For the Defense - Volume 1, Issue 3 - 2016 - 69

Corner RULES the use of reverse Rule 404(b) evidence."8 A handful of courts have, however, mentioned it in rather oblique fashion. In Commonwealth v. Patterson, the Pennsylvania Supreme Court found the trial court did not err in precluding evidence of a third party's motive to commit the crime, because '[a]ppellant offered no evidence to suggest that [the third party] was charged, let alone convicted, of a crime that bore substantial similarity to those with which [a]ppellant was charged.'9 In Commonwealth v. Weiss, the Pennsylvania Supreme Court reiterated that "the defense may introduce evidence that someone else committed a crime which bears a highly detailed similarity to the crime with which the defendant is charged."10 And, in Commonwealth v. Chmiel, the Court held that the trial court properly precluded the defendant from questioning a witness about a prior burglary which did not fall within the permitted purposes of Rule 404(b), but merely tended to establish an action in conformity with the prior act.11 The beginning of the end is near. The Pennsylvania Superior Court has actually mentioned the phrase "reverse 404(b) evidence" in a pair of recent memorandum decisions. In Commonwealth v. Glover, the defendant urged the court to follow the lead of the federal courts in its application of other crimes evidence under F.R.E. 404(b) when offered by the accused.12 In response, the Superior Court said: We see little difference between the federal courts' treatment of reverse 404(b) evidence and our own approach. In each instance, the evidence must be probative. Similarity and temporal proximity in the two crimes are factors that tend to make the evidence relevant. . . . The crimes at issue herein occurred more than one year apart at locations one-half mile away from each other. [record citation omitted]. The fact that at least six shots were fired from automatic or semi-automatic weapons, one of which struck the torso of the victim in both cases, does not make it likely that the same person was the shooter. Missing herein was the type of distinctive similarity in the details and proximity in time that is probative of a common identity among the perpetrators of the two crimes.13 A month before Glover was issued, the Superior Court decided Commonwealth v. King.14 King was a post-conviction case where the defendant claimed trial counsel failed to object when evidence of a third party's motive to commit murder and his own pending murder charges were excluded. King argued that the third party's other acts should have been admitted. While recognizing the idea of "reverse 404(b) evidence," the Court was able to decide the matter on far easier grounds. "[The Defendant] misreads Stevens and we write to clarify that Rule 404(b)'s proscription against propensity evidence applies regardless of by whom, and against whom, it is offered. Under Stevens, we grant defendants more leeway in introducing 'bad acts' evidence under one of the Rule 404(b) exceptions-requiring only that its probative value is not substantially outweighed by Rule 403 considerations such as unfair prejudice, undue delay or confusion of the issues. But Stevens did not afford defendants more leeway in admitting propensity evidence in violation of the prohibition of Rule 404(b). Because the only purpose for which [the appellant] sought to introduce [another person's] prior conviction was to show that he has a propensity to carry firearms, the [d]istrict [c]ourt correctly excluded the evidence. United States v. Williams, 458 F.3d 312,314 (3d Cir. 2008)."15 The Williams decision was not the only case with influence. The King panel was persuaded by the three decisions which, heretofore, had only Vol. 1, Issue 3 | For The Defense 69

Table of Contents for the Digital Edition of For the Defense - Volume 1, Issue 3 - 2016