Commonwealth v. Hicks

91 A.3d 47, 625 Pa. 90, 2014 WL 1669796, 2014 Pa. LEXIS 1066
Supreme Court of Pennsylvania·Decided April 28, 2014·Published·Cited by 36 cases

Opinion

OPINION

Justice EAKIN.

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

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

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

to establish defendant’s motive for the present offense, his method or modus operandi for the commission of the present offense, to establish his identity as the perpetrator of the present offense, the absence of any accident or mistake as the cause of the victim’s death in the present offense, and/or proof of a common plan or scheme on the part of the [50] defendant to victimize prostitutes or women engaging in prostitution to satisfy their addictions to controlled substances, such as the victim of the present offense, Deanna Null.

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

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

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

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

Despite their manifest inconsistency, the Superior Court treated the conflicting rationales of the trial court as merely alternative bases for exclusion. The court noted that, as the comment to Rule 404(b)’s pre-trial notice requirement states, the purpose of the requirement is “to give the defendant reasonable time to prepare an objection to J such evidence[,]” the trial court did not err in making a pre-trial determination of admissibility. Commonwealth v. Hicks, No. 1977 EDA 2011, unpublished memorandum at 10, 53 A.3d 932 (Pa.Super. filed June 18, 2012) (emphasis omitted) (citation omitted). The court opined it is not only reasonable, but “desirable for [a] defendant to raise such objection prior to trial rather than waiting until the time of trial when such objections could hamper the Commonwealth’s presentation to the fact-finder and cause further delay.” Id., at 10 n. 1. The court also [51] rejected the Commonwealth’s argument that it could not know which witnesses it would be able to obtain for trial, stating “[t]he Commonwealth merely wishes to have a greater pool of potential witnesses from which to draw[,]” but “[t]he depth of that pool is immaterial ... if the court determines that the testimony of any member of that pool is otherwise inadmissible.” Id., at 11.

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

Free access — add to your briefcase to read the full text and ask questions with AI

Commonwealth v. Hicks, 91 A.3d 47, 625 Pa. 90, 2014 WL 1669796, 2014 Pa. LEXIS 1066 (Pa. 2014).

91 A.3d 47 (Commonwealth v. Hicks) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Com. v. Giles, B.
Superior Court of Pennsylvania, 2026
Com. v. Stewart, N.
Superior Court of Pennsylvania, 2026
Com. v. Kline, A.
2025 Pa. Super. 196 (Superior Court of Pennsylvania, 2025)
Com. v. Ewing, M.
Superior Court of Pennsylvania, 2025
Com. v. Fountain, D.
Superior Court of Pennsylvania, 2023
Com. v. Vasquez, M.
Superior Court of Pennsylvania, 2023
Com. v. Velazquez, A.
Superior Court of Pennsylvania, 2023
Com. v. Reeves, J.
Superior Court of Pennsylvania, 2022
Com. v. Royster, K.
Superior Court of Pennsylvania, 2021
Com. v. Pratt, H.
Superior Court of Pennsylvania, 2021
Com. v. Williams, J.
2021 Pa. Super. 13 (Superior Court of Pennsylvania, 2021)
Com. v. Wesley, J.
Superior Court of Pennsylvania, 2020
N. Desher (Guardian ad litem of P. Devlin) v. SEPTA
212 A.3d 1179 (Commonwealth Court of Pennsylvania, 2019)
Com. v. Benson, J.
Superior Court of Pennsylvania, 2019
Commonwealth v. Creary
201 A.3d 749 (Superior Court of Pennsylvania, 2018)
Com. v. Kinnard, R., II
Superior Court of Pennsylvania, 2018
Com. v. Divalentino, A.
Superior Court of Pennsylvania, 2018
Com. v. Gudino, A.
Superior Court of Pennsylvania, 2018
Com. v. Mable, A.
Superior Court of Pennsylvania, 2018