J-S33043-18

2018 PA Super 160

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* Former Justice specially assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA

v.

AHMED F. GAD 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3100 EDA 2017

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.

OPINION BY STEVENS, P.J.E.: FILED JUNE 11, 2018

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 

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1 18 Pa.C.S.A. §§ 2701(a)(1) and 2709(a)(1), respectively. 
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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 

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2 Although Appellant’s wife testified against Appellant at his September 2016 

preliminary hearing, Appellant’s wife did not appear at the trial. Officer Lillis 

testified that neither law enforcement officials nor her family had any contact 

with her since March of 2017. N.T., 6/6/17, at 28.
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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. 
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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 particular occasion, the person acted in 

accordance with that character. Pa.R.E. 404(b)(1). However, such evidence 

may be admissible to prove
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(1) motive; (2) intent; (3) absence of mistake or accident; (4) a 

common scheme, plan or design embracing commission of two or 

more crimes so related to each other that proof of one tends to 

prove the others; or (5) to establish the identity of the person 

charged with the commission of the crime on trial, in other words, 

where there is such a logical connection between the crimes that 

proof of one will naturally tend to show that the accused is the 

person who committed the other.

Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491, 497 (1988) (citation 

omitted). Our Supreme Court “has also recognized the res gestae exception, 

permitting the admission of evidence of other crimes or bad acts to tell ‘the 

complete story.’” Commonwealth v. Hairston, 624 Pa. 143, 84 A.3d 657, 

665 (2014) (citations omitted).

Nevertheless, “this evidence is admissible only if the probative value of 

the evidence outweighs its potential for unfair prejudice.” Lark, 518 Pa. 290, 

543 A.2d at 497. “Unfair prejudice” means a tendency to suggest a decision 

on an improper basis or to divert the jury’s attention away from its duty of 

weighing the evidence impartially. Pa.R.E. 403, comment. Thus, the 

admission of the evidence “becomes problematic only when its prejudicial 

effect creates a danger that it will stir such passion in the jury as to sweep 

them beyond a rational consideration of guilt or innocence of the crime on 

trial.” Commonwealth v. Sherwood, 603 Pa. 92, 982 A.2d 483, 496–98 

(2009) (quotation marks and quotation omitted).
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With these legal precepts in mind, we turn to an examination of the 

relevant testimony, which occurred during the Commonwealth’s direct 

examination of Ms. Ezatt:3

Q. When did you move to Pennsylvania?

A. End of June 2011.

Q. Maryam, I’d like to direct your attention to September, 

30th, 2013, could you previously [sic] describe for the jury, what, 

if anything, happened on that date involving you and [Appellant]?

A. Um, we were in an argument, and I was the one driving, 

and he started to like hit me and punch me in the face. And then 

I stopped the car in the middle of the street, and I ran from the 

car and some people were helping me. And, like, I called the 

police and he got arrested, and they took me to the hospital that 

night.

Q. And while that assault case was pending, did [Appellant] 

contact you?

A. Yes, he did.

Q. And, what, if anything did [Appellant] tell you to do with 

regard to that case?

A. He asked me to. He wrote a note to me, make it ready 

for me, and ask[ed] me to go to Lehigh County to the public 

defender’s office to give them a note that I wanted to drop the 

charges for him.

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3 We note with disapproval that Appellant has not set forth the precise 

testimony or citation to the record with regard to his claim. Rather, he argues 

generally that the trial court erred in granting the Commonwealth’s Pa.R.E. 

404(b) motion and in allowing the prior victim “to testify to Appellant’s prior 

abuse against her, as well as evidence of witness intimidation when she was 

the victim.” Appellant’s Brief at 8. To compound matters, Appellant indicates 

Ms. Ezatt was “a victim of a prior incident with Appellant from 2014.” 

Appellant’s Brief at 10. We have found no evidence indicating Appellant 

assaulted Ms. Ezatt in 2014, although we found testimony from Ms. Ezatt 

indicating Appellant assaulted her in 2013. We remind Appellant that it is not 

this Court’s duty to scour the record and develop claims for him. See 

Commonwealth v. Baker, 963 A.2d 495 (Pa.Super. 2008). 
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Q. So he had you deliver a letter that said you wanted to 

drop the charges?

