[J-81-2016] [MO:Dougherty, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

CHARLES RAY HICKS,

Appellant

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No. 718 CAP

Appeal from the Judgment of Sentence 

entered on 1/6/2015 in the Court of 

Common Pleas, Monroe County, 

Criminal Division at No. CP-45-CR0000391-2008

ARGUED: September 13, 2016

DISSENTING OPINION

JUSTICE WECHT DECIDED: March 28, 2017

Rule 404 of the Pennsylvania Rules of Evidence generally bars the use of prior 

bad acts evidence to prove that a person acted in accordance with his previous 

conduct. See Pa.R.E. 404. The party seeking admission of the evidence cannot use 

those acts or behaviors to convey to the jury that the opposing party must have done 

“X” because he has done “X” before, or many times before. Justice Donohue cogently 

describes the prejudicial impact of admitting such evidence, and the manner in which it

diminishes the Commonwealth’s obligation to satisfy its constitutional burden of proof 

beyond a reasonable doubt. See Diss. Op. at 1-2 (citing Shaffner v. Commonwealth, 72 

Pa. 60, 65 (1872)). 

Rule 404 is challenging, and the consequences of its erroneous application are 

significant. Basic human nature and rational thought tend to default toward the very 

logic that the rule prohibits. It is natural and well-nigh inevitable that a juror considers a 

person to be a drug dealer when told that the same person has dealt drugs multiple 
[J-81-2016] [MO: Dougherty, J.] - 2

times in the past, or that a juror will conclude that, if a person has assaulted women 

before, he likely will do so again. Although we presume that jurors follow a trial judge’s 

instructions, see Commonwealth v. Chmiel, 30 A.3d 1111, 1184 (Pa. 2011), it is difficult 

to set aside opinions that arise naturally and to confine evidence of an inflammatory 

nature to a purpose whose limitations conflict with intuitive thought processes. I have 

no doubt that jurors across this Commonwealth are capable of rising to this challenge, 

and that they do so on a daily basis in our courtrooms. This does not, however, obviate 

the fact that putting aside such innate reactions is a daunting task for any person. 

Moreover, Rule 404’s exceptions are both numerous and broad. See Pa.R.E. 

404(b)(2). This creates the obvious danger that the exceptions will devour the rule. If

courts do not adhere scrupulously to the terms and purposes of the rule, this danger 

becomes reality. 

These concerns, as well as those highlighted by Justice Donohue, illuminate the 

problems that can taint otherwise fair trials when Rule 404 is incorrectly applied. 

Moreover, they underscore the requirement that prior bad acts evidence must be strictly 

limited and admitted only when passed through the rigorous inquiry articulated skillfully

by Justice Donohue. The contested evidence in this case does not satisfy that inquiry. 

For that reason, and in light of my concerns set forth above, I respectfully dissent from 

the learned Majority’s holding that the prior bad acts evidence was admissible. I join in 

the merits portion of Justice Donohue’s dissenting opinion. 

I also agree with Justice Donohue that Hicks is entitled to a new trial, albeit on 

slightly different grounds. Unlike Justice Donohue, I believe that the trial evidence 

would have sufficed to render the trial court’s error harmless. The discovery of the 

victim’s severed hands in Hicks’ walls was particularly compelling. Oddly enough, the 

Commonwealth affirmatively has chosen to concede and forego this argument. 
[J-81-2016] [MO: Dougherty, J.] - 3

Throughout this case, including at oral argument before this Court, the Commonwealth 

has insisted that the prior bad acts evidence was essential to proving Hicks guilty of the 

murder. See Diss. Op. at 21-22 (setting forth each instance in which the 

Commonwealth asserted the essentiality of the evidence). From the outset of this 

appeal, the Commonwealth has elected to concede that, if this Court deemed the 

admission of the evidence erroneous, such error would not be harmless, inasmuch as

the Commonwealth viewed the evidence as necessary to prove Hicks’ guilt beyond a 

reasonable doubt.1 

I confess my surprise at the Commonwealth’s position, because the discovery of 

the victim’s hands buried in Hicks’ wall seems uniquely powerful evidence in and of 

itself. Other parts of the victim’s dismembered body were found within close proximity 

to Hicks’ residence. The police found blood on Hicks’ boots and on the passenger seat 

of his vehicle. The victim’s DNA was located on a scrub brush found in Hicks’ home. 

Moreover, fingerprints were recovered from garbage bags that also were found in his

home. The prints belonged to Hicks and the bags matched those that were used to 

dispose of the victim’s severed body parts. If there was not a mountain of evidence, 

 

1

In this case, the Commonwealth has never invoked the harmless error doctrine. 

Ordinarily, this might raise the question of whether the Commonwealth must invoke the 

doctrine before we may apply it. Generally, I adhere to our precedential declaration that 

“this Court may affirm a judgment based on harmless error even if such an argument is 

not raised by the parties.” Commonwealth v. Allshouse, 36 A.3d 163, 182 (Pa. 2012). 

However, there is apparent tension between that principle and the well-settled rule that 

the “Commonwealth bears the burden of demonstrating harmless error.” 

Commonwealth v. Chmiel, 889 A.2d 501, 521 (Pa. 2005). Although I believe that we 

can apply the doctrine without prior invocation, it seems inconsistent to assign to a party 

a burden of proof that is applicable only in appellate proceedings, while determining 

simultaneously that the party has satisfied that burden without the party raising or 

addressing the doctrine in any way. Nonetheless, in light of the Commonwealth’s 

unequivocal abandonment of the harmless error claim here, any tension between these 

principles can (and should) be resolved in another case. 
[J-81-2016] [MO: Dougherty, J.] - 4

there was a formidable hill. Although this evidence appears compelling,2the 

Commonwealth captains its own ship. And it has consistently if inscrutably maintained 

that this evidence was not enough to convict Hicks without admission of the prior bad 

acts.

I would hold the Commonwealth to its litigation position, as I believe courts 

should accept and enforce party admissions or concessions when reasonable.3 It is 

particularly important to do so in a situation such as this, because the Commonwealth 

investigated, charged, and prosecuted Hicks. Having prepared and undertaken the trial 

of this case, the Commonwealth undoubtedly has a knowledge and understanding of its 

many nuances far more intimate than I ever could obtain from my cold and detached 

review of the paper record. 

Because the Commonwealth has conceded the harmless error inquiry, I would 

remand the case for a new trial. Because the Majority holds otherwise, I respectfully 

dissent. 

 

2

There was still more. For example, one forensic pathologist, Dr. Ross, opined 

that numerous, violent injuries were inflicted upon the victim before her death, including 

at least seventeen different impacts to her head and neck. Dr. Ross also determined 

that the victim was strangled while still alive. These injuries were particularly relevant 

because Hicks was the last person to be seen with the victim while she was alive.

3 See generally Commonwealth v. Busanet, 54 A.3d 35, 59 (Pa. 2012) (rejecting 

ineffective assistance of counsel claim, in part, because of the appellant’s concession of 

a relevant legal point).