A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose

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COMMONWEALTH of Pennsylvania v. Paul Aaron ROSS, Appellant, No. 1566 WDA 2009,

2012 WL 4801433, 2012 PA Super 220 (Oct. 10, 2012) was an appeal from a Judgment of Sentence entered by President Jolene Judge Kopriva of the Court of Common Pleas of Blair County, Criminal Division, CP–07–CR–0002038–2004. The case was before Court En Banc Judges STEVENS,BENDERPANELLADONOHUEALLENMUNDYOLSONOTT and WECHT. The Opinion was written by Judge DONOHUE. Judge ALLEN filed a Dissenting Opinion in which Judges STEVENSBENDER and PANELLA joined.

 

Ross appealed following his convictions for first-degree murder, aggravated assault, involuntary deviate sexual intercourse, unlawful restraint, simple assault, false imprisonment, and indecent assault. His attorney, Thomas M. Dickey of Altoona, raised the following issues for appeal:

 

1. Did the trial court abuse its discretion in failing to grant Ross’ pro se and trial counsel’s requests for a continuance in order to interview witnesses, obtain experts and review reports when it denied motions for continuance, the same resulting in a violation of Ross’ rights to a fair trial?

 

2. Did the trial court abuse its discretion by admitting improper character evidence and permitting the testimony of certain ‘bad act’ witnesses?

 

The Court held that the trial court had manifestly abused its discretion in refusing to grant Ross a continuance to permit his newly retained private counsel the opportunity to prepare for trial. The Court also decided that the trial court abused its discretion in allowing the Commonwealth to introduce the testimony of three of Ross’ former romantic partners regarding instances of domestic abuse as “prior bad acts” evidence under Rule 404(b) of the Pennsylvania Rules of Evidence.

 

After removing his appointed counsel, Ross retained the services of a private attorney, Mr. Dickey, who filed his Praecipe for Appearance two weeks prior to the commencement of jury selection on October 21. On October 17 and October 21, 2005, Attorney Dickey filed two supplemental omnibus pre-trial motions, each requesting a continuance to allow for time to prepare a defense at trial. Ross’ written continuance motions set forth in considerable detail the areas in which the Commonwealth intended to present expert evidence at trial, but for which appointed counsel had neither obtained expert witnesses nor made any sustained effort to prepare a cogent response. For example, the Commonwealth had submitted reports on hair samples, serology results, shoe testimony, shoe prints, soil results, bite marks, DNA, etc. and planned to introduce the testimony of a doctor to testify regarding scratches and abrasions on Ross’ body.  As a result, Ross advised the trial court that in the event the court would permit these opinions, the defendant would need to have experts appointed including but not limited to a criminologist. For these reasons, the motion requested a continuance in order for the defendant to rebut the Commonwealth’s findings and opinions, including the appointment of additional experts.

 

The trial court’s wrongful refusal to grant a continuance resulted in prejudice to Ross. Attorney Dickey had to give his opening statement to the jury without knowing the opinions of his expert witnesses, one of whom had been retained within days of the start of trial and was still reviewing the bulk of the Commonwealth’s physical evidence and formulating opinions as the trial proceeded. More importantly, Attorney Dickey was required to cross-examine Commonwealth experts without having received the opinions of his own experts.

 

Ross’ experts did not assist in the preparation of Ross’ defense, either prior to or during trial. None of Ross’ three expert witnesses prepared a written report or otherwise transmitted any written summary of their findings and opinions to Attorney Dickey in advance of their testimony. Ross’ experts were still reviewing evidence at that time and that he was not yet in possession of the results of their work. The lack of consultation between Attorney Dickey and the expert witnesses is entirely understandable given the lack of available time to do so. Attorney Dickey worked over lunches, weekends and into the evenings. He lacked the time to engage in significant consultation with his expert witnesses. Ross’ experts could not function as aides in the preparation of his defense because there simply was no time for it.

 

Ross was also prejudiced by Attorney Dickey’s inability to conduct further investigation into possible defenses. He had no time or opportunity to interview more than 50 witnesses contacted by the state police during the investigation into Miller’s death. Moreover, Attorney Dickey had no ability to investigate and/or prepare defenses potentially available to Ross. Thus it was prejudicial to Ross not to provide his counsel with a reasonable amount of time to develop and prepare a defense prior to trial, particularly given the severity of the charges and possible sentence.

In light of the multiple factually supported entreaties by trial counsel for continuances in this capital murder case, the trial court failed to provide any good reason for denying Ross’ motions for continuance.

 

The trial court’s actions essentially created a “fire drill” scenario, in which defense counsel was required to review a plethora of evidence to prepare for trial at the same time he and his experts were still receiving physical evidence and attempting to formulate responses to the Commonwealth’s well-developed forensic case. The trial court’s efforts to allow defense counsel adequate time for trial preparation, including a one and one half day delay, did not adequately served their purpose. At the start of trial, the record on appeal unquestionably established that the trial court was aware that defense experts had not yet formulated opinions on key issues like Miller’s time of death, and that as a result Attorney Dickey’s ability to defend Ross against multiple charges—including first-degree murder with a possible death sentence—was seriously compromised. The record on appeal does not reflect any support for a contention that Ross’ motions for continuance were merely efforts to delay, as no prior continuances had been granted at any time to any party.

 

The Court noted that Attorney Dickey did the best job that he could in representing Ross under the circumstances presented, but he undoubtedly could have done a more effective job if he had been permitted adequate time to prepare a defense. Instead, as a result of the trial court’s unreasonable insistence on rushing the case to trial, Attorney Dickey was put in the untenable position of having to prepare his case at the same time that he was trying it. Given the severity of the charges and the complexity of the evidence in this case, the trial court manifestly abused its discretion in refusing to grant Ross’ multiple requests for a continuance especially where the Commonwealth’s case was highly circumstantial, highly contested, and based extensively on forensic evidence. Because the record in this case reflects that the trial court’s denial of Ross’ multiple motions for continuance was based on a “myopic insistence upon expeditiousness” without any reasonable basis for delaying the trial for a single trial term, the Superior Court vacated the judgment of sentence and remanded the case for a new trial.

