Commonwealth v. Tyson

J-E04003-14

2015 PA Super 138

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant

v.

JERMEEL OMAR TYSON

Appellee No. 1292 MDA 2013

Appeal from the Order June 18, 2013
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0005578-2012

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E.,
PANELLA, J., DONOHUE, J., SHOGAN, J., MUNDY, J., OLSON, J.,
and OTT, J.

OPINION BY GANTMAN, P.J.: FILED JUNE 10, 2015

Appellant, the Commonwealth of Pennsylvania, appeals from the order

entered in the Berks County Court of Common Pleas, which denied the

Commonwealth’s motion in limine to introduce at trial Appellee Jermeel

Omar Tyson’s prior conviction and granted Appellee’s corresponding motion

in limine to exclude this evidence. We reverse and remand for further

proceedings.

The relevant facts and procedural history of this case are as follows.

On July 31, 2010, G.B. left work because she felt ill after donating plasma.

G.B. asked Appellee, whom she knew casually, to bring her some food.

Appellee arrived at G.B.’s apartment and stayed as she fell asleep. During

the early morning hours of August 1, 2010, G.B. claims she awoke to find

Appellee having vaginal intercourse with her. Appellee told G.B. she had
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taken her pants off for him. G.B. claims she told Appellee to stop, and he

complied. After falling back asleep, G.B. woke again later that night and

went into her kitchen, where she allegedly found Appellee naked. G.B.

claims she told Appellee she did not want to have sex with him and returned

to bed. Shortly thereafter, G.B. claims, she woke up; and Appellee was

again having vaginal intercourse with her. G.B. told Appellee to stop and

asked him what he was doing. Appellee told G.B. her eyes were open the

whole time. G.B. told Appellee to leave her apartment. G.B. then went to a

hospital for treatment.

The Commonwealth charged Appellee with rape, sexual assault,

indecent assault, and aggravated indecent assault. On May 31, 2013, the

Commonwealth filed a motion in limine, which sought to introduce evidence

of Appellee’s 2001 conviction for rape in Delaware, pursuant to Pa.R.E.

404(b).1 The Commonwealth’s motion in limine was premised on two

theories: (1) Appellee’s prior rape conviction is admissible to show his rape

and assault of G.B. was part of a common scheme or plan; and (2) the prior

conviction is admissible to show Appellee did not “mistakenly” conclude G.B.

“consented” to sexual intercourse with him. On June 3, 2013, Appellee filed

____________________________________________

1
On July 16, 2000, Appellee was at a party at the home of T.B. Appellee
was a friend of T.B.’s brother. T.B. drank alcohol at the party and went to
sleep in her bedroom at approximately 5:00 a.m. She later awoke to find
Appellee having vaginal intercourse with her. Appellee pled guilty to rape on
June 11, 2001, and spent five years in prison.

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a motion in limine seeking to preclude his prior rape conviction.

Following a hearing, the trial court denied the Commonwealth’s motion

in limine, granted Appellee’s motion in limine, and on June 18, 2013,

declared Appellee’s prior conviction inadmissible. On July 18, 2013, the

Commonwealth filed a timely notice of appeal.2 By memorandum decision

on April 21, 2014, a panel of this Court (with one dissent) affirmed the trial

court’s order of June 18, 2013. On July 3, 2014, this Court granted the

Commonwealth’s application for en banc reargument and withdrew the prior

memorandum decision.

The Commonwealth raises one issue for en banc review:

DID THE [TRIAL] COURT ABUSE ITS DISCRETION IN
DENYING THE COMMONWEALTH’S MOTION IN LIMINE TO
INTRODUCE EVIDENCE OF [APPELLEE’S] PRIOR CRIME
AND GRANTING [APPELLEE’S] MOTION IN LIMINE, WHERE
SAID EVIDENCE IS ADMISSIBLE PURSUANT TO PA.R.E.
404(B)?

(Commonwealth’s Brief at 4).

In its sole issue, the Commonwealth argues the facts of the present

case and the facts of Appellee’s prior rape conviction demonstrate that

Appellee engaged in a pattern of non-consensual sexual intercourse with

acquaintances who were in an unconscious or diminished state. The

Commonwealth contends that in each case, Appellee deliberately took

____________________________________________

2
The Commonwealth certified, pursuant to Pa.R.A.P. 311(d), that the court’s
order would substantially handicap the prosecution.

