J-A20032-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GARY L. CAIN JR. :
:
Appellant : No. 1200 MDA 2018
Appeal from the Judgment of Sentence Entered February 8, 2018
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0000280-2017
BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY GANTMAN, P.J.E.: FILED OCTOBER 25, 2019
Appellant, Gary L. Cain Jr., appeals from the judgment of sentence
entered in the Centre County Court of Common Pleas, following his jury trial
convictions for one count each of rape, statutory sexual assault, involuntary
deviate sexual intercourse (“IDSI”) with a person less than 16 years old,
attempted IDSI with a person less than 16 years old, sexual assault, and
corruption of minors (“COM”), two counts of indecent assault, and sixteen
counts of unlawful contact with a minor.1 We affirm.
The relevant facts and procedural history of this case are as follows. On
March 17, 2017, the Commonwealth charged Appellant with 158 counts of
various sex offenses in relation to sexual assaults Appellant committed on
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1 18 Pa.C.S.A. §§ 3121(a)(1); 3122.1; 3123(a)(7); 901 (section 3123(a)(7)
related); 3124.1; 6301(a)(1)(ii); 3126(a)(1), (8); 6318(a)(1), respectively.
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Victim between January 1, 2007 and June 30, 2016, beginning when Victim
was 12 years old. Victim was acquainted with Appellant because he was a
neighbor, and Appellant and his family lived with Victim for a short time after
Appellant’s house was damaged by fire. Specifically, the affidavit of probable
cause alleged, inter alia:
The following are [V]ictim’s [recollections] of the assaults.
It is believed Probable Cause exists to indicate that
[Appellant] had anally raped [Victim] on (13) different
occasions, once while she was less than 13 [years old]. He
had also attempted to have sex with her on another
occasion and indecently assaulted her on a separate one.
- At a time period when [Appellant] was rebuilding his house
in Unionville ([h]is original house burnt down in Dec 2012)
he put [V]ictim’s head between his legs while both were
clothed. Only inappropriate touching occurred. Victim
believed to be 12 [years old] at [the] time.
- On another occasion while [Appellant] was rebuilding his
house, he was sitting on a chair with [Victim] in the living
room and performed anal sex on her against her wishes.
She was believed to be 12 [years old] at the time.
- When [Victim] lived beside [Appellant] in Unionville, he
had her come into his bedroom and performed anal sex on
her against her wishes. She was believed to be 13 [years
old] at the time.
- When at [Victim’s] house in Unionville, [Appellant] had
anal sex with her while he and his family were staying with
them until he could move into his rebuilt house ([f]rom Dec
2012-Jan 2013). She would have been 13 [years old] at the
time.
- When [Victim] was over at [Appellant’s] house after the
rebuild, [Appellant] forced anal sex with her in his
daughter’s bedroom when no one else was home. She
would have been 13 [years old].
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- At [Appellant’s] residence in the bathroom after the
rebuild. His other family members were busy at the time
with company. He performed anal sex with her. [Victim]
would have been 13 years old at [the] time.
- At [Appellant’s] house after the rebuild in his living room
on the couch. It was just her and [Appellant] present at
[the] time. He took off his pants and had her get [on top]
of him and began “humping” her with clothes on before
someone came to the residence door. [Victim] would have
been 13 [years old].
- At [Victim’s] house [in Milesburg] in her bedroom.
[Victim’s] mother and sisters were there. He forced her to
have anal sex with her. She would have been 14 [years old]
at this time.
- In [Appellant’s] truck when [Victim] lived…in Milesburg.
[Appellant] drove his truck back somewhere away from
houses not far from where she was living. He parked it and
performed anal sex on her. She was 14 [years old] at this
time.
- At the Howard Dam at [the] time when [Victim] was still
living [in Milesburg]. [Appellant’s wife] had picked her up
and taken her there. The three of them were there when
[Appellant] sent [his wife] to get something in the car.
[Appellant] then forced her to have anal sex. She was 14
[years old] at the time.
- Two occasions in the woods when [Victim] was living [in
Milesburg]. [Victim] was going to her [grandmother’s]
house in Unionville when [Appellant] asked her to go back
in the woods with him. He performed sex on her from the
front and she believed she was bleeding. He still made her
have anal sex with him. She stated that her “butt” and front
hurt after the incident(s).
- There was an incident in the weeds by [Victim’s
grandmother’s] house in Unionville. [Victim] was living [in
Milesburg]. [Appellant] forced her to have anal sex with
him. She would have been 14 [years old] at the time.
- At a hotel on Benner Pike in Bellefonte. Believed it was
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Econolodge. [Victim] lived in Bellefonte at the time and
[Appellant] picked her up under the premise that he was
going to get tires on his truck. He rented a room for a few
hours and had anal sex with her. She was 16 [years old] at
the time.
- At the Kepler Pool parking lot when [Victim] was living in
Bellefonte. He forced her to have anal sex with him. She
would have been 16 [years old] at the time.
All of the aforementioned incidents happened against
[V]ictim’s wishes.
(Affidavit of Probable Cause, dated February 10, 2017, at 1-2).
On November 3, 2017, the Commonwealth filed a motion in limine for
introduction of evidence of prior bad acts, pursuant to Pa.R.E. 404(b).
