ARGUED: September 13, 2016
from the Judgment of Sentence entered on 1/6/2015 in the
Court of Common Pleas, Monroe County, Criminal Division at
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY,
Charles Ray Hicks appeals from the sentence of death imposed
by the Monroe County Court of Common Pleas after a jury
convicted him of first-degree murder, tampering with
evidence, and abuse of corpse. For the following
reasons, we affirm the judgment of sentence.
January 29, 2008, Corporal Jody Radziewicz, a member of the
forensic services unit of the Pennsylvania State Police, was
called to process several crime scenes where body parts were
discovered on stretches of Route 380 and Route 80 in Monroe
and Lackawanna Counties. N.T. 11/5/14 at 91. At these various
locations, troopers recovered numerous black garbage bags
with blue handle ties containing the body parts of a woman,
except for her hands. Id. at 91-93. Surprising to
Corporal Radziewicz was the fact that most of the body parts
were relatively cleanly severed, probably with a knife or
saw, and free from blood. Id. at 102, 121. However,
there was blood and a jagged cut in the shoulder area where
the neck and head were severed from the rest of the body.
Id. at 157. The victim's head was found on the
on-ramp to Route 380 from Route 423 in Tobyhanna, Monroe
County, about 200 yards from appellant's house.
Id. at 83, 163.
Saralee Funk performed an autopsy at the Monroe County
Coroner's Office, and a rape kit was also prepared;
hairs, footprints, and other DNA evidence were taken from the
victim. Id. at 198-201. The victim was eventually
identified as Deanna Null after dental records were compared
and determined to be a match. Id. at 206. Dr.
Funk's autopsy report stated there were ambiguities
around the timing of the injuries, and pre-death trauma could
not be ruled out until additional testing was completed. N.T.
11/6/14 at 141-42. Shortly after the autopsy and before
additional testing, Dr. Funk suffered a serious health crisis
which led to her retirement. N.T. 11/5/14 at 206-07.
autopsy report was later reviewed and additional testing was
completed by Dr. Wayne Ross, a forensic pathologist working
in multiple counties in Pennsylvania. N.T. 11/6/14 at 20.
After observing marks and swelling on the victim's face,
Dr. Ross concluded this was due to blunt force trauma from
being hit in the face with a hand or fist at least six times
while she was still alive. Id. at 28-33. Dr. Ross
also found pre-death injuries, including lacerations, on the
back of the victim's head which he determined were
consistent with being struck with a crowbar or a pipe.
Id. at 34-38. Dr. Ross concluded the victim suffered
at least seventeen different impacts to her face and head
area while she was still alive as there was swelling and
hemorrhaging which would not have occurred had the victim
been deceased prior to the trauma. Id. at 44.
Further pre-death injuries were found to the victim's
torso, including all twelve ribs being fractured multiple
times. Id. at 51. Dr. Ross concluded these injuries
resulted from being stomped with a boot or shoe. Id.
at 54. Dr. Ross also found evidence the victim was strangled
while alive based on the red-purple appearance of her face
and hemorrhaging in the throat area. Id. at 61-64.
Using a process called "blood staining, " and based
on blood and blood clotting around the neck tissue, Dr. Ross
concluded the victim was alive when her neck and head were
severed from her torso. Id. at 75-90. Dr. Ross
ultimately concluded the victim's cause of death was a
combination of strangulation and sharp force injury to her
neck. Id. at 90.
Bullock was interviewed by police and stated the victim had
brought appellant to his home in the Scranton area on or
about January 25, 2008. Id. at 221. After staying
for a few hours, appellant and the victim left Mr.
Bullock's home. Id. This was the last time Mr.
Bullock saw the victim and stated she seemed nervous and
withdrawn during the visit, which was not like her normally
outgoing demeanor. Id. at 224. Mr. Bullock stated
appellant returned a few hours later looking for crack
cocaine without the victim. Id. at 222.
McCallister was also interviewed and told police he had
introduced the victim to a man who was looking for
prostitutes and drugs in the Scranton area in January of
2008. Id. at 173-76. McCallister gave the police a
description of the man and his vehicle and also told police
the man stated he worked in Tobyhanna. Id. at 178.
February 7, 2008, Trooper Kent Lane was on surveillance
looking for a dark colored sedan with a vinyl roof as
described by McCallister. Id. at 148. While
traveling on Route 423, near the intersection of Route 380,
Trooper Lane observed a dark blue Mercury Grand Marquis
parked at 131 Prospect Street, appellant's residence.
Id. at 149. After searching the license plate
number, Trooper Lane determined the owner of the vehicle was
a "Charles R. Hicks, " but the investigation
regarding appellant was placed on hold while other leads were
followed. N.T. 11/10/14 at 120. However, on March 4, 2008,
Trooper Shawn Hilbert received information about the same
vehicle being present at appellant's residence. N.T.
