially outweighed by the danger of jury confusion and unfair prejudice”).

[J-81-2016][M.O. – Dougherty, J.] - 13 reflecting a “virtual signature,” id. at 21-22, I do find them to be “roughly similar” and as substantially “fall[ing] into the same general category,” Imwinkelreid, The Use of Evidence of an Accused’s Uncharged Misconduct to Prove Mens Rea, 51 OHIO ST. L.J. at 589-90, along the lines of the Spector and Johns cases. See generally Leonard, Use of Uncharged Misconduct Evidence, 81 NEB. L. REV. at 163 (“One advantage of the doctrine of chances theory is that it does not apply only to cases in which there is remarkable similarity between the uncharged and the charged acts.”); see also supra note 6. Moreover, I conclude that there were a sufficient number of incidents to dispel the appearance of coincidence, making it less likely that accident accounted for Appellant’s undisputed involvement in the chain of circumstances giving rise to his being held to account for murder. See supra notes 8-9 and accompanying text.

Notably, although the prosecution did not raise the doctrine of chances by name, it did observe that “the need for the other crimes evidence is high in that the case against the defendant is primarily based on circumstantial evidence and the defendant has already placed [in] issue the precise cause and manner of the victim’s death.”

Offers of Proof dated Apr. 27, 2011, in Commonwealth v. Hicks, No. 391-2008 (C.P. Monroe), at ¶15 (emphasis added).14 See generally KENNETH W. GRAHAM, JR., 22B FED. PRAC. & PROC. EVID. §5247 (1st ed. 2016) (“[E]ven in cases where mistake or accident seems unlikely, the defense can raise such a claim and open the door to rebuttal by other crimes evidence.”). To the degree that the Commonwealth’s focus is viewed as distinct, an appellate court has the ability to affirm a valid verdict for any reason appearing as of record. See, e.g., Pa. Dep't of Banking v. NCAS of Del., LLC, 596 Pa. 638, 653, 948 A.2d 752, 761–62 (2008).

Here, Appellant’s history of violent attacks upon women certainly reduced the probability that, having been found to be closely associated with a badly bruised body of a woman whom the Commonwealth contended had been choked, there is an innocent explanation for his involvement prior to his admitted dismemberment of the body.

Although I agree with the courts and commentators that the distinction between this line of reasoning and an impermissible propensity-based inference may be modest, I believe that it is enough to satisfy that logical non-character-based relevance criterion and to maintain the essential guard against inquisitorial-style determinations of guilt by character.15 That said, I reiterate that Rule 404(b) requires trial courts to determine “if the probative value of the evidence outweighs its potential for unfair prejudice.” Pa.R.E.

404(b)(2). In this respect, I maintain concerns about the power of potentially inevitable character inferences associated with other-acts evidence, with requiring defendants to effectively defend mini-trials concerning collateral matters, and about the efficacy of jury instructions in this context.16 Nevertheless, as I read Appellant’s brief, the focus of his argument is upon the position that a high degree of similarity is required to establish relevance not only under modus operandi theory, but also to demonstrate lack of accident.17 Accordingly, from my point of view, my difference with such position is enough to conclude my review of the present appeal.18 Finally, I appreciate that the judicial treatment of the admission of evidence of uncharged misconduct in criminal cases has been the subject of intense and sustained critical commentary. See, e.g., Milich, The Degrading Character Rule, 47 GA. L. REV. at (“Many cases and scholarly articles have detailed the convoluted, contradictory, and absurd aspects and applications of the character rule.”); United States v. Davis, 726

(…continued) between the proper and improper use of the evidence”); David A. Sonenshein, The Misuse of Rule 404(b) on the Issue of Intent in the Federal Courts, 45 CREIGHTON L.

REV. 215, 264-67, 270-71 (2011) (discussing social science research concerning juror misuse of evidence of other misconduct and the asserted non-efficacy of limiting and cautionary instructions); Reed, Admitting the Accused’s Criminal History: The Trouble With Rule 404(b), 78 TEMP. L. REV. at 243 (indicating that “very few commentators believe that [limiting] instructions really curb the jury’s common-sense use of uncharged misconduct”).

F.3d 434, 441 (3d Cir. 2013) (observing that, “[u]ncontroversial at the time of adoption, Rule 404(b) has become the most cited evidentiary rule on appeal” (citing Thomas J.

Reed, Admitting the Accused's Criminal History: The Trouble with Rule 404(b), 78 TEMP.

L.REV. 201, 211 (2005)). See generally 2 JOHN H. W IGMORE, EVIDENCE §302 (Chadbourne rev. 1979) (highlighting, in a survey of cases, “bewildering variances of rulings in the different jurisdictions and even in the same jurisdiction”). It may well be that the interests of justice would be well served were this Court to consider revamping the present approach. See, e.g., Milich, The Degrading Character Rule, 47 GA. L. REV. at 776 (arguing that the “propensity inference is an unreliable proxy for undesirable character evidence, and efforts to faithfully apply the propensity rule often lead to confusion and frustration”); Reed, Admitting the Accused’s Criminal History, 78 TEMP. L.

REV. at 250-53 (reflecting a proposal for change).

Nevertheless, the fact of the matter is that our present rules recognize that many non-character-based theories of logical relevance may generate character-based inferences and depend on case-specific screening for prejudice and jury instructions to guard against impermissible use of other-acts evidence. Again, I find that it would proceed well beyond the scope of the present appeal, as framed, to delve further into the deeper issues.19 In summary, although I join in the analysis of evidentiary sufficiency and the statutory review of the verdict aptly rendered by the majority, I concur in the result concerning the treatment of the other-acts evidence based upon a different rationale.

(…continued) Johns, 725 P.2d at 317-321 (emphasizing the need to isolate the theory of logical relevance appropriate to a particular case, rather than reciting the non-exclusive list of exceptions set forth in Rule 404(b), while contextualizing the case under review as follows: “the logical relevance theory for which the ‘prior crime’ evidence was offered is restricted to intent,” and “[i]t follow that we are not discussing admissibility . . . under any theory of motive, opportunity, preparation, plan, knowledge or identity or any other unlisted theory”).

Although certainly such level of precision was in no way observed in the present case, again, this is not a particularized basis on which the appeal has been grounded.

[J-81-2016][M.O. – Dougherty, J.] - 18