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advantage of the victim’s diminished state and inability to consent. The

Commonwealth highlights numerous similarities between the two incidents:

(1) the victims were the same race and similar in age; (2) both victims were

casually acquainted with Appellee; (3) Appellee’s initial interaction with each

victim was legitimate, where Appellee was invited into the victim’s home;

(4) Appellee had vaginal intercourse with each victim in her bedroom; (5)

both incidents involved vaginal intercourse with an alleged unconscious

victim who woke up in the middle of the act; and (6) in each case, Appellee

knew the victim was in a compromised state. The Commonwealth asserts

the period between the two incidents is only five years, when we exclude the

time Appellee spent in prison on the prior rape conviction, and the passage

of five years’ time is outweighed by the similarities of the two acts. In light

of these similarities, the Commonwealth claims Appellee’s prior conviction is

admissible under the common plan or scheme exception to Rule 404, which

generally prohibits evidence of prior crimes.

The Commonwealth further argues Appellee’s prior conviction is

admissible under the absence of mistake or accident exception, namely, to

show Appellee made no mistake when he assessed G.B.’s ability to consent

to sexual intercourse. The Commonwealth submits Appellee concedes

identity will be a non-issue at trial, so the key issue for the factfinder is

whether G.B. consented. The Commonwealth insists evidence of Appellee’s

prior conviction is necessary to counter Appellee’s consent defense and show

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that, as in the previous case, Appellee knowingly took advantage of an

unconscious victim. For either the common plan or absence of mistake

exceptions, the Commonwealth asserts evidence of Appellee’s prior

conviction would not be unduly prejudicial. The Commonwealth stresses this

highly probative evidence would aid the jury in its determination of

Appellee’s state of mind when he twice initiated vaginal intercourse with

G.B.; whereas the absence of this evidence would leave the jury to rely

solely on G.B.’s testimony regarding the issue of consent. For all of these

reasons, the Commonwealth concludes the trial court abused its discretion

when it excluded evidence of Appellee’s prior conviction. We agree.

“Admission of evidence is within the sound discretion of the trial court

and will be reversed only upon a showing that the trial court clearly abused

its discretion.” Commonwealth v. Drumheller, 570 Pa. 117, 135, 808

A.2d 893, 904 (2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2284, 156

L.Ed.2d 137 (2003) (quoting Commonwealth v. Stallworth, 566 Pa. 349,

363, 781 A.2d 110, 117 (2001)); Commonwealth v. Collins, 70 A.3d

1254, 1251 (Pa.Super. 2013). “An abuse of discretion is not merely an error

of judgment, but is rather the overriding or misapplication of the law, or the

exercise of judgment that is manifestly unreasonable, or the result of bias,

prejudice, ill-will or partiality, as shown by the evidence of record.”

Commonwealth v. Harris, 884 A.2d 920, 924 (Pa.Super. 2005), appeal

denied, 593 Pa. 726, 928 A.2d 1289 (2007).

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Relevance is the threshold for admissibility of evidence.

Commonwealth v. Cook, 597 Pa. 572, 602, 952 A.2d 594, 612 (2008).

Pennsylvania Rule of Evidence 401 provides as follows:

Rule 401. Test for Relevant Evidence

Evidence is relevant if:

(a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action.

Pa.R.E. 401. “Evidence is relevant if it logically tends to establish a material

fact in the case, tends to make a fact at issue more or less probable or

supports a reasonable inference or presumption regarding a material fact.”

Drumheller, supra at 135, 808 A.2d at 904. “All relevant evidence is

admissible, except as otherwise provided by law. Evidence that is not

relevant is not admissible.” Pa.R.E. 402. “The court may exclude relevant

evidence if its probative value is outweighed by a danger of one or more of

the following: unfair prejudice, confusing the issues, misleading the jury,

undue delay, wasting time, or needlessly presenting cumulative evidence.”

Pa.R.E. 403.

