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Commonwealth v. Boczkowski3/23/2004
ruary 1, 1999, as well. Once again, appellant inexplicably does not acknowledge the existence of this waiver, much less does he explain why it does not result in excludable time under Rule 1100(c)(2). Thus, even if it is assumed that the 148-day period during which appellant remained in North Carolina is not excludable in calculating the Rule 1100 run date, it is apparent that appellant was brought to trial within 357 non-excludable days (427 minus 70), which is well within the 365-day period mandated by Rule 1100. Thus, appellant's Rule 1100 claim fails.
Appellant's next four claims of error involve challenges to the Superior Court's decision concerning the Commonwealth's pre-trial appeal. That appeal was from the trial court's October 4, 1995 order granting in part appellant's motion in limine and barring the Commonwealth from introducing any evidence concerning appellant's marriage to Elaine Boczkowski, her death in 1990, and appellant's arrest in 1994 for her death, except to the extent the Commonwealth sought to introduce the evidence "to rebut [appellant's] claim or any other evidence that the death of Mary Ann Boczkowski was the result of accident." The Commonwealth argued on appeal that the evidence concerning Elaine Boczkowski was admissible in its case-in-chief to prove that Maryann's death was not an accident, but was, in fact, a murder.
A divided panel of the Superior Court issued a memorandum opinion affirming in part and reversing in part. The panel majority noted the settled rule that relevant evidence of prior bad acts is inadmissible to show bad character or criminal propensity, but is admissible if offered for another relevant purpose and if the probative need for the evidence outweighs its potential prejudicial effect. See, e.g., Commonwealth v. Richter, 711 A.2d 464, 466 (Pa. 1998). Citing the decision in Commonwealth v. Donahue, 549 A.2d 121, 127 (Pa. 1988) (Opinion Announcing Judgment of Court), the majority agreed with the trial court that this evidence fell within the well-recognized "absence of accident" exception to the general proscription against the introduction of prior bad acts evidence. The majority found that "the manner and circumstances surrounding the two deaths were remarkably similar," therefore the evidence was "highly probative" of whether appellant killed Maryann, and the probative value of the evidence outweighed its potential for unfair prejudice. Accordingly, the majority concluded that the trial court had erred to the extent it barred the evidence from the Commonwealth's case-in-chief: "the Commonwealth should not have to wait to rebut a possible claim that Maryann's death was accidental." Mem. op. at 4-7 (emphasis original). Judge Johnson dissented, opining that the prejudicial impact of the evidence outweighed its probative value, unless appellant first raised the issue of accident.
Appellant filed a petition for allowance of appeal to this Court claiming that the Superior Court erred in: (1) ruling on the Commonwealth's interlocutory appeal without first determining the validity of the Commonwealth's certification that the trial court motion in limine terminated or substantially handicapped the prosecution; and (2) reversing the trial court's determination that evidence regarding Elaine's death was admissible only in rebuttal. This Court denied allocatur on February 25, 1998 and denied reconsideration on May 27, 1998.
Appellant's first assignment of error concerning the pre-trial appeal echoes his complaint on allocatur that the Superior Court erred in failing to determine the validity of the Commonwealth's certification that the grant of appellant's motion in limine terminated or substantially handicapped the prosecution. A
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