J-A26033-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellant
v.
KEVIN SCOTT BOWER, JR.
No. 773 MDA 2017
Appeal from the Order April 28, 2017
in the Court of Common Pleas of Clinton County
Criminal Division at No(s): CP-18-CR-0000536-2015
BEFORE: BOWES, OLSON, and RANSOM, JJ.
MEMORANDUM BY RANSOM, J.: FILED APRIL 16, 2018
Appellant, the Commonwealth of Pennsylvania, appeals from the court’s
order entered April 28, 2017, denying its motion to admit evidence of prior
bad acts pursuant to Pa.R.E. 404(b). We affirm.
As this case has not yet proceeded to trial, the “facts” are confined to
allegations contained within the criminal complaint. See Criminal Compl.,
11/17/15, at 1-4. The complainant, N.D., averred that on August 9, 2015,
Appellee sexually assaulted her after a night out with friends. Id. at 3.
Appellee offered to drive N.D., who had been drinking, home. Id. Instead,
he drove her to a park where he climbed on top of her and held her down.
Id. Despite N.D.’s protests, Appellee pulled down her jeans, penetrated her,
and ejaculated inside of her. Id. During an interview with police, Appellee
initially claimed that N.D. had initiated the encounter. Id. at 3-4. After failing
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a polygraph test, Appellee admitted he had lied because he was scared and
that N.D. had not consented to sex with him. Id. at 4.
Appellee was arrested and charged with sexual assault, aggravated
indecent assault without consent, and indecent assault without consent.1 Prior
to trial, the Commonwealth filed a motion seeking to introduce, pursuant to
Pa.R.E. 404(b), evidence of Appellee’s August 31, 2009 guilty plea to indecent
assault. See Mot. in Limine, 1/20/17, at 1-3; see also Notes of Testimony
(N.T.), 8/31/09, at 2-7. The Commonwealth argued that evidence of the prior
plea should be introduced to show a common scheme, plan, or design, and to
show that the defendant did not mistakenly conclude the victim had
consented. See Mot. in Limine, 1/20/17, at 3.
In August 2009, Appellee pleaded guilty to indecent assault and
admitted to the facts contained within the criminal information. See N.T. at
4. Further, Appellee specifically admitted that on January 18, 2009, he held
J.G. down against her will, pulled off her sweatpants, penetrated her, and
ejaculated inside of her. Id. at 4. The criminal information provided further
details, namely that Appellee was J.G.’s ex-boyfriend and the assault occurred
at her home after hanging out at a bar. See Criminal Information, 5/26/09,
at 1. Appellee initially told police that the encounter was consensual. Id.
In April 2017, the court heard oral argument on the motion. The
Commonwealth contended that pursuant to Commonwealth v. Tyson, 119
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1 See 18 Pa.C.S. §§ 3124.1, 3125(a)(1), and 3126(a)(1), respectively.
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A.3d 353 (Pa. Super. 2015) (en banc), appeal denied, 128 A.3d 220 (Pa.
2015), the prior conviction was sufficient to show a common plan, as the facts
in each case were substantially similar. See N.T., 4/27/17, at 4-5. The victim
in the 2009 case was deceased, and the Commonwealth intended to use the
guilty plea as a means to introduce the evidence. Id. at 8. Appellee argued
that the matters were not similar, beyond the fact that Appellee knew both
women, and that the evidence would be more prejudicial than probative. Id.
Following argument, the court issued an order denying the Commonwealth’s
motion.
The Commonwealth timely appealed and filed a court-ordered Pa.R.A.P.
1925(b) statement of errors complained of on appeal.2 The trial court did not
issue a responsive opinion but relied upon the reasoning outlined in its April
28, 2017 order.
On appeal, the Commonwealth raises a single issue for our review:
Did the trial court abuse its discretion in denying the
Commonwealth’s motion to admit other acts evidence associated
with [Appellee’s] 2009 indecent assault conviction when the facts
of [Appellee’s] prior case were strikingly similar to the sexual
assault charged in the instant matter and were admissible to prove
(1) a common plan or scheme and (2) an absence of mistake or
consent?
