• 2/23/12; 11:52 PM: How does that feel huh? Knowing at any point in time I could be right outside your door. You better have [child] with ya there at all times.
• 2/23/12; 11:53 PM: What are you gunna do when she gets on the bus???
• 2/23/12; 11:54 PM: Just wondering lolololololololol
• 2/23/12; 11:55 PM: You have fucked with my head for the last time!
• 3/2/12; 5:08 PM: Hey im gunna help greg change his oil … No bliz just good phil nuggs. Should be done by 6:30
Im behaving promise. Plus I got those drops for the fish tank.
Commonwealth's Motion in Limine and Notice Under 404(b), 12/ 6/ 12, at Exhibit 1 (emphasis added).
The Commonwealth alleges that on March 3, 2012, Greene physically assaulted the victim . After the alleged assault, the victim forwarded Greene's text messages to the chief of police of the Gallitzin Borough Police Department and to the Cambria County District Attorney's Office. The victim did not forward her text message responses to Greene nor did the authorities take action to preserve those messages. The victim's messages to Greene are unavailable as they were not saved on the phone.
The Commonwealth subsequently charged Greene with two counts of simple assault and six counts of terroristic threats. The terroristic threat charges stem from the text messages Greene sent, which are in bold above.
Prior to trial, the Commonwealth filed a motion in limine in which it sought an evidentiary ruling to admit the six emphasized text messages. See Motion in Limine, 10/11/ 12. Greene filed a response in which he argued the inadmissibility of the messages. See Response to Commonwealth Motion in Limine, 10/ 17/ 13. Greene, this time with new counsel, filed a motion in limine, which contained another response to the Commonwealth's motion in limine. In it, he argues that the text messages are not admissible as, among other things, the victim's responses "were purposefully omitted, destroyed, and/ or otherwise not produced[, ] " that the missing messages violate Rule 106 of the Rules of Evidence, and that admission of the messages violate "fundamental notions of Due Process[ .] " Defendant, Shannon Greene's Motion in Limine, 12/ 6/ 12, at ¶¶ 39, 45. The Commonwealth filed another motion in limine in which it sought to introduce all eighteen text messages under Rule 404(b) of the Pennsylvania Rules of Evidence. See Motion in Limine and Notice Under 404(b), 12/ 6/12.
The trial court heard legal argument on the pre-trial motions on December 6, 2012, and, that same day, entered an order denying, without any reasoning, the Commonwealth's motions in limine. This timely appeal followed.
On appeal, the Commonwealth argues that the trial court erred in precluding the text messages. Our standard of review is well-settled. We utilize an evidentiary abuse of discretion standard when reviewing the denial of a motion in limine. See Commonwealth v. Mitchell, 588 Pa. 19, 60, 902 A.2d 430, 455 (2006). Misapplication of the law by the trial court is an abuse of discretion. See Commonwealth v. Dillon, 863 A.2d 597, 600 (Pa.Super. 2004). "[O]ur scope of review is limited to an examination of the trial court's stated reason for its decision to preclude the admission of the evidence in the Commonwealth's case-in-chief." Id. (citation omitted).
In its Rule 1925(a) opinion, the trial court notes that during the legal argument on the motion in limines the Commonwealth explained that the victim intentionally saved the text messages from Greene, but that her phone eventually automatically deleted her messages to Greene as she did not save them . See Trial Court Opinion, 3/ 4/ 13, at 3. Citing to Rule 106 of the Pennsylvania Rules of Evidence, the trial court found that "[ u]nder these specific circumstances … the admission of the messages would be misleading and the prejudicial effect would outweigh their probative value." Id. Apart from the victim's testimony on cross-examination, there is no way, the trial court contends, for the jury to "hear[ ] … the complete conversation and not snippets taken out of context." Id.
To the extent that the trial court relied on Rule 106 to exclude the text messages it erred. Rule 106 is not an exclusionary rule. See, e.g., Commonwealth v. Bryant, 57 A.3d 191, 195 (Pa.Super. 2012).
We must next address the trial court's finding that the probative value of the text message evidence is outweighed by the danger of unfair prejudice. We will first address the six text messages for which the Commonwealth charged Greene with terroristic threats.
