The PA Superior Court has decided the case of Commonwealth v. Gad, No. 3100 EDA 2017 (June 11, 2018), holding that the trial court did not err in allowing Gad’s former paramour to testify about his prior bad acts of assault and intimidation of her during his trial for assaulting his wife.

Before trial, the Commonwealth sought to introduce, over Gad’s objection, evidence relating to Gad’s prior physical abuse and witness intimidation of his former paramour. The trial court allowed the evidence.

Although Gad’s wife – the victim in this matter – did not appear for the trial, the investigating officer and the physician’s assistant who treated Gad’s wife testified. Additionally, Gad’s former paramour testified that during their relationship, Gad hit her in the face and then intimidated her in an attempt to force her not to cooperate with the police. Further, she testified that although their relationship ended in 2015, Gad resumed contact with her in July of 2016 and, in the fall of 2016, he texted her, indicated he was “in trouble,” and said he “needed her help.” Lastly, she testified that Gad admitted to her that he had hit his wife and he was pressuring her to drop the charges.

Gad testified in his own defense and denied striking his wife or telling her not to appear for court. Nonetheless, he was convicted by the jury on the charges of simple assault and harassment and was sentenced 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. This appeal followed wherein Gad argued that the trial court erred in granting the Commonwealth’s Motion to Introduce Evidence of his Prior Bad Acts because the evidence was overly prejudicial.

The trial court explained that the bad acts evidence was admissible under the PA Rules of Evidence, Rule 404(b)(2), to tell “the complete story” and demonstrate an “absence of mistake or accident.” As to whether the probative value of this evidence was outweighed by its potential for unfair prejudice, the trial court noted that the former paramour’s testimony was illustrative of Gad’s wife’s unavailability as a witness at trial. (The court specifically noted that “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.)

Lastly, the Superior Court noted that “evidence will not be prohibited merely because it is harmful to the defendant” and “although evidence of Gad’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.



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