11/6/14 at 153. After further confirming Charles Hicks of
Burleson, Texas was the owner of the vehicle, Trooper Hilbert
called the Texas Intelligence Department which provided
driver's license photographs for two men named Charles
Hicks, father and son, who resided at the same address in
Burleson. Id. at 156-57.
secured a search warrant for the vehicle and approached
appellant in a parking lot after following his vehicle. N.T.
11/10/14 at 126. Appellant agreed to go to the police
barracks for an interview. Id. During the interview,
appellant acknowledged he knew the victim as a prostitute
from Scranton and had been with her on one or two occasions
in the beginning of January 2008. Id. at 132.
Appellant also stated he was addicted to crack cocaine and
had some problems with alcohol. Id. at 133. However,
appellant denied ever becoming violent with the victim.
Id. at 146. During the search of the vehicle, police
recovered a blood-stained pair of boots from the trunk.
Id. at 21-23, 63-64. There were also traces of blood
present in the front passenger seat. Id. at 24. When
asked about the blood on the boots, appellant stated he did
not know how it got there. Id. at 156. Appellant was
then informed a search warrant had been secured for his home.
Id. at 157.
Matthew Johnstone, a New York State Police dog handler, was
called in to assist the Pennsylvania State Police in their
search of appellant's residence and vehicle for human
remains. N.T. 11/7/14 at 18-19. After there was no alert to
such remains in the vehicle or the exterior of
appellant's property, Trooper Johnstone moved inside the
house. Id. at 19. The K9 alerted to a briefcase in
the living room area and the floor in one corner of the
basement. Id. at 20-21. The briefcase contained a
very detailed handwritten map of the Scranton area. N.T.
11/10/14 at 172-73. Collected from the basement was a Sawzall
reciprocating saw blade and medium length brown hairs. N.T.
11/7/14 at 196. Medium length hairs and skin particles were
also recovered from various items, including a scrub brush,
found inside a tool bag recovered from another part of the
house. N.T. 11/10/14 at 43-52. The DNA profile taken from the
hairs on the scrub brush were determined to match the DNA
profile of the victim. Id. at 89. Five unused black
garbage bags with blue draw strings, which were identical to
the bags containing the victim's body parts, were found
in the attic of the house. N.T. 11/7/14 at 143. Fingerprints
found on the garbage bags from the attic matched those of
appellant. N.T. 11/10/14 at 36. The search of the home also
produced a pair of human hands wrapped in socks, newspaper
pages dated February 4, 2008, and Ziplock bags; the hands
were found inside a large access panel for the bathroom
plumbing. N.T. 11/7/14 at 162-168. Socks found in
appellant's bedroom and unused Ziplock bags found in the
kitchen were exact matches with those used to wrap the hands.
Id. at 185-189. The fingerprints from the recovered
hands matched those of the victim. N.T. 11/10/14 at 37.
Appellant was taken into custody and charged with the murder
of Deanna Null. Id. at 161.
to trial, the Commonwealth filed a notice pursuant to
Pennsylvania Rule of Evidence 404(b)(3) informing appellant
of its intention to introduce evidence of prior bad acts
through the testimony of eight women with whom appellant had
a sexual and/or prostitution-type relationship, which also
involved the use of illegal narcotics such as crack cocaine.
Commonwealth's Pa.R.E. 404(b) Notice, 3/26/10 at
1. The Commonwealth sought to introduce
the evidence in order to buttress circumstantial evidence in
the case by showing motive, identity and intent, as well as
to rebut any defense based on accidental death. Id.
at 1-2. The proposed witnesses - identified as Cheryl Denise
Phillips, Lakessia Roshe Mayfield, Suzanne Downing, Lakisha
Muhammad a/k/a Lakisha Washington, Karen Lovell, Misty Kay
Chavez, Sheinina Hicks, and Kim Alston - would testify to
appellant's alleged assaults on them which included
beating, choking, and threats with edged weapons.
Id. The Commonwealth posited the proposed testimony
would demonstrate a common scheme on the part of appellant to
victimize prostitutes, or women engaging in prostitution to
satisfy their addictions to controlled substances, such as
the victim in the present case. Id. at 1-2.
filed a motion to exclude Rule 404(b) testimony and, in
response, the trial court ordered the Commonwealth to file an
offer of proof for each witness. The Commonwealth filed
offers of proof for seven of the eight witnesses,
alleging their experiences with appellant bore striking
similarities to the victim's murder for the following
reasons: all were women who had engaged in prostitution and
drug use with appellant, who had admitted to having sex and
using drugs with the victim; the witnesses were assaulted
primarily by being beaten or choked with appellant's
hands, and the blunt force trauma suffered by the victim was
consistent with this type of assault; several of the
witnesses were threatened with edged weapons, and the victim
suffered numerous injuries by edged weapons; disputes arising
out of a sexual encounter appeared to be the motive for many
of the assaults, and appellant admitted having a sexual
relationship with the victim. Commonwealth's Pa.R.E.
