Appeal from the Order entered May 17, 2007 In the Court of Common Pleas of Luzerne County Criminal at No(s): CP-40-CR-0002701-2006, CP-40-CR-0002700-2006.
The opinion of the court was delivered by: Stevens, J.
BEFORE: STEVENS, LALLY-GREEN, and FITZGERALD,*fn1 JJ.
¶ 1 The Commonwealth of Pennsylvania files this consolidated appeal*fn2 from the pre-trial order*fn3 entered in the Luzerne County Court of Common Pleas, which granted defense motions in limine by Appellees Paul R. Weakley ("Weakley") and Hugo M. Selenski ("Selenski") to exclude evidence of subsequent other crimes from admission at their criminal homicide trial. Because we find the other crime so distinctive in its manner of execution and so similar to the charged crime as to be admissible for the purpose of showing identity, we reverse.
Facts Related to Homicides
¶ 2 The Commonwealth submitted affidavits of probable cause to the trial court in conjunction with disposition of pre-trial motions, which summarized the Commonwealth's proffered evidence as to the homicides. The affidavits were executed on May 19, 2006, by detectives from the Luzerne County District Attorney's Office, as well as by law enforcement officers from the Pennsylvania State Police.
¶ 3 According to the affidavits, homicide victim Michael Kerkowski, Jr., a licensed pharmacist and owner of a pharmacy, was arrested in April 2001 and subsequently convicted of selling controlled substances illegally. He failed to appear at his sentencing hearing on May 14, 2002, and it was presumed that he hadabsconded. On May 6, 2002, Gerry Kerkowski, Michael's mother, reported that Michael and Tammy Fassett were both missing. In December 2002, Michael Kerkowski, Sr., reported an assault and robbery of his residence. He stated that his son, Michael, had entrusted $60,000 to him in April 2001, and the money was placed in an unused vent in the basement. Only he and Michael knew of the money and its location. During Michael's trial for illegal sale of narcotics, he introduced Selenski to Kerkowski, Sr., as his best friend, and advised his father to trust Selenski. Kerkowski, Sr. also related that in July 2002, he met with Selenski, who said that he had spoken with Michael subsequent to May 3, 2002, and that Michael had not fled, but needed $30,000 to aid in his legal defense. Selenski also indicated that he knew about the $60,000 hidden in the basement, prompting Kerkowski, Sr. to give Selenski the requested $30,000.
¶ 4 According to Kerkowski, Sr., in June or July 2002, Weakley, using the alias of "Eric," approached him and asked for $10,000 in order to repair a computer so he could keep in contact with Kerkowski, Jr., but Kerkowski, Sr., refused to tender the money unless he could speak with his son.
Kerkowski, Sr., then contacted Selenski who told him not to give money to "Eric." In August 2002, Selenski again contacted Kerkowski, Sr., who gave him an additional $30,000. Kerkowski, Sr., asked if he could speak to Michael, to which Selenski responded he would see what he could do. In September or October 2002, Selenski again met with Kerkowski, Sr., and asked for more money. Kerkowski, Sr., refused to provide any further funds until he could talk to Michael. At that time, Selenski produced a pistol, demanded money and fired the weapon, whereupon Kerkowski, Sr., gave Selenski $40,000.
¶ 5 Beginning in June 2003, Weakley provided statements to District Attorney detectives implicating Selenski as well as himself in the homicides of Kerkowski, Jr. and Fassett. Weakley denied being present at the homicides, but stated that he helped Selenski rebury the bodies on or about May 6, 2002, in the grounds at 479 Mt. Olivet Road, Kingston Township, which was in the process of being conveyed to Selenski and Tina Strom, Selenski's girlfriend.
¶ 6 On June 5, 2003, a search warrant was served at the Mount Olivet property. Weakley accompanied the authorities to the property and pointed out the burial site.*fn4 As a result, Kerkowski, Jr.'s and Fassett's remains were discovered, along with flex ties and duct tape. An autopsy report found the cause of death as strangulation, and the manner of death as homicide.*fn5
¶ 7 Investigators further discovered that Weakley had purchased digging tools from a hardware store on May 4, 2002. Weakley also purchased a cell phone and was in constant communication with Selenski from May 3, 2002, through May 5, 2002, about 36 total calls. Contrary to Weakley's statements, investigators also discovered that Weakley did not work on May 3, 2002.*fn6
¶ 8 On August 6, 2006, Selenski and Weakley were charged with breaking into the home of Samuel Goosay, a jeweler, on January 27, 2003, which was approximately 8 months after the date of the alleged homicides of Kerkowski, Jr. and Fassett on May 3, 2003. At the time of the within pre- trial motion, Selenski and Weakley had not been tried for that offense. Instead, the Commonwealth provided the trial court with copies of the affidavits of probable cause for the arrest of Selenski and Weakley, as well as Goosay's testimony at the preliminary hearing for the robbery offense.