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2 In its notice of appeal, the Commonwealth certified that the trial court’s
order denying its motion to admit evidence of prior bad acts pursuant to
Pa.R.E. 404(b) terminates or substantially handicaps the prosecution. See
Pa.R.A.P. 311(d) (permitting interlocutory appeal where Commonwealth
certifies with its notice of appeal that order terminates or substantially
handicaps prosecution). Thus, the appeal is properly before us. See
Commonwealth v. Ivy, 146 A.3d 241, 244 n.2 (Pa. Super. 2016).
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Commonwealth’s Brief at 4 (unnecessary capitalization omitted).
Essentially, the Commonwealth argues that the two assaults are
substantially similar such that they show a common plan or scheme. The
Commonwealth notes that Appellee: 1) targets a female acquaintance after a
night of drinking before isolating and assaulting her; 2) removes only the
amount of clothing from the victim necessary to accomplish his objective; 3)
holds the victim down by force; 4) does not remove his own clothing; 5)
ejaculates inside of the victim; 6) initially portrays the encounters as
consensual before admitting they were not consensual. See Commonwealth’s
Brief at 16.
We have previously observed that
[a]dmission 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. 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.
Tyson, 119 A.3d at 357–58.
Pennsylvania Rule of Evidence 404(b) provides that “[e]vidence of other
crimes, wrongs, or acts may be admitted for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity or absence
of mistake or accident.” See Commonwealth v. Moser, 999 A.2d 602, 605-
06 (Pa. Super. 2010); see also Pa.R.E. 404(b). “[E]vidence of prior crimes
is not admissible for the sole purpose of demonstrating a criminal defendant’s
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propensity to commit crimes.” Commonwealth v. Melendez–Rodriguez,
856 A.2d 1278, 1283 (Pa. Super. 2004). Such evidence is admissible only if
offered for a non-propensity purpose. Id.
First, the Commonwealth contends that the evidence is admissible under
the common plan, scheme, or design exception. See Commonwealth’s Brief
at 16. It avers that the facts of each crime were substantially similar and that
the evidence is probative of whether N.D. consented to intercourse. Id. at
24-36. Further, the Commonwealth avers that the 2009 assault is not too
remote in time and that the probative value of the prior assault outweighs its
potential for undue prejudice. Id. at 36-42.
When the Commonwealth seeks to admit a prior bad act under the
common plan, scheme, or design exception, the trial court must first consider
the details and surrounding circumstances of each incident to “assure that the
evidence reveals criminal conduct which is distinctive and so nearly identical
as to become the signature of the perpetrator.” See Commonwealth v.
G.D.M., Sr., 926 A.2d 984, 987 (Pa. Super. 2007). Matters for consideration
include “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.” Id.
Generally, the court must also consider additional balancing factors,
including remoteness and potential for prejudice. Id. When considering
remoteness, if the details of the crimes are “nearly identical,” the court may
excuse a lapse of time unless it is “excessive.” Id. When considering potential
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prejudice, the court must examine: 1) the degree of similarity between the
crimes; 2) the Commonwealth’s need to present evidence; and 3) the ability
of the trial court to caution the jury concerning the proper use of such evidence
in their deliberations. Id.; see also Commonwealth v. Dillon, 921 A.2d
131, 141 (Pa. 2007) (noting that unfair prejudice is 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).
Our Court has previously noted that:
[t]he essential elements of the act of rape, as well as other sexual
crimes, will necessarily produce any number of similar
characteristics when two acts of rape are scrutinized for shared
features, particularly where, as we have here seen, there is
commonality of roles and situs attendant the criminal episodes.
Commonwealth v. Frank, 577 A.2d 609, 614 (Pa. Super. 1990). Due to
these “similar characteristics,” our Courts have also looked at additional
qualities to determine substantial similarity, including the race, age, and sex
of the victims; the time of day of the crime; the proximity to the defendant’s
home and between the crime scenes; the manner and location to which the
victim was taken. Id. at 614-16.
The Commonwealth relies upon Commonwealth v. Tyson to support
its contention that the matters are substantially similar. In Tyson, the trial
court denied the Commonwealth’s motion to admit evidence of a rape that the
defendant had committed five years prior to the offense for which he was
being tried. See Tyson, 119 A.3d at 357. An en banc panel of this Court
reversed, holding that evidence of the prior conviction was admissible under
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the common plan exception, and to prove absence of mistake or accident and
that the five-year time period between the defenses was not too remote as to
be admissible. Id. at 360-63.