Pennsylvania Rule of Evidence 404(b) provides as follows:

Rule 404. Character Evidence; Crimes or Other Acts

* * *

(b) Crimes, Wrongs or Other Acts.

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

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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.

* * *

Pa.R.E. 404(b)(1)-(2). “[E]vidence of prior crimes is not admissible for the

sole purpose of demonstrating a criminal defendant’s propensity to commit

crimes.” Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, 1283

(Pa.Super. 2004). Nevertheless, “[e]vidence may be admissible in certain

circumstances where it is relevant for some other legitimate purpose and not

utilized solely to blacken the defendant’s character.” Id. Specifically, other

crimes evidence is admissible if offered for a non-propensity purpose, such

as proof of an actor’s knowledge, plan, motive, identity, or absence of

mistake or accident. Commonwealth v. Chmiel, 585 Pa. 547, 889 A.2d

501 (2005). When offered for a legitimate purpose, evidence of prior crimes

is admissible if its probative value outweighs its potential for unfair

prejudice. Commonwealth v. Hairston, 624 Pa. 143, 84 A.3d 657 (2014),

cert. denied, ___ U.S. ___, 135 S.Ct. 164, 190 L.Ed.2d 118 (2014).

When ruling upon the admissibility of evidence under the
common plan exception, the trial court must first examine
the details and surrounding circumstances of each criminal
incident to assure that the evidence reveals criminal
conduct which is distinctive and so nearly identical as to

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become the signature of the same perpetrator. Relevant
to such a finding will be the habits or patterns of action or
conduct undertaken by the perpetrator to commit crime,
as well as the time, place, and types of victims typically
chosen by the perpetrator. Given this initial
determination, the court is bound to engage in a careful
balancing test to assure that the common plan evidence is
not too remote in time to be probative. If the evidence
reveals that the details of each criminal incident are nearly
identical, the fact that the incidents are separated by a
lapse of time will not likely prevent the offer of the
evidence unless the time lapse is excessive. Finally, the
trial court must assure that the probative value of the
evidence is not outweighed by its potential prejudicial
impact upon the trier of fact. To do so, the court must
balance the potential prejudicial impact of the evidence
with such factors as the degree of similarity established
between the incidents of criminal conduct, the
Commonwealth’s need to present evidence under the
common plan exception, and the ability of the trial court to
caution the jury concerning the proper use of such
evidence by them in their deliberations.

Commonwealth v. G.D.M., Sr., 926 A.2d 984, 987 (Pa.Super. 2007),

appeal denied, 596 Pa. 715, 944 A.2d 756 (2008) (quoting Commonwealth

v. Smith, 635 A.2d 1086, 1089 (Pa.Super. 1993)).

Although “remoteness in time is a factor to be considered in

determining the probative value of other crimes evidence under the theory

of common scheme, plan or design, the importance of the time period is

inversely proportional to the similarity of the crimes in question.”

Commonwealth v. Aikens, 990 A.2d 1181, 1185 (Pa.Super. 2010), appeal

denied, 607 Pa. 694, 4 A.3d 157 (2010) (holding evidence of defendant’s

prior sexual assault was admissible under common scheme exception

despite nearly ten-year gap between periods of abuse, where victims were of

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similar age and both were daughters of defendant; defendant initiated

contact with each victim during overnight visit in his apartment; defendant

began sexual abuse by showing victims pornographic movies; and assaults

occurred in bed at night). See also Commonwealth v. Luktisch, 680

A.2d 877 (Pa.Super. 1996) (holding common scheme exception justified

admission of testimony regarding defendant’s previous sexual assaults

despite six-year lapse between periods of abuse, where three victims were

nearly same age, victims were either daughter or step-daughter of

defendant and lived with him when acts occurred; and pattern of

molestation—from improper touching to oral sex to sexual intercourse—was

highly similar with respect to two victims).

Evidence of a prior crime may also be admitted to show a defendant’s

actions were not the result of a mistake or accident, “where the manner and

circumstances of two crimes are remarkably similar.” Commonwealth v.

Kinard, 95 A.3d 279, 294-95 (Pa.Super. 2014). See Commonwealth v.