A. Yes.

Q. Is that right?

A. (Witness nods head.)

Q. Did you want to write the letter?

A. No.

Q. Can you tell the jury why you wrote the letter?

A. Because I was scared of him.

Q. And what was the outcome of those Lehigh County cases, 

if you know.

A. He pled guilty.

Q. Okay. And, specifically, the charges, did he plead guilty 

to one that involved—

A. He pled guilty for hitting me and he pled guilty that he 

forced me to write that note.

N.T., 6/6/17, at 40-42. 

Appellant contends the trial court erred in permitting the Commonwealth 

to offer the aforementioned evidence of Appellant’s prior bad acts as it does 

not meet the requirements of a common scheme, plan, or design. See

Appellant’s Brief at 11. However, as the trial court explained, the bad acts 

evidence was admissible under Pa.R.E. 404(b)(2) to tell “the complete story”

4

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4 With regard to permitting evidence of Appellant’s bad acts to “complete the 

story,” the trial court noted that the victim, Ms. Fisher, did not appear for trial. 

Trial Court Opinion, filed 10/4/17, at 6. The trial court reasoned that:

Given the victim’s absence from the trial, the Commonwealth was 

rightly concerned that the jury would speculate as to the reason 

therefor. Accordingly, [the Commonwealth] had a legitimate 

purpose in demonstrating that the victim was not absent from the 
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and demonstrate an “absence of mistake or accident.”5 See Hairston, supra. 

Appellant has presented no argument that the trial court erred in finding the 

evidence admissible under these specific exceptions.

However, this does not end our inquiry. As Appellant aptly argues, 

although evidence of a defendant’s prior bad acts may meet one of the 

permitted uses set forth in Pa.R.E. 404(b)(2), it “is admissible only if the 

probative value of the evidence outweighs its potential for unfair prejudice.” 

Pa.R.E. 404(b)(2).

In balancing whether the probative value of the evidence outweighed its 

potential for unfair prejudice, the trial court noted that Ms. Ezatt’s testimony 

was illustrative of Ms. Fisher’s unavailability as a witness at trial. Trial Court 

Opinion, filed 10/4/17, at 6. The trial court held that “[w]hile Ms. Ezatt’s 

testimony was prejudicial to [Appellant], it was not unduly so. Furthermore, 

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trial because there was no basis for the charges—as argued in 

opening statements by defense counsel—but rather because 

[Appellant] had occasioned her unavailability. In pursuit of this 

legitimate purpose, it was proper for the [trial] [c]ourt to permit 

Ms. Ezatt to testify that [Appellant] had, in the past, attempted to 

manipulate a paramour into not pursuing charges against him for 

domestic violence. 

Id. at 5-6.

5 With regard to the “absence of mistake or accident,” the trial court noted 

Appellant’s defense at trial, as demonstrated through defense counsel’s crossexamination of Ms. Garcia, was that “a seizure disorder was the culprit for Ms. 

Fischer’s [sic] injuries. . . .Ms. Ezatt’s testimony to the effect that [Appellant] 

had a history of abusing his partners belied such a claim.” Trial Court Opinion, 

filed 10/4/17, at 6. 
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there was clearly a great need for the information she provided, and the 

probative value was high.” Id. Thus, the trial court held the probative value 

of the evidence outweighed its potential for unfair prejudice. See id.

We find no abuse of discretion in this regard. See Woodard, supra.

“Evidence will not be prohibited merely because it is harmful to the defendant. 

[E]xclusion is limited to evidence so prejudicial that it would inflame the jury 

to make a decision based on something other than the legal propositions 

relevant to the case.” Commonwealth v. Talbert, 129 A.3d 536, 539 

(Pa.Super. 2015). Further, “[t]he trial court is not required to sanitize the 

trial to eliminate all unpleasant facts from the jury’s consideration[.]” 

Hairston, 624 Pa. 143, 84 A.3d at 666 (quotation marks and quotation 

omitted). Although evidence of Appellant’s prior assault and intimidation of 

his former paramour may have been prejudicial, we conclude the trial court 

did not abuse its discretion in finding it was not unfairly so. See id. 

For all of the foregoing reasons, we affirm.

Affirmed. 

Judge McLaughlin joins the memorandum.

Judge Ott concurs in the result. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/11/18