In that case, we noted that the similarities between the allegations were
substantial, including that: 1) the defendant was acquainted with both
victims; 2) the victims were of the same age and race; 3) the defendant was
an invited guest in each victim’s home; 4) the defendant assaulted the victims
while they were in a weakened state; 5) each victim lost consciousness; 6)
each victim woke in her bedroom early in the morning to find the defendant
having vaginal intercourse with her. Id. at 360. Thus, the panel concluded
that the evidence should be admissible to show that the defendant had a
common scheme of nonconsensual intercourse with unconscious victims.3 Id.
at 361.
The instant case is not analogous to Tyson. The trial court noted that:
Nothing in the record with regard to the Commonwealth’s
[m]otion suggests any information regarding the ages, hair color,
racial characteristics, or any other characteristics concerning the
alleged victims. Limited information is available concerning the
prior relationship between the defendant and the alleged victims
. . . We specifically find the Commonwealth has failed to establish
sufficient similarities between these two incidents as to make the
incidents distinctive and so nearly identical as to become the
signature of the same perpetrator.
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3 This Court also noted that the evidence should be admissible because
evidence of the prior conviction would belie the defendant’s claim that he
“mistakenly believed” the victim was awake or gave her consent. Id. at 362-
63. As the Commonwealth raises this issue separately, we will address it infra.
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See Trial Court Opinion (TCO), 4/28/17, at 3. We see no error or abuse of
discretion in this conclusion. See, e.g., Commonwealth v. Miller, --- A.3d
---, *12 (Pa. Super. 2017) (noting that while crimes were both purportedly
assaults in similar locations, the factual overlap between the two incidents
does not go beyond the commission of crimes or conduct of the same general
class).
Examining the Commonwealth’s list of similarities in detail shows many
similarities common to any sexual assault, but nothing so specific as to
constitute a common scheme or plan, a signature. See Commonwealth’s Brief
at 17; contra Tyson, 119 A.3d at 363; see also Commonwealth v.
Hughes, 555 A.3d 1264, 1282 (Pa. 1989) (finding that numerous similarities
including race, gender, age, location, means of acquisition of the victim,
constituted substantial similarities that represented the “unique signature” of
the defendant). As we do not find that the crimes are so substantially similar
as to be admissible under the common scheme act, we need not examine
remoteness or prejudice in detail. See, e.g., Commonwealth v. Aikens,
990 A.2d 1181, 1185-86 (Pa. Super. 2010) (noting that the importance of
time period is inversely proportional to the similarity of the crimes in
question).
Next, the Commonwealth argues that evidence of the 2009 sexual
assault should also be admitted to show absence of mistake or consent. See
Commonwealth’s Brief at 36. The Commonwealth contends that there is no
dispute that the defendant and N.D. engaged in intercourse; instead, the sole
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determinative issue is N.D.’s consent. Id. Thus, evidence of the 2009 guilty
plea should be admitted to rebut the argument that N.D. consented, because
the defendant made a similar claim in 2009. Id.
Tyson permitted the admission of the prior conviction to show absence
of mistake. Tyson, 119 A.3d at 362. The defendant claimed that he thought
the victim had consented, and the Court held that due to “relevant similarities”
between the two incidents, this evidence would tend to prove the defendant
did not mistakenly believe that the victim was awake or gave her consent.
Id. The conviction should have enabled the defendant to recognize that the
victim’s physical condition rendered her unable to consent. Id. at 362-63.
Essentially, the legal consequences of a substantially similar act should have
put the defendant on notice that consent was at issue.
In Tyson, this Court found that “relevant similarities” between the two
instances meant that the defendant should be aware of the consequences of
his actions. Tyson, 119 A.3d at 362. We did not find such relevant similarities
above. Id. Further, there was little to no testimony regarding J.G.’s consent,
state of awareness, or lack thereof during the assault such that absence of
mistake or consent would be relevant. J.G., deceased, is not available to
provide further testimony on this subject. Accordingly, the prior conviction
was not relevant to establish an absence of mistake or consent, and the trial
court did not abuse its discretion in denying the Commonwealth’s motion. But
see, e.g., Tyson, 119 A.3d at 363.
Order affirmed. Jurisdiction relinquished.
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Judge Olson files a concurring memorandum.
Judge Bowes files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/16/2018
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Com. v. Bower, K., Jr.
Combined Opinion