404(b) Offers of Proof, 4/27/11 at 6. The Commonwealth also
argued the probative value of the evidence outweighed any
unfairly prejudicial effect as its case against appellant was
based primarily on circumstantial evidence. Id. at
subsequent briefing by the parties, the trial court
determined the testimony of Alston, Lovell and Chavez was
admissible pursuant to Rule 404(b), while the testimony of
Phillips, Washington, Hicks and Downing was inadmissible as
cumulative, and its prejudicial effect would outweigh its
probative value. Tr. Ct. Opinion, 7/14/11 at 15. The
Commonwealth filed an interlocutory appeal and appellant
cross-appealed. The trial court's ruling was affirmed by
the Superior Court, and the Commonwealth petitioned this
Court for allowance of appeal. This Court accepted review and
ultimately reversed the Superior Court's decision,
remanding to the trial court for further proceedings
regarding the admissibility of testimony from the excluded
witnesses Phillips, Washington, Hicks and Downing.
Commonwealth v. Hicks, 91 A.3d 47 (Pa. 2014). The
Court held the trial court should have deferred balancing
probative value against prejudicial effect until trial, and
stated, "the [trial] court erred in ruling which
witnesses would be the cumulative ones, restricting which
ones the prosecution might call." Id. at 55.
remand, the trial court held the testimony of Phillips,
Washington and Hicks was admissible, while again ruling the
testimony of Downing was inadmissible. The Commonwealth
ultimately presented the testimony of Alston, Chavez and
Washington at trial. Twice during trial and with significant
detail while charging the jury at the close of the guilt
phase, the trial court instructed the jury the witnesses'
testimony was not offered to show appellant's bad
character, but for the "very limited purpose" of
proving intent, motive, common plan or scheme and lack of
accident. N.T. 11/7/14 at 59-60, 88; N.T. 11/14/14 at
a recovering drug addict, testified she was living in
Virginia in 2006 when she relapsed on marijuana and cocaine.
N.T. 11/6/14 at 186-87. During her relapse, she was brought
to appellant's home by a woman named Yvette. Id.
at 187. Alston provided appellant with approximately $200
worth of crack cocaine. Id. at 192. After Yvette
departed, appellant and Alston argued over money for the
drugs. Id. As Alston observed appellant become very
angry, she ended the argument and attempted to leave the
house. Id. at 192-93. Appellant displayed a gun and
verbally threatened to kill Alston, while Alston again
attempted to leave and refused to give appellant more drugs.
Id. at 193, 195. Appellant then grabbed Alston by
the throat and choked her until she was unconscious.
Id. at 196. When Alston regained consciousness,
appellant was sitting on top of her, both of them were naked,
and appellant had a knife to her throat while attempting to
penetrate her sexually. Id. at 196, 199. When
appellant allowed Alston to leave the house, he refused to
give her her clothes; Alston ran out of the house naked, a
neighbor gave her clothes, and she called the police.
Id. at 198. Charges filed against appellant were
eventually dismissed when Alston failed to appear for court.
Id. at 207. Alston testified this was the first and
last time she ever saw appellant, and she has been in
recovery from drug use ever since. Id. at 200.
testified she was living in Fort Worth, Texas in 2003 when
she first used crack cocaine. N.T. 11/7/14 at 62. At this
time, Washington was a prostitute and would offer sex for
drugs or money. Id. at 81. One evening, Washington
went to a known drug area and entered a car with a man named
Ronnie Hogan. Id. Washington and Hogan went to the
Relax Inn and partied all night with appellant. Id.
The next morning appellant and Hogan left the hotel to get
Hogan's car fixed. Id. at 62-63. Appellant then
returned to the hotel without Hogan and agreed to take
Washington to get heroin. Id. at 64. Washington
testified that, after using the heroin, she was in and out of
consciousness all day, until she woke up in appellant's
truck parked on a dark property. Id. at 63-65. As
Washington and appellant smoked crack in the truck, appellant
asked her to touch her vagina. Id. at 66. Washington
stated she complied with the request because "it's
like an unwritten rule that if you give me the drugs . . . I
give you the sex." Id. When appellant began
driving back to the highway, the two argued about directions.
Id. at 67. As Washington attempted to exit the
vehicle, appellant angrily grabbed her by the neck and pulled
her back inside. Id. Appellant calmed down and
allowed Washington to drive back to the Relax Inn, but then
told her if she left the vehicle he would kill her.
Id. at 68. Notwithstanding appellant's threat,
Washington left the vehicle and attracted the attention of
the hotel manager, who called police. Id. Washington
testified this was the only time she ever saw appellant.
Id. at 69.
testified she was living in Arlington, Texas in the 2002-2003
time period when she met appellant. Id. at 90.
Chavez was unemployed and supporting her cocaine addiction
through prostitution. Id. at 92. Chavez testified
she was introduced to appellant by her girlfriend and used
drugs with him a couple times a week, but their encounters
did not always involve sex. Id. at 92-93. After
several months of this relationship, appellant and Chavez had
an argument while driving on Highway 360 about where she was
buying drugs. Id. at 93. Chavez said to appellant,
"I'm not the bitch that you can control."
Id. Appellant became angry and reached over the
center console, choking Chavez until she felt she would black
out, cutting her skin with his fingernails in the process.