¶ 9 The trial court summarized the circumstances of the Goosay robbery:
[On] January 27, 2003, at approximately 6:30 p.m., two men forcibly entered Goosay's residence through a rear door. One of the men displayed a firearm and ordered Goosay to the floor. The other suspect handcuffed Goosay behind his back with metal handcuffs, put duct tape over his eyes and removed approximately $800 from his pants pocket. . . . They removed the metal handcuffs and rebound Goosay's hands in front with plastic flex ties.
One of the suspects lost a glove and threatened to burn the house down if he couldn't find it. The man with the firearm remained behind while the other man left in Goosay's car. . . . Shortly thereafter, Goosay received a call that there was a break-in at his business (a jewelry store). A break-in at Goosay's jewelry shop was attempted by an unknown white male who fled, leaving Goosay's car, when the alarm went off. The other man left after the call. The police found that a large amount of jewelry was stolen from the residence. They recovered a plastic flex cuff, a bloodstained dishcloth and a ski glove at Goosay's house and two bloodstained dishcloths, a travel bag and latex gloves from Goosay's car. There was also a sneaker footprint.
 The usual name of this item is "175N cable ties." Plastic cable ties can be purchased in lengths of 18-48" at most hardware stores.
[The] Monroe County affidavit of probable cause indicates that Weakley's DNA was found on one of the dishcloths located in the car, Goosay identified Weakley early on and, on August 27, 2003, Weakley admitted to the robbery and stated that Selenski was involved in and planned the robbery. Weakley indicated that Selenski held Goosay at gunpoint using a BB-type handgun while Weakley secured Goosay with handcuffs and put duct tape over his eyes and mouth. Later, Goosay identified Selenski. The sneaker print allegedly matches a sneaker of Selenski's found at Mount Olivet Road, and a BB-type pistol found in a vehicle operated by Selenski during the June 2003 search of Mt. Olivet Road was consistent with the weapon described by Goosay..When Mt. Olivet Road was searched, plastic flex ties, duct tape, metal handcuffs and rope were found and duct tape was found at Weakley's residence and in a vehicle he used. A black BB-type pistol was found in a vehicle operated by Selenski.
Trial Ct. Op. at 17-19 (citations omitted).*fn7
¶ 10 The trial court also commented on the flex ties and duct tape:
The Goosay duct tape and plastic flex cuffs were compared to the duct tape and flex ties found on the bodies of Kerkowski and Fassett and found to be visually and microscopically similar.
 The laboratory report of August 21, 2004 was submitted into the record at the [motion in limine] hearing of April 27, 2007. It reads in pertinent part as to some of the items submitted: "The (tape/wire ties) from (Goosay) (was/were) consistent visually, stereomicrosopically and instrumentally with the (tape/wire) (tape/wire) from the (Kerkowski/Fassett investigation)." The report indicates that the tapes "could have originated from the (same) roll of tape" or "could share a common origin" with the wire ties. Notably, several of the duct tape samples and wire ties submitted, according to the lab report "do not share a common origin/source." [(emphasis added by trial court)]. Also notably, the report does not say that any of the Goosay samples are definitively from the same source (e.g. the same batch of plastic ties or duct tape from the factory, plastic ties or duct tape purchased from the same store, duct tape cut or torn in a matching way, etc.).
The Commonwealth has not specifically indicated what evidence from the Goosay robbery it proposes to introduce. At argument on April 27, 2007, it was indicated that Samuel Goosay and an expert on the cable ties would be called as witnesses at the trial of Selenski and Weakley for the Kerkowski/Fassett homicides. It also appears that the Commonwealth intends to introduce physical evidence from the Goosay robbery (flex ties, duct tape, bloodstained dishcloths), laboratory reports and/or the testimony of the lab technicians concerning microscopic analysis of the flex ties, duct tape and dishcloths, DNA test results, police officers and security guards involved in the Goosay incident, and police sketches and/or photographs purporting to be of Selenski and Weakley-in short, a mini-trial of the Goosay case within this case.
¶ 11 The Commonwealth filed its notice of intent to seek admission of evidence of other crimes, on October 16, 2006, stating that it intended at the homicide trial to offer testimony regarding the robbery committed against Samuel Goosay on or about January 27, 2003. In addition to the above summarized information, the Commonwealth also provided the trial court with copies of Kerkowski, Sr.'s testimony at Selenski's preliminary hearing, as well as the full 476-page transcript of the 8-hour proceeding. The trial court granted the defense motion to exclude evidence of the Goosay robbery in the within homicide trial. The Commonwealth filed the instant appeal, posing the question:
Did the trial court abuse its discretion in excluding evidence of a subsequent and similar crime by the Defendant, where the Commonwealth presented twelve (12) similarities between that crime and the crime at issue that were relevant to prove the Defendant's identity, motive, intent, knowledge, opportunity and/or ...