J-S29022-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

NESBITT FOWLER

Appellant No. 3722 EDA 2015

Appeal from the Judgment of Sentence dated November 9, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0007715-2014

BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY SOLANO, J.: FILED JUNE 22, 2017

Appellant, Nesbitt Fowler, appeals from the judgment of sentence 

imposed after the trial court convicted him of aggravated assault, simple 

assault and recklessly endangering another person.1 We affirm.

Appellant’s convictions arose from an incident involving his girlfriend, 

Keshiva Poindexter, on June 7, 2014. Prior to trial, Appellant filed a motion 

in limine in which he sought the court’s permission to question Ms. 

Poindexter about a video Ms. Poindexter allegedly recorded of Appellant and 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. §§ 2702(a), 2701(a), and 2705.
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posted on the Internet.2 The trial court, in an order by the Honorable 

Carolyn H. Nichols, granted Appellant’s motion in limine on July 16, 2015. 

On July 27, 2015, the Commonwealth filed a motion to admit prior 

“evidence that [Appellant] had attacked the victim on six prior occasions to 

show, inter alia, intent, and absence of mistake, or to rebut anticipated 

defense.” Commonwealth Brief at 3; see also Commonwealth Motion to 

Admit Other Acts Evidence, 7/27/15. The motion was heard prior to trial on 

September 10, 2015, by the Honorable Steven F. Geroff, sitting as the pretrial motions judge.3

 At the hearing, the prosecutor conceded:

The main reason, your honor, that the Commonwealth 

seeks to admit [evidence of Appellant’s prior bad acts] is that 

there was a motion in limine. . . . [T]here is a motion in limine 

where Judge Nichols granted [Appellant’s] motion to allow the 

defense to question the complaining witness on a video that was 

posted of [Appellant] on YouTube. Essentially in a dance where 

he proceeded to take off his clothes. 

And based on that ruling, Judge Nichols ruled that it was 

allowed to establish motive and bias on the part of the 

complainant. So in response, I filed the other acts motion to 

allow these alleged other acts to come into evidence to refute 

that bias or motive.

____________________________________________

2 Appellant’s motion in limine appears to have been verbal. Although there 

is no physical motion in the record, its existence is not disputed and is 

verified by the trial court’s two orders, one on June 25, 2015 stating that 

“Defense Motion in Limine is Held Under Advisement” and a second on July 

16, 2015 stating “Defense Motion in Limine is Granted. Defense may ask 

questions to witness about video. Trial date to remain 9/10/15.”

3

Judge Geroff heard the Commonwealth’s pre-trial motion because 

Appellant had elected to proceed at a bench trial before Judge Nichols.
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N.T., 9/10/15, at 3-4. Counsel for Appellant responded that “there’s 

no exception that says other acts can come in to bolster the credibility 

of the witness.” Id. at 8. Appellant’s counsel then asked whether 

“Your Honor is following my logic?” to which the court responded “I 

do.” Id. at 10. However, the court continued, “Let’s assume that 

video never happened,” and it then reviewed the prior acts set forth in 

the Commonwealth’s motion. Id. 

At the end of the hearing, Judge Geroff permitted the 

Commonwealth to present evidence of two of the prior acts: (1) an 

incident in the summer of 2013 when Appellant allegedly strangled Ms. 

Poindexter until she lost consciousness, and (2) an incident the 

following spring when Appellant allegedly punched Ms. Poindexter on 

the forehead. N.T., 9/10/15, at 14-15; see also Trial Court Opinion, 

6/30/16, at 3-4. The court stated:

Certainly anything [Ms. Poindexter] testifies to is subject 

to great question as to her credibility. But I’m ready to rule. As 

to the December 2012, January 2-13, I will not permit that. The 

summer of 2013 . . . I would permit her to testify to being 

strangled by [Appellant] and losing consciousness. . . . I can 

assure you, you can use your cross-examination to show this 

lady is making all of this up. . . . So I won’t allow December 

2013. Clearly, we’re not allowing February 2014. And I will 

allow the allegation that during April and May of 2014, 

[Appellant] allegedly punched the complainant on the forehead. 

I’ll permit that.

 

So now you got just two acts, two alleged acts.

N.T., 9/10/15, at 13-15.
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The case proceeded to trial. Judge Nichols, sitting as the trial court, 

summarized the trial court’s factual findings as follows:

On June 7, 2014, the complainant, Keshiva Poindexter, 

contacted her boyfriend, [Appellant], through text message 

regarding the return of her cell phone. At some point that 

evening, Ms. Poindexter drove to [Appellant’s] house at 1638 

Frazier St. in Philadelphia. She entered the residence through 

the open front door and found [Appellant’s] cousin laying on a 

couch. She asked the cousin where [Appellant] was and he 

replied he didn’t know. Ms. Poindexter then proceeded upstairs 

where she encountered another female. Again she asked where 

[Appellant] was and if she had seen her cell phone. The cousin 

then informed Ms. Poindexter that [Appellant] would be 

returning shortly. Six minutes after she arrived, [Appellant] 

returned to the house. A verbal argument ensued between Ms. 