Id. at 94, 97. Chavez opened the vehicle door to
escape, but closed it after appellant told her to "Shut
the door, or I'll kill you." Id. Appellant
exited the highway, pulled the car over and said he was
sorry; the two returned to his apartment. Id. at
95-96. When Chavez attempted to leave the apartment in her
own vehicle, appellant pleaded with her to stay and let him
clean the blood off her neck. Id. at 97-98.
Appellant said, "Misty, I'm sick. I've done this
before. That's why I can't keep relationships.
Something's wrong with me." Id. at 98.
Chavez stopped seeing appellant after this incident.
Id. at 100. Finally, Chavez testified she received a
call from appellant about a year later during which he said
"I hurt her. Misty, I hurt her." Id. at
101. Chavez stated she could hear a female screaming in the
background during the phone call. Id.
presented the testimony of Dr. John J. Shane, who had
extensive experience in forensic pathology but was not board
certified. N.T. 11/12/14 at 11. Dr. Shane testified he
reviewed Dr. Funke's autopsy report and concluded the
victim's bruising and lacerations occurred after her
death. Id. at 15-33. Dr. Shane also concluded the
victim's cause of death was most likely related to
substance abuse and accidental. Id. at 37. At the
conclusion of the guilt phase, the jury convicted appellant
of first-degree murder, tampering with evidence, and abuse of
Commonwealth moved to introduce all guilt phase evidence into
the record for the penalty phase, and the trial court granted
the motion with no objection from appellant. N.T. 11/17/14 at
16. The Commonwealth asked the jury to find the torture
aggravator, 42 Pa.C.S. §9711(d)(8), and stipulated to
the mitigator of no significant criminal history, 42 Pa.C.S.
§9711(e)(1). Id. at 6. Appellant introduced
testimony from his family which focused on their family's
history of substance abuse and mental illness, as well as
appellant's depression and attempts at suicide.
Id. at 46-47, 57. Appellant also presented the
testimony of Dr. Kenneth J. Weiss, a psychiatrist, who
interviewed appellant and reviewed his medical history. Dr.
Weiss concluded appellant's depression was caused by a
number of adverse childhood experiences, and his drug use
exacerbated his depression and fueled his violent behavior.
Id. at 89-92. Appellant also presented testimony
from several witnesses who interacted with him during his
incarceration and testified he is a respected model prisoner
with no disciplinary problems. N.T. 11/18/14 at 8, 10,
1543-45. Finally, appellant introduced the testimony of Dr.
Carol Armstrong, a neuropsychologist, who performed various
tests and concluded appellant has many cognitive impairments
which would not occur in a typical healthy individual and
would affect his ability to make good judgments. Id.
at 20-27. The jury ultimately sentenced appellant to death,
finding the aggravating factor of torture outweighed any
filed post-sentence motions raising claims related to the
sufficiency and weight of the evidence, ineffectiveness of
trial counsel, and challenging the trial court's
admission of the testimony of Alston, Washington and Chavez
relating to his alleged prior bad acts. In explaining why it
allowed the witnesses' testimony, the court relied in
part on Commonwealth v. Weakley, 972 A.2d 1182 (Pa.
Super. 2009), to analyze the similarities between Deanna
Null's murder and the prior acts across several factors.
See id. at 1189 (court must consider: "(1) the
manner in which the crimes were committed; (2) weapons used;
(3) ostensible purpose of the crime; (4) location; and (5)
type of victims.").
trial court found significant similarities among the
incidents: each involved appellant attacking a woman in the
neck area as an immediate reaction to her not behaving in the
way he desired. Tr. Ct. Opinion, 8/18/15 at 30-31. The court
further noted the same weapon was used in attacking each
victim around the neck, i.e., appellant's own
hands. Id. at 31. The court also found the
ostensible purpose of each crime was identical - appellant
always attacked as an expression of control. Id. The
court acknowledged the location factor did not support
admissibility as the acts occurred in different places, but
the type of victim was consistent; the court noted Deanna
Null and the witnesses were of similar body types and all
were drug users, appellant demonstrated a sexual interest in
each woman, and the attacks occurred while appellant was
alone with them. Id. The court concluded the prior
incidents were sufficiently similar to the charged crime to
be admissible. Id. The court further opined that,
with regard to showing common plan or scheme, proof of one
incident "tends to prove the others, " id.
at 32, and the jury was correctly told the evidence could be
used to establish intent, motive, common plan or scheme, and
lack of accident, as well as the identity of the perpetrator.
Id. at 31-32. The court concluded the details of the
various other acts were not "simply insignificant
details that would likely be common no matter who perpetrated
the crime, " reiterating the victim and the witnesses
were involved in crack cocaine use, appellant had a sexual
relationship with the victim and showed a sexual interest in
the witnesses, possible causes of the victim's death
included asphyxiation or decapitation, and appellant
violently attacked all of the witnesses in their neck area.
Id. at 32-33. The court denied post-sentence relief
and this direct appeal followed.