Sherwood, 603 Pa. 92, 982 A.2d 483 (2009) (holding evidence of

defendant’s prior physical assaults of child was admissible to show absence

of mistake or accident in prosecution for intentional beating death of child);

Commonwealth v. Boczkowski, 577 Pa. 421, 846 A.2d 75 (2004) (holding

evidence of defendant’s murder of former wife was admissible to show

absence of accident in prosecution for murder of defendant’s second wife,

where both victims were found dead in bathtub or hot tub in highly similar

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circumstances).

Evidence of relevant prior crimes is admissible “if the probative value

of the evidence outweighs its potential for unfair prejudice.” Kinard, supra

at 284. “‘Unfair prejudice’ means a tendency to suggest decision on an

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

weighing the evidence impartially.” Commonwealth v. Dillon, 592 Pa.

351, 366, 925 A.2d 131, 141 (2007) (quoting Pa.R.E. 403 comment).

Evidence will not be prohibited merely because it is
harmful to the defendant. This Court has stated that it is
not required to sanitize the trial to eliminate all unpleasant
facts from the jury’s consideration where those facts are
relevant to the issues at hand and form part of the history
and natural development of the events and offenses for
which the defendant is charged. Moreover, we have
upheld the admission of other crimes evidence, when
relevant, even where the details of the other crime were
extremely grotesque and highly prejudicial.

Id. at 367, 925 A.2d at 141. “Additionally, when examining the potential for

undue prejudice, a cautionary jury instruction may ameliorate the prejudicial

effect of the proffered evidence. … Jurors are presumed to follow the trial

court’s instructions.” Hairston, supra at ___, 84 A.3d at 666 (holding

extraneous offense of arson was admissible under Rule 404(b) as res gestae

evidence in prosecution for murder; trial court’s instruction on how arson

evidence should be considered minimized likelihood that arson evidence

would inflame jury or cause it to convict defendant on improper basis).

Instantly, the record reveals the following factual similarities between

the present case and Appellee’s prior rape conviction. In each case,

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Appellee was acquainted with the victim—a black female in her twenties—

and he was an invited guest in the victim’s home. Appellee was aware that

each victim was in a weakened or compromised state. Each victim

ultimately lost consciousness. In each case, the victim awoke in her

bedroom in the early morning hours to find Appellee having vaginal

intercourse with her. The evidence of Appellee’s prior rape passes the basic

relevance threshold, as it tends to increase the probability that Appellee

knowingly had non-consensual sex with G.B. in the present case. See

Drumheller, supra. The relevant details and surrounding circumstances of

each incident further reveal criminal conduct that is sufficiently distinctive to

establish Appellee engaged in a common plan or scheme. See G.D.M., Sr.,

supra. The factual overlap between the two incidents goes beyond the

commission of crimes or conduct “of the same general class.” The evidence

does not merely show Appellee sexually assaulted two different women or

that Appellee’s actions are generically common to many sexual assault

cases. To the contrary, the incidents reflect a clear pattern where Appellee

was legitimately in each victim’s home; Appellee was cognizant of each

victim’s compromised state; and Appellee had vaginal intercourse with each

victim in her bedroom in the middle of the night while the victim was

unconscious.3

____________________________________________

3
To the extent differences exists between the two incidents, these
(Footnote Continued Next Page)

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G.B.’s claim, that she again fell asleep and again awoke to find

Appellee having non-consensual sex with her a second time, only reinforces

the conclusion that Appellee engaged in a common scheme of non-

consensual intercourse with unconscious victims. The evidence of a second

instance of non-consensual sex between Appellee and G.B. tends to show

Appellee saw and seized yet another opportunity to have non-consensual

vaginal intercourse with a female acquaintance whose unconscious state

rendered her unable to consent or to resist verbally or physically.