Poindexter and [Appellant]. [Appellant] then grabbed Ms. 

Poindexter by the hand and punched her with a closed fist 

several times in the face, specifically her eyes. Ms. Poindexter 

then blacked out. She was awoken by [Appellant’s] father 

slapping her. She then ran outside, where she called her friend 

for help and then passed out again. At some point police were 

called and she was taken to the University of Pennsylvania 

Hospital. The damage to Ms. Poindexter’s eyes [was] extensive 

and required several surgeries with several more in the future. 

Additionally, there was permanent damage to her optical nerves.

Trial Court Opinion, 6/30/16, at 2 (citations to notes of testimony omitted).

The trial court rendered its guilty verdicts on September 10, 2015 and 

deferred sentencing for the preparation of a pre-sentence investigation 

report. On November 9, 2015, the trial court sentenced Appellant to 41⁄2 to 

10 years’ incarceration. Appellant then filed this timely appeal, in which he 

presents a single issue for our review:

Did not the lower court err in allowing the Commonwealth 

to present evidence of other acts by [Appellant]?

Appellant’s Brief at 3.
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Appellant states that the Commonwealth sought to introduce evidence 

of his “uncharged alleged bad acts” against Ms. Poindexter “to bolster [Ms. 

Poindexter]’s credibility in the face of the defense evidence of her motivation 

to lie.” Appellant’s Brief at 9. The essence of Appellant’s claim is that the 

evidence was improperly admitted because it was “clearly offered for the 

purpose of trying to paint [Appellant] as having bad character and a 

propensity for violence [and n]one of the allowable justifications for the 

introduction of other bad acts evidence apply here.” Id. at 13. The 

Commonwealth counters that the evidence of the two prior acts was properly 

admitted because “case law permits the admission of evidence of previous 

assault of the same victim to prove ill-will, malice, and intent, among other 

purposes.” Commonwealth Brief at 4.

We review challenges to the admission of “other acts” evidence for an 

abuse of discretion. Commonwealth v. Patterson, 91 A.3d 55, 68 (Pa. 

2014) (“The admission of evidence of prior bad acts is solely within the 

discretion of the trial court, and the court’s decision will not be disturbed 

absent an abuse of discretion”), cert. denied, 135 S.Ct. 1400 (2015). The 

Pennsylvania Supreme Court has explained:

An abuse of discretion may not be found merely because an 

appellate court might have reached a different conclusion, but 

requires a result of manifest unreasonableness, or partiality, 

prejudice, bias, or ill-will, or such lack of support so as to be 

clearly erroneous. Typically, all relevant evidence, i.e., evidence 

which tends to make the existence or non-existence of a 

material fact more or less probable, is admissible, subject to the 
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prejudice/probative value weighing which attends all decisions 

upon admissibility. See Pa.R.E. 401; Pa.R.E. 402.

Commonwealth v. Dillon, 925 A.2d 131, 136 (Pa. 2007) (internal 

quotations and some citations omitted).

Rule 404(b) of the Rules of Evidence provides:

(b) Crimes, Wrongs or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is 

not admissible to prove a person’s character in order to 

show that on a particular occasion the person acted in 

accordance with the character.

(2) Permitted Uses. This evidence may be admissible for 

another purpose, such as proving motive, opportunity, 

intent, preparation, plan, knowledge, identity, absence of 

mistake, or lack of accident. In a criminal case this 

evidence is admissible only if the probative value of the 

evidence outweighs its potential for unfair prejudice.

Under this rule, evidence of other bad acts or crimes that are not currently 

being prosecuted against the defendant are not admissible against the 

defendant to show his bad character or propensity to commit criminal acts. 

Commonwealth v. Flamer, 53 A.3d 82, 87 (Pa. Super. 2012). Evidence of 

other bad acts or crimes may be admissible, however, where the evidence is 

used for some other purpose. Id. Such purposes explicitly include “proving 

motive, opportunity, intent, preparation, plan, knowledge, identity, absence 

of mistake, or lack of accident.” Pa.R.E. 404(b)(2); see, e.g., 

Commonwealth v. Johnson, 42 A.3d 1017, 1027 (Pa. 2012) (“Prior acts 

are admissible to show ill will, motive, malice, or the nature of the 

relationship between the defendant and the decedent”). “[A]dmission for 
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these purposes is allowable only whenever the probative value of the 

evidence exceeds its potential for prejudice.” Commonwealth v. Briggs,

12 A.3d 291, 337 (Pa. 2011). “The admission of 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,

982 A.2d 483 n.25 (Pa. 2009) (citation omitted).

The trial court provided the following reasoning to support admission 

of the contested evidence:

The prior bad acts of [a d]efendant are admissible to show 

intent when intent or knowledge is an essential element of the 

crime charged. Commonwealth v. Sparks, 342 Pa. Super. 

