Com. v. Corliss, J.

J-S10040-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant

v.

JUSTIN CORLISS

Appellee No. 2091 EDA 2014

Appeal from the Suppression Order June 17, 2014
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0001749-2013

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant

v.

JUSTIN CORLISS

Appellee No. 2105 EDA 2014

Appeal from the Order June 17, 2014
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0002173-2013

BEFORE: GANTMAN, P.J., STABILE, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED JULY 14, 2015

Appellant, the Commonwealth of Pennsylvania, appeals from the order

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

Commonwealth’s motion in limine to admit certain evidence at the trials of

Appellee, Justin Corliss. We reverse and remand for further proceedings.

_________________________

*Retired Senior Judge assigned to the Superior Court.
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The relevant facts and procedural history of this appeal are as follows.

Appellee operated a pet store in Monroe County. In 1993, Appellee

commenced a romantic relationship with his coworker, K.V. Shortly

thereafter, Appellee moved into the residence K.V. shared with her minor

daughter, R.V. In 1995, when R.V. was approximately nine years’ old,

Appellee began to molest R.V. At first, Appellee would tickle R.V. when they

played together. Appellee’s behavior escalated, however, and he began

placing his hands down R.V.’s pants. Appellee digitally penetrated R.V. on

multiple occasions between 1995 and 1997. The abuse occurred at K.V.’s

residence, often while K.V. was in another room. On one occasion, Appellee

inappropriately touched R.V. during a car trip to New York. The molestation

continued until 1997, when Appellee moved out of K.V.’s residence. R.V. did

not immediately report the abuse.

In 1996, fourteen-year-old D.G. began to work at Appellee’s pet store.

D.G.’s father was a regular customer at the pet store, and Appellee had

known D.G. since she was eleven years’ old. After D.G. started working at

the pet store, Appellee would tickle her. Appellee’s behavior escalated, and

he began placing his hands down D.G.’s pants. Eventually, Appellee and

D.G. engaged in sexual intercourse. Appellee also performed oral sex on

D.G. on multiple occasions.

The abuse occurred at the pet store during regular business hours. On

two occasions, D.G.’s twelve-year-old friend witnessed the sexual activity.

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Appellee also fondled D.G. during car trips to New York. D.G. testified that

Appellee took her on these trips “almost every single Monday” to pick up

supplies for the pet store. (N.T. Hearing, 3/18/14, at 31). In addition to the

liaisons at work, Appellee molested D.G. at K.V.’s residence at least once.

In 1997, D.G.’s mother learned about the abuse and immediately informed

police.

At No. 743 of 1997, the Commonwealth charged Appellee with multiple

offenses related to the molestation of D.G. Following a trial in 1998, a jury

convicted Appellee of two (2) counts of statutory sexual assault and one (1)

count each of aggravated indecent assault, indecent assault, and corruption

of minors. On August 20, 1998, the court sentenced Appellee to an

aggregate term of four (4) to ten (10) years’ imprisonment. This Court

affirmed the judgment of sentence on November 30, 1999. See

Commonwealth v. Corliss, 750 A.2d 366 (Pa.Super. 1999) (unpublished

memorandum).

Prior to the start of the 1998 trial, Appellee met C.T. at the pet store.

Appellee and C.T. married, and C.T. became pregnant before Appellee’s

sentencing hearing. C.T. gave birth to Appellee’s daughter, C.C., in 1999

while Appellee was incarcerated. Appellee remained incarcerated until 2008.

Upon his release, Appellee returned to live with C.T. and C.C. C.T. had no

concerns about Appellee being around C.C., because Appellee had convinced

C.T. that he was actually innocent of the charges pertaining to D.G.

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When Appellee would play with C.C., C.T. noticed that Appellee tickled

the child and scratched the child’s back. The tickling started to bother C.C.,

and she asked Appellee not to touch her, but C.T. did not intervene.

Appellee’s relationship with C.T. ended in 2010, after C.T. discovered that

Appellee was having an affair with another teenager. In 2013, C.C.

informed C.T. that Appellee had molested her. C.C. claimed that Appellee

would put his hands down her pants and touch her vagina, exposed his penis

to C.C., and attempted to force the child to perform oral sex on him.