Sufficiency of the Evidence for First-Degree Murder
does not challenge the sufficiency of the evidence and did
not brief the issue, but in all capital direct appeals, this
Court conducts an independent review of the sufficiency of
the evidence supporting a first-degree murder conviction,
even if the defendant does not raise the claim. See
Commonwealth v. Zettlemoyer, 454 A.2d 937, 942 n.3 (Pa.
1982) (to fulfill review obligation imposed by 42 Pa.C.S.
§9711(h), Court shall review sufficiency of evidence
supporting first-degree murder, even where appellant does not
contest sufficiency). The standard of review for evidentiary
sufficiency is whether the evidence, viewed in the light most
favorable to the Commonwealth as the verdict winner, supports
the jury's finding that every element of the offense was
proven beyond a reasonable doubt. Commonwealth v.
Watkins, 843 A.2d 1203, 1211 (Pa. 2003). The
Commonwealth may sustain this burden by wholly circumstantial
evidence and the jury is free to believe all, part, or none
of the evidence. Commonwealth v. Cousar, 928 A.2d
1025, 1032-33 (Pa. 2007). "To obtain a conviction for
first-degree murder, the Commonwealth must demonstrate that a
human being was unlawfully killed, that the defendant was the
killer, and that the defendant acted with malice and a
specific intent to kill." Commonwealth v.
Laird, 988 A.2d 618, 624-25 (Pa. 2010), citing
18 Pa.C.S. §2502(a). Specific intent and malice may be
inferred through circumstantial evidence, such as the use of
a deadly weapon on a vital part of the victim's body.
Commonwealth v. Houser, 18 A.3d 1128, 1133-34 (Pa.
viewing the evidence in the light most favorable to the
Commonwealth, the record establishes the victim, with whom
appellant used drugs and engaged in sex, was badly beaten,
strangled and decapitated with a saw blade or knife prior to
her death. Furthermore, appellant had a history of violent
conduct toward drug-addicted women who may have been
prostitutes or with whom he otherwise had a sexual
relationship. Also, appellant was the last person seen with
the victim before her disappearance, blood was found in his
car and on his boots, the victim's hands were found in
the walls of his house and other materials found in the house
matched the materials used to discard the victim's body.
Although there was conflicting expert testimony regarding the
circumstances of the victim's death and whether her
wounds were pre- or post-mortem, the jury was free to believe
the testimony of the Commonwealth witnesses and disbelieve
the testimony of the defense witnesses. The jury's
verdict that appellant unlawfully killed the victim with
malice and the specific intent to kill was supported by the
evidence of record and we will not disturb that finding.
Evidence of of Rule 404(b) Crimes, Wrongs or Other
only briefed issue on appeal, appellant argues the trial
court abused its discretion in admitting evidence of criminal
allegations by the witnesses. Appellant claims the trial
court erred in its analysis of the above mentioned
Weakley factors because the only similarities
between the prior incidents and the victim's death was
that appellant allegedly used his hands on or around the neck
area of all the women. Appellant argues there were
significant differences between the encounters, including:
his reasons for arguing with the women; the location of the
incidents and his relationship to the witnesses and the
victim (one was his girlfriend while the others were
acquaintances). Appellant further argues the level of
violence in the "other acts" evidence is clearly
distinguishable from the level of violence perpetrated on the
victim. Appellant insists the dissimilarities far outweigh
their similarities such that the other acts testimony was
prejudicial and irrelevant.
Commonwealth maintains the Rule 404(b) evidence was properly
admitted for the legitimate purpose of proving
appellant's common scheme, his identity, and the lack of
accident. The Commonwealth argues the trial court, after
analyzing the Weakley factors, correctly found
significant similarities between the crimes committed against
the witnesses and the murder of the victim, including the
fact the witnesses were attacked in the neck area and the
victim was strangled and decapitated. Commonwealth's
Brief at 10-12, citing Weakley, 972 A.2d at 1189.
According to the Commonwealth, the probative value of the
other acts evidence far outweighed any unfairly prejudicial
effect as the case against appellant was mainly
circumstantial; there were no witnesses to the crime, no
confession from appellant, and the victim's body was
badly decomposed. Furthermore, the Commonwealth notes the
defense introduced expert testimony suggesting the victim
died of a drug overdose, and the other acts evidence
effectively countered the suggestion of accidental death. The
Commonwealth asserts the evidence was necessary to support
its circumstantial case and rebut the defense's theory,
as well as to prove a common plan or scheme, motive and
is admissible if it is relevant - that is, if it tends to
establish a material fact, makes a fact at issue more or less
probable, or supports a reasonable inference supporting a
material fact - and its probative value outweighs the
likelihood of unfair prejudice." Commonwealth v.
Boczkowski, 846 A.2d 75, 88 (Pa. 2004) (citations
omitted). Admissibility of evidence is within the sound
discretion of the trial court and we will not disturb an
evidentiary ruling absent an abuse of that discretion.
Commonwealth v. Arrington, 86 A.3d 831, 842 (Pa.