Additionally, Appellee’s dispute that G.B. was asleep, when Appellee initiated

sexual intercourse with her, is an issue for the factfinder to determine at

trial. The purpose of introducing Appellee’s prior conviction is to aid the jury

in that determination and to counter Appellee’s anticipated defense of

consent. Appellee should not be able to create a “difference” between the

two incidents simply by disputing the Commonwealth’s proffered facts. We

conclude the circumstances of each incident are sufficiently similar to satisfy
_______________________
(Footnote Continued)

differences concern details which are not essential to the alleged common
scheme of Appellee. For example, Appellee was in T.B.’s home for a party
because he was friends with T.B.’s brother, whereas G.B. invited Appellee
into her home because she felt weak after donating plasma. The common
scheme, however, does not require the sexual assault of women who
became tired or weak specifically after donating plasma. The salient facts of
each case are that Appellee was allowed into the home of an acquaintance,
and Appellee knew each victim was in a compromised state. After each
victim lost consciousness in the early morning hours, Appellee had vaginal
intercourse with each victim in essentially the same manner. The common
scheme exception does not require that the two scenarios be identical in
every respect.

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the common plan or scheme exception to Rule 404.

We further conclude the evidence of Appellee’s prior rape conviction is

not too remote in time to negate its probative value. The Commonwealth is

correct to state that Appellee’s time spent in prison must be excluded in the

calculation of how much time has elapsed since the prior crime. See

Commonwealth v. Rush, 538 Pa. 104, 646 A.2d 557 (1994) (excluding

defendant’s period of incarceration from relevant time period for remoteness

analysis, where eight years separated commission of crimes in question);

Commonwealth v. Brien, 836 A.2d 966 (Pa.Super. 2003), appeal denied,

577 Pa. 695, 836 A.2d 966 (2004) (holding defendant’s prior ten-year old

convictions were not too remote in time, and defendant was paroled five

years before the current offense). Appellee committed the prior offense ten

years before the current incident, but Appellee was incarcerated for five of

those years for the prior offense. Therefore, the relevant look-back period is

five years for purposes of the remoteness analysis. See id. This Court has

held evidence admissible under the common scheme exception in the

context of even longer time lapses. See Aikens, supra (holding ten-year

lapse was not excessive); Luktisch, supra (holding six-year lapse was not

excessive). Additionally, the similarities of the two incidents render the five-

year time gap even less important. See Aikens, supra. The record does

not support a finding of an excessive lapse of time between the incidents,

which is, in any case, only one factor in the common scheme analysis, but

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not the dispositive factor.

Additionally, the probative value of Appellee’s prior conviction

outweighs its potential for unfair prejudice. The prior conviction should not

be shielded from the factfinder merely because it is harmful to Appellee; the

question is whether evidence of Appellee’s prior conviction would be unduly

prejudicial. See Dillon, supra. The substantial similarity between the two

incidents gives the evidence of Appellee’s previous crime considerable

probative value. In light of the important similarities, the nature of

Appellee’s prior crime alone does not render it unduly prejudicial. See

Commonwealth v. Frank, 577 A.2d 609 (Pa.Super. 1990) (holding

admission of evidence of appellant’s prior sexual assaults of children under

common plan exception was not unduly prejudicial where assaults possessed

high degree of similarity and court issued cautionary instructions).

Moreover, to alleviate the potential for unfair prejudice, the court can issue a

cautionary instruction to the jury, to advise the jury of the limited purpose of

the evidence and to clarify that the jury cannot treat the prior crime as proof

of Appellee’s bad character or criminal tendencies. See id.; Hairston,

supra. Jurors are presumed to follow the trial court’s instructions. See id.

Importantly, one factor in the “undue prejudice” analysis—the

Commonwealth’s need to present evidence under the common plan

exception—weighs heavily in favor of the Commonwealth. Identity is not an

issue in this case, as Appellee acknowledges he had sexual intercourse with

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G.B. on the day in question. The only issue is consent. If evidence of

Appellee’s prior conviction is excluded, the Commonwealth must rely solely

on the uncorroborated testimony of G.B. to counter Appellee’s defense of

consent to vaginal intercourse. Thus, the Commonwealth has a significant

need for the prior crime evidence to prove Appellee had non-consensual sex

with G.B. See G.D.M., Sr., supra. See also Commonwealth v. Gordon,

543 Pa. 513, 673 A.2d 866 (1996) (holding evidence of appellant’s similar

prior sexual assaults was not unduly prejudicial where Commonwealth was

required to prove non-consensual touching occurred; evidence was

necessary for prosecution of case, where uncorroborated testimony of victim

might lead jury to determine there was reasonable doubt as to whether

appellant committed crime). Given the substantial similarity between the

current incident and Appellee’s prior crime, and the importance of the

common scheme evidence to the Commonwealth’s case, we conclude the

trial court abused its discretion when it found Appellee’s prior conviction was

inadmissible under the common scheme exception to Rule 404.