Police arrested Appellee for the offenses against C.C. in July 2013.

The media reported on Appellee’s arrest, and R.V. saw the coverage. R.V.

decided to contact police and inform them of the abuse she suffered from

1995 until 1997. At No. 1749 of 2013, the Commonwealth charged Appellee

with sex offenses committed against C.C. At No. 2173 of 2013, the

Commonwealth charged Appellee with sex offenses committed against R.V.1

On September 24, 2013, the Commonwealth informed Appellee that Nos.

1749 and 2173 of 2013 would be joined for trial. Appellee filed counseled

pretrial motions on October 3, 2013, including a motion to sever the cases.

Ultimately, the court granted Appellee’s motion to sever the cases for trial.

On November 15, 2013, the Commonwealth filed notice of its intent to
____________________________________________

1
At No. 1748 of 2013, the Commonwealth also charged Appellee with
offenses related to his failure to register with state police pursuant to
Megan’s Law. The matters at No. 1748 of 2013 are not at issue in this
appeal.

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introduce “other bad acts” evidence, pursuant to Pa.R.E. 404(b).

Specifically, the Commonwealth sought to introduce evidence of the

molestation of C.C. at trial for the offenses against R.V. Similarly, the

Commonwealth sought to introduce evidence of the molestation of R.V. at

trial for the offenses against C.C. The Commonwealth also sought to

introduce evidence of the molestation of D.G. at both trials. On February

24, 2014, the Commonwealth filed a motion in limine, asking the court to

allow the admission of the Rule 404(b) evidence at Appellee’s trials.2 The

court conducted a hearing on March 18, 2014. At that time, the court

received testimony from K.V. (victim R.V.’s mother), D.G. (prior victim), and

C.T. (victim C.C.’s mother).

____________________________________________

2
Before the parties litigated the Commonwealth’s motion in limine, Appellee
requested to proceed pro se. On January 15, 2014, the court conducted an
oral colloquy to determine whether Appellee’s waiver of counsel was
knowing, voluntary, and intelligent. See Pa.R.Crim.P. 121 (stating
defendant can waive right to trial counsel; to ensure defendant’s waiver is
knowing, voluntary, and intelligent, court must confirm defendant
understands right to be represented by counsel, right to free counsel if
indigent, nature and elements of charges, permissible range of sentences
and/or fines, defendant is bound by all rules of procedure, and defendant
faces waiver of defenses, rights, and challenges to certain errors). Following
the colloquy, the court permitted Appellee to proceed pro se. The court also
provided Appellee with standby counsel. Appellee is pro se on appeal. To
avoid an appealable issue arising from subsequent proceedings, however,
the trial court must again colloquy Appellee to confirm his continued waiver
of counsel, regardless of Appellee’s prior waiver or experience with the
criminal justice system. See generally Commonwealth v. McDonough,
571 Pa. 232, 812 A.2d 504 (2002) and Commonwealth v. Houtz, 856 A.2d
119 (Pa.Super. 2004) (explaining and modifying Commonwealth v.
Payson, 723 A.2d 695 (Pa.Super. 1999)).

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On June 17, 2014, the court entered an order and opinion denying the