Although not specifically stated in the trial court's opinion, it relies on Rule 403 of the Pennsylvania Rules of Evidence to exclude this evidence. The rule now in effect states that " [ t] he court may exclude relevant evidence if its probative value is outweighed by a danger of one or more of the following: unfair prejudice…." Pa.R.E. 403.
Of course, by its very nature, the evidence presented by the Commonwealth against the defendant is designed to be harmful. Therefore, Rule 403 provides that evidence will be excluded only if it is unfairly prejudicial. " '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." Id., Comment (quotation marks omitted).
[E]xclusion is limited to evidence so prejudicial that it would inflame the jury to make a decision based upon something other than the legal propositions relevant to the case.... This Court has stated that it is not required to sanitize the trial to eliminate all unpleasant facts from the jury's consideration where those facts are relevant to the issues at hand[ .]
Commonwealth v. Kouma, 53 A.3d 760, 770 (Pa.Super. 2012) (brackets in original).
We find that the six text messages are not unfairly prejudicial. The trial court's concern stem s from the fact that it was afraid that " permitting the introduction of such select snippets out of context from the rest of the conversation is highly prejudicial and misleading to jurors." Trial Court Opinion, 3/4/13, at 5. We disagree that the jurors will be m isled. The text messages form the actusreus of the terroristic threat charges. The introduction of the text messages will not so inflame the jury that they will make a decision based on something other than the relevant legal grounds. Greene is free to call the victim as on cross-examination to ask about the circumstances surrounding the text messages and her texts to Greene.
We next address the remaining twelve text messages. Although not specifically mentioned in the trial court opinion, the trial court's rationale for finding these messages inadmissible can only be supported by what is now Rule 404(b)(2). That rule provides that evidence of a crime, wrong, or other act "may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Pa.R.E. 404(b)(2). The rule further provides that "[ i] n a criminal case this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice." Id.
In its opinion, the trial court finds that probative value of the text messages is outweighed by the danger of unfair prejudice. We find that in making this determination the trial court abused its discretion. A review of those twelve messages reveals that they are not unfairly prejudicial. The trial court's primary concern is that they constitute just one-half of the conversation. However, this is alleviated by the fact that Greene is free to call the victim to testify as on cross-examination.
Lastly, the trial court precluded the evidence based on the destruction of possible exculpatory evidence—Greene's texts to the victim. Those texts, as noted, were not preserved. The trial court notes that preclusion is required due to the spoliation of the evidence as "to hold otherwise would violate fundamental notions of justice and Due Process." Id., at 8. We disagree.
The finding that the failure to preserve potentially useful evidence constitutes a violation of due process requires that Greene showed that the Commonwealth acted in bad faith. See Arizona v. Youngblood, 488 U.S. 51, 57 (1988) ("We therefore hold that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law."). As explained below, the record is utterly devoid of any indication that the Commonwealth acted in bad faith.
The trial court cites the victim 's testimony from the preliminary hearing that she forwarded the text messages at issue to the chief of the Gallitzin Borough Police Department and to Assistant District Attorney Scott M. Lilly, Esq., three days before the filing of the charges in this case. See id., at 4. The trial court then states the following:
There is no testimony of record as to why she did not forward any of her correspondence to Greene contemporaneously with the forwarding of his messages. Further, there is no evidence as to when [ the police chief] or Lilly first viewed the actual phone or whether her messages were on it when they initially saw it.
Further, there is no evidence of record as to why neither [ the police chief] nor Lilly asked [ the victim ] to provide her part of the conversation when she was forwarding Greene's messages to them or why the phone was not taken into evidence by [ the police chief] contemporaneously with the filing of charges in order to preserve t he evidence.
[The police chief] and Lilly as law enforcement professionals should have recognized the importance of preserving the entire exchange in order to preserve possibly exculpatory evidence or at the least provide a jury with a complete picture of the conversations.
Id., at 4-5.
The trial court does not make a finding that the Commonwealth acted in bad faith. Greene does not even allege that the Commonwealth acted in bad faith. In fact, there was no evidentiary hearing in this case. As such, there was no basis for the trial court to preclude the evidence based on a finding of a due process violation stemming from the destruction of potentially exculpatory evidence.
Case remanded for proceedings consistent with this memorandum. Jurisdiction relinquished.