202, 206-207, 492 A.2d 720, 723 (1985) (citation omitted). 

Here [Appellant] is charged with Aggravated Assault, which 

requires a mens rea of intentionally, knowingly or recklessly 

under circumstances manifesting extreme indifference to the 

value of human life. The prior behavior is similar to the current 

charge and shows the intent of [Appellant] to attempt to cause 

serious bodily injury to Ms. Poindexter. It also shows that there 

was a hostile relationship between [Appellant] and Ms. 

Poindexter and that [Appellant] intentionally wanted to cause 

serious bodily injury to Ms. Poindexter.

The prior bad acts of [Appellant] were also properly 

admitted to show that there was an absence of mistake 

regarding the assault of Ms. Poindexter. In the case, 

Commonwealth v. Ulatoski, 472 Pa. 53, 371 A.2d 186 (1977), 

the defendant was charged with murder for shooting his wife. At 

trial he claimed that the shooting was an accident. The 

Pennsylvania Supreme Court affirmed the trial court’s ruling that 

evidence showing prior incidents of physical abuse by the 

defendant towards his wife were relevant and admissible to 

prove that the shooting was not an accident. Similar to the 

present case, [Appellant] might have claimed at trial that the 

injuries were accidental in nature. However the prior bad acts 
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evidence was relevant to show that in the past [Appellant] had 

assaulted Ms. Poindexter and was admissible to rebut such a 

claim of mistake.

The two incidents that were admitted were also very close 

in time to the current incident and were not too remote to be 

admissible. Additionally, their prejudicial effect to [Appellant] 

was far outweighed by their probative value in proving the 

essential elements of the current charge. Therefore the 

admission of the two prior incidents of assault by [Appellant] 

were properly admitted to show intent and absence of mistake. 

Trial Court Opinion, 6/30/16, at 4-5. Upon review, we discern no abuse of 

discretion by the trial court. As noted by the Commonwealth, case law 

supports admission of the evidence at issue here. See Commonwealth Brief 

at 6, citing Commonwealth v. Drumheller, 808 A.2d 893, 905 (Pa. 2002) 

(evidence of prior abuse of victim admissible to prove appellant’s motive, 

malice, intent, and ill-will toward the victim); Commonwealth v. Ulatoski, 

371 A.2d 186, 190 (Pa. 1977) (same) (collecting cases); Commonwealth 

v. Powell, 956 A.2d 406, 419 (Pa. 2008) (evidence of defendant’s anger, 

impatience, and dislike of victim admissible to establish motive, intent, and 

malice in harming that victim).

The evidence of Appellant’s two prior acts, although not charged 

crimes, was admissible to relate the “complete story” and “natural 

development” of the relationship between Appellant and Ms. Poindexter. In 

Commonwealth v. Lark, 543 A.2d 491 (Pa. 1988), the Supreme Court 

explained: 

Evidence of distinct crimes are not admissible against a 

defendant being prosecuted for another crime solely to show his 
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bad character and his propensity for committing criminal acts. 

However, evidence of other crimes and/or violent acts may be 

admissible in special circumstances where the evidence is 

relevant for some other legitimate purpose and not merely to 

prejudice the defendant by showing him to be a person of bad 

character. . . . [One] “special circumstance” where evidence of 

other crimes may be relevant and admissible is where such 

evidence was part of the chain or sequence of events which 

became part of the history of the case and formed part of the 

natural development of the facts. This special circumstance, 

sometimes referred to as the “res gestae” exception to the 

general proscription against evidence of other crimes, is also 

known as the “complete story” rationale, i.e., evidence of other 

criminal acts is admissible “to complete the story of the crime on 

trial by proving its immediate context of happenings near in time 

and place.” McCormick, Evidence, § 190 (1972 2d ed.); see also

Commonwealth v. Coyle, 415 Pa. 379, 389–91, 203 A.2d 782, 

787 (1964) (evidence of other crimes admissible as these crimes 

were interwoven with crimes for which defendant was being 

prosecuted).