Commonwealth’s motion in limine. The court found the Commonwealth’s

other bad acts evidence was relevant to the pending cases at Nos. 1749 and

2173 of 2013. Further, the court determined the evidence was probative of

a common scheme, plan, or design in the pending cases, and the evidence

was not too remote in time. Nevertheless, the court concluded the probative

value of the evidence did not outweigh its potential for undue prejudice. On

this basis, the court denied the Commonwealth’s motion in limine.3

The Commonwealth timely filed notices of appeal at Nos. 1749 and

2173 of 2013 on July 16, 2014.4 On July 17, 2014, the court ordered the

Commonwealth to file concise statements of errors complained of on appeal,

pursuant to Pa.R.A.P. 1925(b). The Commonwealth timely filed Rule

1925(b) statements on July 23, 2014. The Commonwealth subsequently

filed an application to consolidate the appeals, which this Court granted on

November 17, 2014.
____________________________________________

3
As part of its order denying the Commonwealth’s motion in limine, the
court also ruled that the Commonwealth could not introduce other bad acts
evidence at No. 1748 of 2013, in the Commonwealth’s prosecution of
Appellee for failing to register under Megan’s Law. The Commonwealth does
not challenge this aspect of the court’s order.
4
Pursuant to Pa.R.A.P. 311(d), the Commonwealth certified in good faith in
its notices of appeal that the order denying its motion in limine substantially
handicapped the prosecution. Accordingly, this appeal is properly before us
for review. See Commonwealth v. Cosnek, 575 Pa. 411, 836 A.2d 871
(2003) (stating Rule 311(d) applies to pretrial ruling that results in
suppression, preclusion or exclusion of Commonwealth’s evidence).

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The Commonwealth raises two issues for our review:

DID THE TRIAL COURT ABUSE ITS DISCRETION IN
PROHIBITING THE COMMONWEALTH FROM INTRODUCING
EVIDENCE OF [APPELLEE’S] BAD ACTS BY CONCLUDING
THAT THE PROBATIVE VALUE DID NOT OUTWEIGH THE
PREJUDICIAL EFFECT, AFTER CONCLUDING THE EVIDENCE
WAS RELEVANT AND ADMISSIBLE UNDER THE COMMON
SCHEME, PLAN, OR DESIGN EXCEPTION TO PA.R.E.
404(b)?

DID THE TRIAL COURT ABUSE ITS DISCRETION IN
PROHIBITING THE COMMONWEALTH FROM INTRODUCING
EVIDENCE OF [APPELLEE’S] BAD ACTS UNDER THE RES
GESTAE EXCEPTION TO PA.R.E. 404(b)[?]

(Commonwealth’s Brief at 5).

“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)). “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).

In its first issue, the Commonwealth asserts the trial court denied the

motion in limine based upon the court’s mistaken belief that the

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Commonwealth does not need evidence of Appellee’s other bad acts to prove

that Appellee committed the offenses at issue in Nos. 1749 and 2173 of

2013. The Commonwealth emphasizes it has no physical evidence to

corroborate the testimony of victims, C.C. or R.V. Although the

uncorroborated testimony of a victim is enough to convict, the

Commonwealth anticipates Appellee will attack the victims’ credibility with

their failure to make prompt complaints against him. The Commonwealth

insists testimony against Appellee from multiple victims in each case would

check Appellee’s challenge about the lack of prompt complaints; thus,

evidence from the other victims is probative and necessary to the

Commonwealth’s case. The Commonwealth also contends:

[Appellee] denies that the touching occurred, and since the
uncorroborated testimony of the alleged victim[s] in
[these] case[s] might reasonably lead a jury to determine
that there was a reasonable doubt as to whether
[Appellee] committed the crime[s] charged, it is fair to
conclude that the other crimes evidence is necessary for
the prosecution of the case. To hold otherwise would
effectively nullify Rule 404(b) and make it virtually
impossible to introduce any bad act evidence in a “he said,
she said” sexual assault case.

(Commonwealth’s Brief at 21). The Commonwealth concludes the court

should have granted the motion in limine and allowed the Commonwealth to

introduce its Rule 404(b) evidence during both trials, at Nos. 1749 and 2173

of 2013. We agree.

Relevance is the threshold for admissibility of evidence.

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

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Admissibility depends on relevance and probative value.
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 (quoting Stallworth, supra at

363, 781 A.2d at 117-18). “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 governs the admissibility of other

bad acts evidence 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
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.

(3) Notice in a Criminal Case. In a criminal case the
prosecutor must provide reasonable notice in advance of
trial, or during trial if the court excuses pretrial notice on
good cause shown, of the general nature of any such

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evidence the prosecutor intends to introduce at trial.

Comment:

* * *

Pa.R.E. 404(b)(1) is identical to F.R.E. 404(b)(1). It
prohibits the use of evidence of other crimes wrongs or
acts to prove a person’s character.