2014), citing Commonwealth v. Flor, 998 A.2d 606,
623 (Pa. 2010). Moreover, "evidence of prior bad acts,
while generally not admissible to prove bad character or
criminal propensity, is admissible when proffered for some
other relevant purpose so long as the probative value
outweighs the prejudicial effect." Boczkowski,
846 A.2d at 88. See also Arrington, 86 A.3d at 842,
citing Pa.R.E. 404(b)(1); Commonwealth v,
Morris, 425 A.2d 715, 720 (Pa. 1981) (law does not allow
use of evidence which tends solely to prove accused has
"criminal disposition"). Such evidence may be
admitted to show motive, identity, lack of accident or common
plan or scheme. Arrington, 86 A.3d at 842,
citing Pa.R.E. 404(b)(2); Commonwealth v.
Briggs, 12 A.3d 291, 337 (Pa. 2011) (Rule 404(b)(2)
permits other acts evidence to prove motive, lack of
accident, common plan or scheme and identity). In order for
other crimes evidence to be admissible, its probative value
must outweigh its potential for unfair prejudice against the
defendant, Pa.R.E. 404 (b)(2), and a comparison of the crimes
proffered must show a logical connection between them and the
crime currently charged. Arrington, 86 A.3d at 842.
Court has long recognized an exception to the general
inadmissibility of other crimes evidence where there is a
striking similarity - or logical connection - between the
proffered prior bad acts and the underlying charged crime. As
early as 1872, in Shaffner v. Commonwealth, 72 Pa.
60 (1872), the Court described the importance of such a
connection as follows:
It is a general rule that a distinct crime, unconnected with
that laid in the indictment, cannot be given in evidence
against a prisoner. It is not proper to raise a presumption
of guilt, on the ground, that having committed one crime, the
depravity it exhibits makes it likely he would commit
another. . . . To make one criminal act evidence of another,
a connection between them must have existed in the mind of
the actor, linking them together for some purpose he intended
to accomplish; or it must be necessary to identify the person
of the actor, by a connection which shows that he who
committed the one must have done the other.
Id. at 65. See also Commonwealth v. Wable,
114 A.2d 334, 336-37 (Pa. 1955) (there must be "such a
logical connection between the crimes that proof of one will
naturally tend to show that the accused is the person who
committed the other"); Commonwealth v. Chalfa,
169 A. 564, 565 (Pa. 1933) (other bad acts evidence
"must show some logical connection between the
offenses"). "Sufficient commonality of
factors" between the other incidents and the underlying
crime "dispels the notion that they are merely
coincidental and permits the contrary conclusion that they
are so logically connected they share a perpetrator."
Weakley, 972 A.2d at 1189.
further explaining the logical connection standard, this
Court has noted "‛much more is demanded than the
mere repeated commission of crimes of the same class, such as
repeated burglaries or thefts. The device used must be so
unusual or distinctive as to be like a signature.'"
Commonwealth v. Rush, 646 A.2d 557, 560-61 (Pa.
1994) (crimes containing uniquely similar attributes
constitute a signature), quoting McCormick on
Evidence, §190 at 449 (2d Ed. 1972) (emphasis omitted).
See also Commonwealth v. Hughes, 555 A.2d 1264, 1282
(Pa. 1989) (similarities in crimes not confined to
insignificant details represent a signature);
Weakley, 972 A.2d at 1189 (identity of perpetrator
in underlying crime may be proved through other acts where
they "share a method so distinctive and circumstances so
nearly identical as to constitute the virtual signature of
Court has consistently held there was no abuse of discretion
in allowing other crimes evidence in circumstances
substantially similar to those presented here. See, e.g.,
Commonwealth v. Elliott, 700 A.2d 1243, 1250 (Pa. 1997)
(logical connection found where three women in their twenties
were choked, beaten or both in early morning hours while
alone with defendant), abrogated on other grounds by
Commonwealth v. Freeman, 827 A.2d 385 (Pa. 2003);
Commonwealth v. Miller, 664 A.2d 1310, 1318 (Pa.
1995) (logical connection found where defendant lured women
of similar appearance into his car, took them to remote areas
to rape and beat them in a similar manner), abrogated on
other grounds by Commonwealth v. Hanible, 836 A.2d 36
(Pa. 2003); Commonwealth v. May, 656 A.2d 1335, 1341
(Pa. 1995) (logical connection found where victims were
physically similar, attacks were of similar nature, and body
of victim was found close to where defendant left other
assault victims); Rush, 646 A.2d at 561 (logical
connection found where rape victims were young black women,
had undergarments pulled from them and were attacked and
restrained with knives); Hughes, 555 A.2d at 1282-83
(logical connection found between two rapes where both
victims were sexually immature, were taken off the street,
were alone with defendant, and were choked). But see
Commonwealth v. Fortune, 346 A.2d 783, 787 (Pa. 1975)
(no logical connection where there is nothing distinctive to
separate other acts from common street crimes).
recently, this Court applied the logical connection standard
in Arrington, supra. Tondra Dennis dated defendant
Arrington for a few years, but eventually had him arrested
for a series of physically and emotionally abusive incidents
including beatings, death threats and break-ins.