Likewise, the trial court should have declared the evidence of

Appellee’s prior rape conviction admissible under the absence of mistake or

accident exception to Rule 404.4 Appellee disputes G.B.’s account that she

____________________________________________

4
In his motion in limine, Appellee completely misconstrued and failed to
respond substantively to the Commonwealth’s argument regarding the
exception to Rule 404 for absence of mistake or accident. Appellee stated:
(Footnote Continued Next Page)

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was asleep when Appellee initiated sexual intercourse with her—Appellee

maintains he thought G.B. consented to the act. Given the relevant

similarities between the two incidents, evidence of Appellee’s prior rape

would tend to prove he did not “mistakenly believe” G.B. was awake or gave

her consent. Appellee was invited into G.B.’s home for another reason,

Appellee knew G.B. was in a compromised state, and G.B. awoke to find

Appellee having vaginal intercourse with her. Appellee’s prior conviction

would likewise show he had been invited into the home of an acquaintance,

knew the victim was in a compromised state, and had non-consensual sex

with the victim while the victim was unconscious. The prior conviction would

tend to prove Appellee was previously in a very similar situation and suffered

legal consequences from his decision to have what proved to be non-

consensual vaginal intercourse with an unconscious victim. Thus, the

evidence would tend to show Appellee recognized or should have recognized

that, as with T.B., G.B.’s physical condition rendered her unable to consent.
_______________________
(Footnote Continued)

“There is no question in this case as to the identity of [Appellee] and the
only reason to introduce the evidence of the prior conviction would be to
prove a common plan, despite the limited similarities between the two
instances.” (Appellee’s Motion in Limine, filed 6/3/13, at 3; R.R. at 27a).
The Commonwealth, however, did not try to introduce evidence of Appellee’s
prior conviction, under the absence of mistake or accident exception, to
prove identity but to show Appellee made no mistake or accident when he
evaluated G.B.’s purported “consent.” Appellee also failed to address this
argument at the hearing on the motions in limine. Therefore, Appellee
arguably waived any objection to admission of his prior conviction under that
exception to Rule 404. See Pa.R.A.P. 302(a) (stating issues not raised in
trial court are waived and cannot be raised for first time on appeal).

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The jury must have a chance to decide if Appellee, in light of his past legal

experience and conviction for a substantially similar criminal episode, could

have reasonably concluded G.B.’s consent was possible under comparable

circumstances.

As with the common scheme exception, certain differences between

the two incidents—such as the exact reason the victim was in a

compromised state—are not essential to the question of whether Appellee

mistakenly believed G.B. consented to sexual intercourse. The evidence of

Appellee’s prior crime is highly probative of the fact that Appellee could not

have reasonably believed G.B. was conscious enough to give her consent.

Rather, the evidence of the prior conviction tends to prove Appellee

intentionally exploited another opportunity to take advantage of a woman

sexually, when he knew the woman was in a diminished state. The prior

crime at issue fits within the absence of mistake or accident exception to

Rule 404. See Kinard, supra. Given the established similarity between the

incidents, we conclude Appellee’s prior conviction is highly probative on the

issue of consent, but not so remote in time or unduly prejudicial as to bar its

admission under the absence of mistake or accident exception to Rule 404.

See Dillon, supra; Aikens, supra. Our previous analysis of “undue

prejudice” and remoteness with respect to the common plan or scheme

exception is equally applicable in the context of the absence of mistake or

accident exception.

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Based on the foregoing, we hold evidence of Appellee’s prior conviction

is admissible under both the common plan or scheme and the absence of

mistake or accident exceptions to Rule 404. Thus, we reverse the trial

court’s order excluding this evidence.

Order reversed; case remanded for further proceedings. Jurisdiction is

relinquished.

Ford Elliott, P.J.E., Panella, Shogan, Mundy and Olson, JJ. join the

opinion.

Donohue, J. files a dissenting opinion in which Bender, P.J.E. and Ott,

J. join.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/10/2015

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