Pa.R.E. 404(b)(2), like F.R.E. 404(b)(2), contains a
non-exhaustive list of purposes, other than proving
character, for which a person’s other crimes wrongs or
acts may be admissible. But it differs in several
aspects. First, Pa.R.E. 404(b)(2) requires that the
probative value of the evidence must outweigh its
potential for prejudice. When weighing the potential for
prejudice of evidence of other crimes, wrongs, or acts,
the trial court may consider whether and how much
such potential for prejudice can be reduced by
cautionary instructions. See Commonwealth v.
LaCava, 542 Pa. 160, 666 A.2d 221 (1995). When
evidence is admitted for this purpose, the party against
whom it is offered is entitled, upon request, to a limiting
instruction. See Commonwealth v. Hutchinson, 571
Pa. 45, 811 A.2d 556 (2002). Second, the federal rule
requires the defendant in a criminal case to make a
request for notice of the prosecutor’s intent to offer
evidence of other crimes, wrongs or acts. This issue is
covered in Pa.R.E. 404(b)(3) which is consistent with
prior Pennsylvania practice in that the requirement that
the prosecutor give notice is not dependent upon a
request by the defendant.

Pa.R.E. 404(b)(1)-(3) and Comment. Thus, Rule 404(b) permits the

admission of crimes or other acts evidence under certain instances.

Commonwealth v. Russell, 938 A.2d 1082, 1092 (Pa.Super. 2007).

Further, Rule 404(b) “is not limited to evidence of crimes that have been

proven beyond a reasonable doubt in court. It encompasses both prior

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crimes and prior wrongs and acts, the latter of which, by their nature, often

lack ‘definitive proof.’” Commonwealth v. Ardinger, 839 A.2d 1143, 1145

(Pa.Super. 2003) (quoting Commonwealth v. Lockcuff, 813 A.2d 857, 861

(Pa.Super. 2002), appeal denied, 573 Pa. 689, 825 A.2d 638 (2003)).

“[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), cert. denied, 549 U.S. 848, 127 S.Ct. 101, 166 L.Ed.2d 82

(2006). When offered for a legitimate purpose, other acts evidence 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).

“The particular prejudice that Rule 404(b)(3) seeks to prevent is the

misuse of the other-offense evidence−specifically, that jurors might convict

a defendant because they perceive the defendant has a bad character or

propensity to commit crimes.” Commonwealth v. Cascardo, 981 A.2d

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245, 251 (Pa.Super. 2009), appeal denied, 608 Pa. 652, 12 A.3d 750

(2010). See also Pa.R.E. 403 Comment (stating: “‘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”).

Additionally, when weighing the potential for prejudice, a
trial court may consider how a cautionary jury instruction
might ameliorate the prejudicial effect of the proffered
evidence.

However, evidence will not be prohibited merely because it
is harmful to the defendant. Exclusion is limited to
evidence so prejudicial that it would inflame the jury to
make a decision based upon something other than the
legal propositions relevant to the case.

Commonwealth v. Page, 965 A.2d 1212, 1220 (Pa.Super. 2009), appeal

denied, 621 Pa. 665, 74 A.3d 125 (2013) (internal citations and quotation

marks omitted).

A common plan, scheme, or design may be relevant to establish any

element of a crime. Commonwealth v. Einhorn, 911 A.2d 960 (Pa.Super.

2006), appeal denied, 591 Pa. 723, 920 A.2d 831 (2007).

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
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

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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. Tyson, 2015 PA Super 138, 7-8 (filed June 10, 2015)

(en banc) (quoting Commonwealth v. G.D.M., Sr., 926 A.2d 984, 987

(Pa.Super. 2007), appeal denied, 596 Pa. 715, 944 A.2d 756 (2008)).

“While remoteness in time is a factor to be considered in determining

the probative value of…evidence under this theory, the importance of the

time period is inversely proportional to the similarity of the [acts] in

question.” Commonwealth v. O’Brien, 836 A.2d 966, 971 (Pa.Super.

2003), appeal denied, 577 Pa. 695, 845 A.2d 817 (2004). 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).

