For the Defense - Volume 1, Issue 3 - 2016 - 70

indirectly referenced the concept of reverse 404(b) evidence. "We find Williams, together with Patterson, Weiss, and Chmiel, persuasive. Rule 404(b) precluded King from admitting evidence of Cannon's murders to show that he had a propensity to murder and, therefore, killed the victim in this case. King argues that he should have been able to introduce propensity evidence tending to show Cannon was the real killer because it was highly relevant. That argument misses the point, because Rule 404(b)(1) makes propensity evidence inadmissible subject to Rule 404(b)(2)'s limited exceptions. See Commonwealth v. Hicks, 625 Pa. 90, 91 A.3d 47, 53 (Pa. 2014). King's claim of an alleged lack of prejudice to the Commonwealth also misses the mark. The prejudice inquiry required in criminal cases by the second sentence of Rule 404(b)(2), see footnote 6, supra, comes into play only if the other acts evidence is admissible under Rule 404(b)(2), i.e., for a purpose other than showing propensity. In other words, any lack of prejudice does not nullify Rule 404(b) (1)'s prohibition against propensity evidence. Because King's purpose in introducing Cannon's murder charges was to show his propensity to commit murder - which is barred by Rule 404(b)(1) - he cannot show that his claim has arguable merit."16 While Pennsylvania has yet to issue a precedential opinion on "reverse 404(b) evidence," it appears to be only a matter of time before it does.17 When issued, it will likely walk the path already plowed by Stevens and its progeny. That is, to use this evidence against the Commonwealth the "reverse 404(b) evidence" must have probative value, which depends, in large part, on the degree of similarity between the crimes charged and the "reverse 404(b) evidence" sought to be admitted. The evidence cannot be used to show 70 For The Defense | Vol. 1, Issue 3 propensity, as prohibited by Pa.R.E. 404 (b)(1). It must be used for a purpose permitted by Pa.R.E. 404(b)(2). And, finally the "reverse 404 (b) evidence" must be balanced against other considerations like unfair prejudice, waste of time and confusion. Successful clearance of each evidentiary hurdle will finally give you the chance to use Rule 404(b) evidence as an offensive weapon against the Commonwealth. Notes 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. United States v. Williams, 458 F.3d 312, 315 (3d Cir. 2006). United States v. Stevens, 935 F.2d 1380, 1402 (3d Cir. 1991). Id. United States v. Stevens, 935 F.2d 1380 (3d Cir. 1991). The most recent application of Stevens in the 3rd Circuit is United States v. Ushery, 09-1611 (3d Cir. Nov. 5, 2010). Stevens, 935 F.2d at 1401. Stevens, 935 F.2d at 1383. Id. at 1384. Commonwealth v. King, 125 A.3d 462 (Pa. Super. July 28, 2015)(J. Stabile); see also, Commonwealth v. Handy, 1656 EDA 2013 (Pa. Super. July 14, 2015) ("No Pennsylvania court has squarely addressed the use of reverse Rule 404(b) evidence")(J. Stabile), allocator denied, 130 A.3d 1287 (Pa. Dec. 30, 2015). Commonwealth v. Patterson, 91 A.3d 55, 72 (Pa. 2014). Commonwealth v. Weiss, 81 A.3d 767, 806-07 (Pa. 2013). Commonwealth v. Chmiel, 889 A.2d 501, 534-35 (Pa. 2005). Counsel is reminded the Superior Court's Internal Operating Procedures, 65.37, states that "[a]n unpublished memorandum decision shall not be relied upon or cited by a court or a party in any other action or proceeding...". Commonwealth v. Glover, 1153 EDA 2014 (Pa. Super. Aug. 13, 2015). Commonwealth v. King, 2533 EDA 2014 (Pa.Super. July 28, 2015). King, 125 A.3d 462 (Pa. Super. 2015). Id. Judge Stabile authored King and was joined by Ford Elliott and Fitzgerald. Glover was written by Judge Bowes and joined by Judges Mundy and Fitzgerald. Also, Handy, supra, was written by Judge Stabile and joined by Judge Bowes and now Supreme Court justice Christine Donohue.

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