Arrington, 86 A.3d at 837-38. Arrington was
incarcerated for a period of time, but was released after
Dennis recanted her allegations. Id. at 838. Ten
days after Arrington's release, Dennis was found murdered
just 357 feet from the residence Arrington previously shared
with his mother. Id. at 839.
there was no physical evidence linking Arrington to the
murder and the case was largely circumstantial, the
Commonwealth was permitted to introduce evidence of other
acts involving three of Arrington's girlfriends, their
families and their friends, as well as prior crimes against
Dennis herself. Id. at 839. The following evidence
was presented at Arrington's trial. Arrington dated
Victoria Dexter for some time and began to follow and
telephone her continuously as the relationship progressed.
Id. at 843. When Dexter attempted to end the
relationship, Arrington threatened her, set fire to her
apartment, slashed her furniture, beat her and hit her
brother with a baseball bat. Id. Arrington was
incarcerated after pleading guilty to numerous crimes, but
once paroled, he began dating Sandra Williams, whom he
assaulted three times during their two-year relationship.
Id. Arrington also pistol-whipped Williams after
seeing her with a male friend and struck another male friend
of Williams in the shoulder with an axe before firing a gun
at him. Id. Arrington was again incarcerated, and
began dating Dennis soon after his release; after
Dennis's death, Arrington began dating Tanesha Jacobs.
Id. Arrington punched Jacobs in the face for smiling
at a group of men on a local beach and Jacobs ended the
relationship; Arrington then began stalking her and
threatening to kill her and her family until she left the
country to live with her mother. Id. at 844.
Arrington continued his threats via telephone,
threatening to kill Jacobs's brother, who later died, and
when Jacobs returned to the United States for her
brother's funeral, Arrington's stalking resumed.
Id. Shortly thereafter, Arrington was arrested and
charged with Dennis's murder. Id. at 839.
being found guilty of first-degree murder and sentenced to
death, Arrington challenged the admissibility of the other
acts on direct appeal to this Court. Id. at 837,
841. The Court held the shared characteristics of
Arrington's conduct during his other relationships proved
a logical connection between his prior bad acts and the
underlying charged crime of Dennis's murder:
[The] evidence was not introduced in order to "portray him as a habitual criminal with a
propensity for violent behavior." Rather, it was offered to establish that
[Arrington] acted pursuant to a common plan or scheme. The
testimony concerning [Arrington's] treatment of other
girlfriends demonstrated repeated efforts to preserve
intimate relationships through harassment, intimidation, and
physical violence culminating in the use of a deadly weapon.
In each instance, [Arrington]: (1) monitored his
girlfriend's daily activities; (2) resorted to violence
when his partner wanted to end a relationship or interacted
with other men; (3) inflicted head or neck injuries with his
fist, a handgun, or an edged weapon; and (4) harmed or
threatened to harm members of his girlfriend's family or
male acquaintances that he viewed as romantic rivals. Given
the shared characteristics of each relationship, the evidence
fell within the purview of Pa.R.E. 404(b)(2).
Id. at 844 (citations omitted). The Court further
concluded the evidence was relevant, reliable, and probative
of guilt, and "strengthened the prosecution's case,
which consisted entirely of circumstantial evidence. . .
." Id. at 844-45. The Court also relied on the
fact that the trial court provided the jury with
"comprehensive limiting instructions." Id.
the evidence allowed in Arrington, the evidence
about appellant's prior relationships with and assaults
upon Alston, Washington and Chavez showed they were
strikingly similar to the circumstances surrounding his
relationship with the victim, her injuries, and her
subsequent death, such that there was a logical connection
between them. In each case appellant: (1) was introduced to
drug-dependent women of similar body types for purposes of
using drugs; (2) showed a sexual interest in the women,
sometimes involving prostitution; (3) resorted to violence
when the women behaved in a way he found disagreeable; (4)
inflicted injuries on each woman by targeting her neck area
with his hands, a sharp edged object, or both; and (5)
verbally threatened to kill each woman.
similarities not only establish the required logical
connection between the prior assaults and the circumstances
surrounding the victim's death, they also present a
"virtual signature" for purposes of proving common
scheme, intent and identity. They are not mere insignificant
details of crimes of the same class, where there is nothing
distinctive to separate them from, for example, common street
crimes. Compare Hughes, 555 A.2d at 1283 (logical
connection where similarities are not confined to
insignificant details but rather represent a signature)
with Fortune, 346 A.2d at 787 (no logical connection
where there is nothing distinctive to separate other acts
from common street crimes). See also Weakley, 972
A.2d at 1189 (sufficient commonality of factors between
crimes dispels notion they are merely coincidental and
permits conclusion they are so logically connected as to
share a perpetrator). There was substantial evidence
presented that Deanna Null engaged in sex and drug use with
appellant, was beaten, strangled, and had her throat cut by a
sharp-edge weapon, ultimately resulting in her beheading and
death. As in Arrington, the only material difference
between the prior assaults and the underlying charged crime
is that appellant's typically violent behavior finally
progressed to a fatal attack. However, this difference does
not undermine the analysis leading to admissibility of the
evidence regarding the prior incidents. See
Arrington, 86 A.3d at 844-45. See also Hughes,
555 A.2d at 1283, citing Commonwealth v. Clayton,
483 A.2d 1345, (Pa. 1984) (other acts evidence involving
prior choking victim who was injured but not killed
admissible to show defendant killed second choking victim);
Weakley, 972 A.2d at 1190 (one difference between
the crimes at issue which fails to undo identity analysis is
that other crime did not culminate in murder).