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Instantly, the trial court issued a lengthy opinion with its order denying

the Commonwealth’s motion in limine. In its opinion, the court first

determined that the Commonwealth’s other bad acts evidence was relevant:

In case [No. 1749 of 2013], [Appellee] is charged with
various sex offenses against C.C. that occurred in 2009
and/or 2010. The evidence sought to be introduced by the
Commonwealth is testimony of another victim, who was a
minor at the time, as to [Appellee’s] alleged sexual abuse
of her. This evidence tends to make the fact that
[Appellee] committed a similar crime more probable. If
the Commonwealth’s allegations in the present case are
accepted as true, the evidence of the incidents that
occurred in 1995-1997 as to R.V. (charged in case [No.
2173 of 2013]) when she was 9-11 years’ old would be
relevant in demonstrating [Appellee’s]…common scheme,
plan or design to sexually assault young girls…. This is
also true of the conviction in [No. 743 of 1997] where the
victim was sexually assaulted by [Appellee] when she was
14 and [Appellee] had contact with her starting when she
was 11 years’ old. Accordingly, we hold that the bad acts
involving incidents of sexual abuse by [Appellee]…are
relevant.

(See Trial Court Opinion, filed June 17, 2014, at 6.) The court also found

the evidence was probative of a common scheme, plan or design in the

pending cases:

The factual similarities of the allegations involving R.V.
[(No. 2173 of 2013)], D.G. [(No. 743 of 1997)], and C.C.
[(No. 1749 of 2013)] are somewhat convincing. The
similarities are that all of the charges in each of these
three matters involve [Appellee] sexually assaulting young
girls. All of the victims share similar personal
characteristics. Each girl was white, between the ages of 9
and 14, and each girl was in a close family relationship or
in a position of trust with [Appellee]. For instance, C.C.
and R.V. were the daughters of women [Appellee] lived
with and he lived with the victims too. D.G. came into
[Appellee’s] store as a customer with her family, and

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[Appellee] quickly befriended her.2 In the two pending
sexual assault cases, [Appellee] began a relationship with
the victims’ mothers, moved in with them, and soon after,
began sexually assaulting them.3 In the case of D.G., for
which [Appellee] was convicted, he maintained a very
close relationship with D.G. and told her he loved her. In
all three cases, [Appellee] was in a position of trust over
the victims and he continued assaulting them until he
moved out, or in the case of D.G., was arrested by the
police.
2
We note that D.G. was 14 when [Appellee] had oral
and vaginal intercourse with her, but [Appellee]
started touching and tickling her when she was as
young as 11 and 12 years old, and putting his hand
inside her clothes when she was 12.
3
We note [Appellee] initially moved in with C.C.’s
mother after leaving R.V.’s mother’s house, but C.C.
was not yet born. But ten years later, upon
[Appellee’s] release from prison, he moved back in
with C.C.’s mother and then allegedly began
assaulting C.C. soon thereafter.

[Appellee] met R.V.’s and C.C.’s mothers through work,
and he met D.G. at his own store. [Appellee] began
touching all three girls by tickling them. In all three
matters, it progressed to placing his hands under their
clothes. The touching continued until he eventually
touched their vaginas. [Appellee] eventually had vaginal
intercourse with one victim. In all three cases, the order
of progression was the same; [Appellee] just progressed
further in some cases.

In R.V. and D.G.’s case, [Appellee] drove the victims with
him to New York to obtain pet supplies for his store, and
during the trips, he sexually assaulted the girls. In the
case of both R.V. and C.C., the incidents took place in their
home, often while the victims’ mothers were present in
another room. [Appellee] had sexual encounters with D.G.
in his store during business hours when anyone could walk
into the store. On at least one occasion, [Appellee] had
sex with D.G. while a friend of D.G. was present and
watched. On another occasion, [Appellee] took D.G. to

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R.V.’s house, where he was living at the time, and had sex
with her there. Anyone could have come home at that
time. This degree of similarity is an important factor in
determining the admissibility of other crimes or acts as
relevant to show a common scheme or plan.

(Id. at 20-21).