 

As to Ross’ second issue on appeal, the trial court erred in admitting the testimony of three of Ross’ former romantic partners, all of whom testified to acts of violence committed by Ross during their sexual relationships with him. This “prior bad acts” testimony was barred by Rule 404(b)(1) of the Pennsylvania Rules of Evidence.

 

The trial court found a “logical connection” based upon the “many similarities between the prior bad acts of the defendant and the killing in this case.”The mere identification of similarities between the prior bad acts and the crime at issue, however, does not establish motive. Instead, there must be a firm basis for concluding that the crime currently on trial “grew out of or was in any way caused by the prior set of facts and circumstances.” The Commonwealth suggested that the prior assaults demonstrated that women in Ross’ presence risked being physically and/or sexually assaulted if they were unreceptive to his sexual advances. The testimony at trial, however, did not support this hypothesis. The bad acts testimony did not establish any motive for Ross’ alleged subsequent attack on this victim.

 

The Commonwealth contended that because Ross was charged with first-degree murder, which requires intentional conduct, his state of mind was at issue. Judge Donohue disagreed. Intent is a mental state that can be inferred from conduct. Given the circumstances surrounding Miller’s murder, including the mutilation of the body, the use of duct tape, and the bite mark on her breast, there can be no question that this was an intentional killing.Ross’ only defense was that he was not the perpetrator, and he did not raise any defense of accident, mistake, or lack of required intent. Accordingly, prior bad acts testimony should not have been permitted with regard to intent.

 

According to the Commonwealth, Ross committed prior assaults on women that consisted of sexual assault, physical assault, sexual penetration/attempted penetration with a foreign object, and the defendant was drinking at the time of most of these assaults. Since Ms. Miller was the victim of sexual assault, physical assault, sexual penetration with a foreign object and defendant was allegedly drinking the night of Miller’s death, the similarities between the prior bad acts of Ross and the killing of Miller were of significant and substantial detail to allow the Commonwealth to present testimony of defendant’s prior bad acts to attempt to prove the identity of who committed the death of Miller.

However, the Court stated that these similarities were not so “unusual and distinctive as to be like a signature.” To the contrary, the testimony of the three women established, at most, the commission of crimes or conduct “of the same general class,” namely physical and/or sexual assaults, accompanied by the use of foreign objects. More importantly, the trial court failed to consider the important differences between the prior bad acts testimony and Miller’s murder. Significantly, entirely disregarded by the trial court was the fact that the attack on Miller involved a level of brutality far in excess of the incidents of physical and/or sexual abuse described by these three ladies. Furthermore, Miller’s murder, in significant contrast, did not involve domestic abuse. No testimony at trial established that Miller and Ross had even met each other before that evening.

 

Accordingly, the testimony of the three women did not establish any particular modus operandi or other pattern of conduct on Ross’ part so unusual and distinct as to constitute a “signature” identifying him as Miller’s killer. The prior bad acts testimony detailing instances of domestic violence should not have been admitted to prove identity.

 

Also, the prior bad acts testimony proffered by the Commonwealth should not have been admitted to show a common scheme, plan or design as it did not establish a pattern of conduct on Ross’ part so distinctive that “proof of one tends to prove the others.” Instead, the prior bad acts testimony demonstrated that Ross was a domestic abuser of women with whom he was involved in on-going romantic relationships, and did not show a unique “signature” modus operandi relevant to Miller’s murder. Indeed, the profound dissimilarity in the level of brutality inflicted on Miller, along with the bite on her breast and the extensive use of duct tape to bind her, have no parallel to the incidents of domestic abuse described by the three women.

 

One of these prior assaults occurred more than eight years prior to Miller’s murder, and was too remote in time to be admissible under the common scheme, plan or design exception. While prior bad acts evidence has been permitted in a few cases despite a significant lapse in time, in those cases the court determined that there were strong similarities between the prior conduct and the crimes at issue. Here, the testimony should have been excluded on remoteness grounds.

 

To preserve the purpose of Rule 404(b)(1), more must be required to establish an exception to the rule—namely a close factual nexus sufficient to demonstrate the connective relevance of the prior bad acts to the crime in question. No such close factual nexus exists in this case, and the Court has warned that prior bad acts may not be admitted for the purpose of inviting the jury to conclude that the defendant is a person of unsavory character and thus inclined to have committed the crimes with which he is charged. The testimony of the three women was used to establish that Ross was an abusive man who in the past was physically and sexually abusive to his romantic partners so that the improper inference could be drawn that he was capable of, and had the propensity for, committing the types of grotesque acts of physical and sexual abuse inflicted upon Miller resulting in her death.

 

Therefore, the judgment of sentence was vacated and the case was remanded for a new trial.

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Comments on: "Superior Court grants new trial due to denial of continuance, inadmissible evidence of prior bad acts" (1)

  1. […] Superior Court grants new trial due to denial of continuance … His attorney, Thomas M. Dickey of Altoona, raised the following issues for appeal: 1. Did the trial court abuse its . After removing his appointed counsel, Ross retained the services of a private attorney, Mr. Dickey, who filed his Praecipe for Appearance two weeks prior to the commencement of jury selection on October 21. On October 17 and October 21, Court scandal at the Feb. 22, 2011 meeting of the Criminal Justice Section and the Civil Rights Committee. […]

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