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Commonwealth v. Gad

Superior Court of Pennsylvania

June 11, 2018

AHMED F. GAD Appellant

          Appeal from the Judgment of Sentence July 26, 2017 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0003326-2016

          BEFORE: OTT, J., McLAUGHLIN, J., and STEVENS [*] , P.J.E.


          STEVENS, P.J.E.

         Appellant Ahmed F. Gad appeals from the judgment of sentence entered in the Court of Common Pleas of Northampton County following his conviction by a jury on the charges of simple assault and harassment.[1] After a careful review, we affirm.

         The relevant facts and procedural history are as follows: Appellant was arrested in connection with the domestic abuse of Eva Fisher, his wife. On March 3, 2017, the Commonwealth filed notice of its intent to introduce evidence of prior crimes, wrong, or acts pursuant to Pa.R.E. 404(b)(2). Relevantly, the Commonwealth sought to introduce evidence relating to Appellant's prior physical abuse and witness intimidation of his former paramour, Maryam Ezatt. Appellant filed a response in opposition to the introduction of the evidence. On April 3, 2017, the trial court granted the Commonwealth's request to admit the evidence pursuant to Pa.R.E. 404(b)(2).

         Appellant, represented by counsel, proceeded to a jury trial on June 6, 2017. At trial, the Commonwealth presented the testimony of Police Officer Kevin Lillis, physician's assistant Monika Garcia, and Appellant's former paramour, Ms. Ezatt.[2]

         Specifically, Officer Lillis testified that, on September 12, 2016, Ms. Fisher approached him requesting assistance in finding a homeless shelter for her to stay in for the night. N.T., 6/6/17, at 23. Officer Lillis observed Ms. Fisher had "a contusion on the left side of her face along her cheekbone and she had contusions also behind her ear, and her ear was swollen. Also, around her neck as well as a swollen lip." Id. Officer Lillis summoned an ambulance, which transported Ms. Fisher to the emergency room for treatment. Id. at 26. On September 17, 2016, when the officer went to the couple's home to arrest Appellant, Ms. Fisher answered the door. Id. at 27.

         Ms. Garcia testified she treated Ms. Fisher on September 12, 2016, in the emergency room. Id. at 34. She testified Ms. Fisher had bruising to the left side of her face, cheek, forehead, and ear. Id. at 35. Ms. Fisher reported she had been assaulted and slapped in the face. Id. at 36.

         Ms. Ezatt testified she used to be Appellant's paramour, and on September 30, 2013, Appellant hit her in the face and then intimidated her in an attempt to force her not to cooperate with the police. Id. at 41-42. Ms. Ezatt testified that her relationship with Appellant ended in 2015; however, Appellant resumed contact with her in July of 2016. In the fall of 2016, Appellant texted her, indicated he was "in trouble, " and said he "needed her help." Id. at 43. Ms. Ezatt testified Appellant admitted to her that he had hit his wife and he was pressuring her to drop the charges. Id. at 45.

         Appellant testified in his own defense. Specifically, he testified that he was not at home on September 12, 2016; but rather, he was at work all day. Id. at 78. He specifically denied striking his wife or telling her not to appear for court. Id. at 79-81.

         At the conclusion of all testimony, the jury convicted Appellant of the offenses indicated supra, and on July 26, 2017, the trial court sentenced Appellant to twelve months to twenty-four months in prison for simple assault and a consecutive forty-five days to ninety days in prison for harassment. Appellant filed a timely motion for reconsideration of sentence, which the trial court denied on August 4, 2017. This timely appeal followed. All Pa.R.A.P. 1925 requirements have been met.

         Appellant sets forth the following issue in his "Statement of Questions Involved" (verbatim):

Whether the trial court erred as a matter of law in granting the Commonwealth's Motion to Introduce Evidence of Prior Bad Acts under Pa.R.E. 404(b) where the evidence was overly prejudicial to [Appellant]?

Appellant's Brief at 4.

         Initially, we note:

[t]he admission of evidence is solely within the discretion of the trial court, and a trial court's evidentiary rulings will be reversed on appeal only upon an abuse of that discretion. An abuse of discretion will not be found based on a mere error of judgment, but rather occurs where the court has reached a conclusion that overrides or misapplies the law, or where the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.

Commonwealth v. Woodard, 634 Pa. 162, 129 A.3d 480, 494 (2015) (quotation marks, quotation, and citation omitted).

         The general threshold for admissibility of evidence is relevance. 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 to determining the action. Pa.R.E. 401. All relevant evidence is admissible, subject to certain exceptions. Pa.R.E. 402. Relevant to this claim, evidence of another crime, wrong, or other act is not admissible to prove a person's character or to show that, on a ...

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