Nevertheless, the court concluded the probative value of the evidence

did not outweigh its potential for undue prejudice. The court emphasized,

“[T]he Commonwealth does not need evidence of the other two cases to

prove the facts in each case.” (Id. at 30). Further, the court insisted:

[The admission of] evidence of the matters involving R.V.
and the 1998 conviction into the case involving C.C., and
vice versa, would inflame a jury into declaring guilt based
upon the other allegations. A prior conviction is extremely
prejudicial and rarely allowed as evidence in any criminal
case due to the prejudicial effect on a jury. Specifically, in
this matter, [Appellee’s] prior conviction[s] [were] for
statutory sexual assault, aggravated indecent assault,
indecent assault, and corruption of minors in a matter
involving a 14-year-old victim. [Appellee] ultimately
served ten years for the offense[s]. Evidence of [these]
conviction[s], events surrounding the conviction[s], and
the resulting sentence would severely prejudice the jury.
The jury could certainly convict on the theory that if he did
it before, he could do it again. A cautionary instruction
would have little effect on a jury due to this evidence.

(Id. at 31).

Here, the trial court ignored the dearth of physical evidence to support

the victims’ accounts of the molestation. Likewise, the court does not

mention Appellee’s repeated denials of the allegations against him. Thus,

the uncorroborated testimony of each alleged victim could lead a jury to

reasonable doubt on whether Appellee committed the offenses against that

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victim. Under these circumstances, the other bad acts evidence is necessary

for the Commonwealth’s prosecutions. See Commonwealth v. Gordon,

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

convictions for indecent assault was not unduly prejudicial in prosecution for

another indecent assault; evidence was relevant to prove, inter alia,

common scheme or plan, and evidence was necessary for prosecution of

case since defendant denied nonconsensual touching of victim occurred, and

victim’s testimony was uncorroborated). See also Commonwealth v.

Aikens, 990 A.2d 1181 (Pa.Super. 2010), appeal denied, 607 Pa. 694, 4

A.3d 157 (2010) (holding evidence of defendant’s prior sexual abuse of his

daughter was admissible to show common scheme, design, or plan in

prosecution for corruption of minor, endangering welfare of child, and

indecent assault; both victims were defendant’s biological daughters, both

victims were of similar age when abuse occurred, defendant initiated contact

with both victims during overnight visits to his apartment, and defendant

showed pornographic movie to both victims); O’Brien, supra (holding

evidence of defendant’s prior sexual assaults of children was admissible to

show common scheme, plan or design in prosecution for sexual assault of

minor; all charges stemmed from defendant’s sexual assaults on young

boys, all victims shared similar personal characteristics, crimes were not too

remote in time, and probative value of other crimes evidence outweighed

prejudicial effect). We conclude the court erred in denying the

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Commonwealth’s motion in limine. Based upon the foregoing, we reverse

that portion of the order denying the Commonwealth’s motion in limine to

admit other bad acts evidence at Nos. 1749 and 2173 of 2013, and we

remand for further proceedings.5, 6

Order reversed; case remanded for further proceedings. Jurisdiction is

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/14/2015

____________________________________________

5
Due to our resolution of the Commonwealth’s first issue, we need not
address the second claim raised on appeal.
6
In August 2014, Appellee filed two pro se motions to dismiss the
Commonwealth’s appeals for lack of jurisdiction. On September 30, 2014,
this Court denied Appellee’s motions without prejudice to Appellee’s right to
raise identical issues before the merits panel. Appellee’s brief on appeal
again raises his challenges to subject matter jurisdiction. Specifically,
Appellee alleges certain deficiencies with his preliminary hearing as well as
violations of the statutes of limitations. The certified record reveals Appellee
raised these arguments with the trial court, which denied relief. The court
also denied Appellee’s pro se motion to certify interlocutory order for appeal,
where Appellee sought appellate review of the same claims he now attempts
to raise in this appeal. On this record, we deny Appellee’s pro se motions to
dismiss. See Pa.R.A.P. 341 (explaining appeal may be taken from final
order; final order is any order that disposes of all claims and parties, is
expressly defined as final order by statute, or is entered as final order
pursuant to Rule 341(c)).

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