543 A.2d at 497 (some citations omitted). The rationale of Lark fully 

supports admissibility of the Commonwealth’s evidence here, as evidence of

Appellant’s past conduct toward Appellant, if believed by the fact-finder, 

would support the view that the criminal activity at issue was merely a part 

of his ongoing pattern of conduct toward Ms. Poindexter — an earlier chapter 

of the “complete story.”

Finally, even if we were to accept Appellant’s argument that the 

admission of the prior acts was improper, such admission would constitute 

harmless error. Chief Justice Saylor recently explained:

It is well-established that an erroneous evidentiary ruling by a 

trial court does not require us to grant relief where the error was 

harmless. Commonwealth v. Young, 561 Pa. 34, 748 A.2d 

166, 193 (1999). Specifically, we have held that harmless error 

exists where: (1) the error did not prejudice the defendant or 
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the prejudice was de minimis; (2) the erroneously admitted 

evidence was merely cumulative of other untainted evidence; or 

(3) the properly admitted and uncontradicted evidence of guilt 

was so overwhelming that the prejudicial effect of the error by 

comparison could not have contributed to the verdict. Id. We 

have explained that the doctrine of harmless error is a 

“technique of appellate review designed to advance judicial 

economy by obviating the necessity for a retrial where the 

appellate court is convinced that a trial error was harmless 

beyond a reasonable doubt. Its purpose is premised on the wellsettled proposition that a defendant is entitled to a fair trial but 

not a perfect one.” Commonwealth v. Allshouse, 614 Pa. 

229, 36 A.3d 163, 182 (2012) (citation and internal quotations 

omitted).

Commonwealth v. Hicks, 156 A.3d 1114, 1139–40 (Pa. 2017) (Saylor, J., 

concurring); see also Commonwealth v. Melvin, 103 A.3d 1, 19-20 (Pa. 

Super. 2014). We are confident that any error in admitting the evidence at 

issue here would have been harmless.

Ms. Poindexter was the only witness to testify at trial. She testified at 

length regarding the incident that occurred on June 7, 2014, and the 

physical evidence of her injuries. For instance, she stated: 

As we were arguing, [Appellant] attacked me with punching me 

in the face. I can’t recall how many times. I just know I blacked 

out. And when I woke up my eye was shut and I thought he 

was pouring water on me, but there was blood gushing from all 

over my face.

N.T., 9/10/15, at 14. Ms. Poindexter stated that she spoke with police on 

the scene after she called 911. N.T., 9/10/15, at 112-113. She told police 

that she had been attacked and pointed to the house where it happened. 

Id. at 113. She stated that the police did not arrest Appellant at that time 

because “he had walked off by then.” Id.
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Ms. Poindexter testified about her broken orbital bone, permanently 

damaged eye nerves, and three surgeries she had prior to trial, with more to 

follow. See, e.g., N.T., 9/10/15, at 20-23. Ms. Poindexter gave the 

following description of her injuries:

WITNESS: As you can see, [my eye is] damaged. It 

was worse than this. This is from the 

third surgery. He moved it and moved it 

a little bit, but when it first happened, 

my eye was all the way. You didn’t even 

see the black part. I thought they –

that’s why they were saying I was blind. 

I thought they weren’t going to be able 

to fix it at all.

COMMONWEALTH: You can put your hair back if you’d like.

WITNESS: This is how I wear my hair now to cover 

my appearance.

N.T., 9/10/15, at 23-24. Without objection, the Commonwealth introduced 

exhibits documenting Ms. Poindexter’s injuries, including a police report and 

photographs. 

At closing, Appellant sought to discredit Ms. Poindexter as being an 

inconsistent and untruthful witness who “went [to Appellant’s house] to start 

trouble.” N.T., 9/10/15, at 132. Specifically, Appellant’s counsel stated that 

“it was to cause some sort of trouble. And I submit to Your Honor that when 

she found [Appellant] was with another woman, something happened. 

Something happened and she ended up being punched two or three times in 

the face.” Id. Then, in arguing that Appellant lacked the requisite intent to 

cause Ms. Poindexter serious bodily injury, Appellant’s counsel added: 
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“[t]wo to three punches during some sort of confrontational issue, during 

some sort of confrontational problem while somebody is at your house 

uninvited is not proof that [Appellant] had specific intent to cause serious 

bodily injury, or, even if serious bodily injury was caused, that he did so 

intentionally, knowingly, or recklessly under circumstances manifesting 

extreme indifference to the value of human life.” Id. at 134. 

In light of the evidence and the defense presented by Appellant’s 

counsel at closing, we conclude that any error in the admission at trial of 

prior acts involving Appellant and Ms. Poindexter would have been harmless. 

Accordingly, because Appellant’s evidentiary claim is without merit, we 

affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/22/2017