logical connection between the other crimes and the
underlying charged crime has been established, as it was
here, the court must also determine whether the probative
value of the evidence outweighs any unfair prejudice.
See Pa.R.E. 404(b)(2) (crimes, wrongs or other acts
evidence admissible only when its probative value outweighs
its potential for unfair prejudice); Morris, 425
A.2d at 720 (other acts evidence admissible when probative
worth outweighs tendency to unfairly prejudice jury).
Obviously, the impact of introducing evidence of other crimes
is significant and may be highly prejudicial.
Fortune, 346 A.2d at 787. However, such evidence is
also highly probative when the Commonwealth's case is
otherwise based largely on circumstantial evidence. See
Arrington, 86 A.3d at 844-45 (prior crimes evidence
plays important role where prosecution is based on
circumstantial evidence); Miller, 664 A.2d at 1319
(other acts evidence necessary when Commonwealth only had
circumstantial evidence); Weakley, 972 A.2d at 1191
(where prosecution's case is largely circumstantial
specific purpose of other crimes evidence is "to give
jury the insight into the significance of these
circumstances"). Although the Commonwealth presented
evidence the victim's hands were found behind the walls
in appellant's home, this circumstantial evidence alone
did not establish the victim's death was not an
accidental overdose (as suggested by the defense), and that
appellant did not, for example, merely dispose of her body
afterwards. For this reason, evidence regarding
appellant's assaults on Alston, Washington and Chavez was
relevant and probative to show lack of accident, and that
appellant acted intentionally in all instances with a common
scheme: violently attacking a woman with whom he engaged in
drug use and sex, in the neck, after a disagreement.
Moreover, as in Arrington, the trial court's
detailed instructions properly informed the jury of the
limited and narrow purpose for which the evidence was
admitted and thus restricted any unfair prejudicial effect.
See N.T. 11/7/14 at 59-60, 88; N.T. 11/14/14 at
110-112; Arrington, 86 A.3d at 845 (comprehensive
limiting instructions to be considered when balancing
probative value and prejudicial impact); Boczkowski,
846 A.2d at 89 (limiting instructions weigh in favor of
upholding admission of other bad acts evidence).
we hold the trial court did not abuse its discretion in
admitting Rule 404(b) evidence regarding other crimes, wrongs
or acts by appellant. The witnesses' testimony about
their encounters with appellant shared such strikingly
similar circumstances and characteristics with the evidence
surrounding the victim's death that it tended to
establish the elements of first-degree murder instead of
accidental death, and also that appellant was the
perpetrator. Furthermore, the probative value of the evidence
to the Commonwealth's largely circumstantial case clearly
outweighed any unfair prejudicial effect, which was properly
limited by the trial court's cautionary instructions to
the jury. Appellant's claim the evidence should not have
been admitted therefore fails.
Statutory Review of Death Penalty Verdict
have determined there was sufficient evidence to sustain
appellant's conviction for first degree murder, and his
claim regarding Rule 404(b) evidence does not warrant relief,
we now determine whether the death sentence was the product
of passion, prejudice, or any other arbitrary factor, or the
evidence does not support the finding of at least one
aggravating circumstance. See Arrington, 86 A.3d at
857, citing 42 Pa.C.S. §9711(h)(3). Our careful
review of the record reveals the sentence was not the product
of passion, prejudice, or any other arbitrary factor. To the
contrary, the sentence was based on properly admitted
evidence showing appellant intentionally killed the victim by
cutting her throat with a knife. We further conclude the
evidence was sufficient to support the aggravating
circumstance of killing by means of torture as the
Commonwealth expert witnesses testified the victim was
severely beaten and strangled before being decapitated while
she was still alive. Accordingly, we affirm the judgment of
of sentence affirmed.
Prothonotary of this Court is directed to transmit the
complete record of this case to the Governor of Pennsylvania
in accordance with 42 Pa.C.S. §9711(i).
Todd and Mundy join the opinion. Chief Justice Saylor joins
Parts I, II and IV of the opinion and files a concurring
Parts I, II and IV of the majority opinion and concur in the
result relative to the balance.
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"). 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.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.,
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).
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.
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
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 Wigmore §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.
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).
explained by a leading commentator, per the doctrine of
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
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
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)).
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,  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
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.Id. at
65-68 ("[T]he ...