Specifically, the Commonwealth sought to introduce the following evidence:
(1) in July of 1994, Appellant lured 13-year-old E.S. into his car in the middle
of the night under false pretenses; Appellant drove E.S. to a secluded parking
lot and forcibly raped her; Appellant told E.S. not to tell anyone; (2) on July
25, 2000, Appellant pled guilty to six counts of statutory sexual assault and
one count each of COM and aggravated indecent assault, in connection with
Appellant’s sexual assaults on J.D.; Appellant had sex with J.D. six times
between September 11, 1999 and November 20, 1999; J.D. was 13 years old
at the time; the court sentenced Appellant on April 25, 2001, to an aggregate
5 to 10 years’ imprisonment; (3) on July 25, 2000, Appellant pled guilty to
three counts of statutory sexual assault and one count of COM, in connection
with Appellant’s sexual assaults on A.H.; Appellant had sex with A.H. three
times between September 1, 1999 and November 26, 1999; A.H. was
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approximately 15 years old at the time; the court sentenced Appellant to an
aggregate 5 to 10 years’ imprisonment (concurrent with the sentence imposed
relative to J.D.); (4) on July 25, 2000, Appellant pled guilty to one count each
of aggravated indecent assault and COM, and three counts of indecent assault,
in connection with Appellant’s sexual assaults on M.V.; Appellant had sexual
contact with M.V. twice between November 1, 1999 and January 28, 2000;
M.V. was approximately 14 years old at the time; Appellant took M.V. for a
ride to a secluded location and assaulted her in his car; the court sentenced
Appellant to an aggregate 5 to 10 years’ imprisonment (concurrent with the
sentence imposed relative to J.D. and A.H.), plus 10 years’ probation.
The Commonwealth argued evidence of Appellant’s prior bad acts was
strikingly similar to the current offenses, highly probative, and demonstrated
a common plan, scheme or design. The Commonwealth emphasized that each
of Appellant’s victims was a young teenage girl, between the ages of 12 and
15 when the assaults began, who was an acquaintance or neighbor of
Appellant. In each instance, Appellant found ways to be alone with his victims.
The Commonwealth insisted Appellant’s prior offenses were similar to the
current offenses, in which Appellant sexually assaulted Victim over a dozen
times when she was between 12 and 16 years old, in multiple parking lots,
secluded locations, and in his or Victim’s bathroom or bedroom. The
Commonwealth maintained the proffered evidence showed a clear pattern of
behavior. The Commonwealth contended its substantial need to present the
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proffered evidence because Appellant assaulted Victim in private over a period
of years, leading to a lack of forensic evidence. As well, the Commonwealth
claimed the proffered evidence was necessary to rebut Appellant’s theory that
Victim fabricated the allegations. The Commonwealth further averred the
court should exclude the time of Appellant’s incarceration (from March 28,
2000 to December 4, 2006) when conducting a remoteness analysis.
On November 6, 2017, Appellant filed a motion in limine to admit
evidence of “manipulation” and a “civil conspiracy to fabricate.” Specifically,
Appellant alleged, inter alia, he has two daughters who were sexually
assaulted by William Beck. Appellant maintained the Commonwealth was
currently prosecuting William Beck for those sexual assaults. Appellant
claimed David Beck (William Beck’s brother) dates or is best friends with
Victim. Appellant insisted William Beck was arrested on or around June 8,
2016. Appellant emphasized that David Beck called police on or around June
22, 2016, to report the current sexual offenses by Appellant on Victim.
Appellant sought to introduce evidence of various jailhouse recordings
between William Beck and other members of the Beck family during June
2016, in which William Beck stated he would only get 5 to 10 years’
imprisonment in connection with his sexual assaults on Appellant’s daughters,
if he could implicate Appellant in any type of criminal wrongdoing. Appellant
contended the jailhouse recordings expressly discussed Victim and
encouraged Victim to report Appellant’s assaults. Appellant insisted the
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proffered evidence showed a relationship between Victim and the Beck family
and Victim was fabricating the allegations against Appellant in retaliation for
Appellant’s accusations that William Beck had sexually assaulted his
daughters.
The court held a motion in limine hearing on November 7, 2017. On
November 9, 2017, the court denied both motions. That day, the
Commonwealth filed a motion for reconsideration. The court held a hearing
on the Commonwealth’s motion for reconsideration on November 13, 2017.
At the conclusion of the hearing, the court permitted the Commonwealth to
introduce evidence of Appellant’s prior bad acts concerning only M.V. and A.H.
Appellant proceeded to a jury trial on November 14, 2017. On
November 15, 2017, the jury convicted Appellant of one count each of rape,
statutory sexual assault, IDSI with a person less than 16 years old, attempted
IDSI with a person less than 16 years old, sexual assault, and COM, two counts
of indecent assault, and sixteen counts of unlawful contact with a minor. The
court sentenced Appellant on February 8, 2018, to an aggregate 175 to 350
years’ imprisonment. Appellant timely filed post-sentence motions on
Tuesday, February 20, 2018.2 The court held a hearing on Appellant’s post-
sentence motions on May 11, 2018, and denied relief on June 22, 2018.
____________________________________________
2 February 18, 2018 was a Sunday and the court was closed on Monday,
February 19, 2018 for Presidents’ Day. See 1 Pa.C.S.A. § 1908 (explaining
whenever last day of any filing period falls on Saturday or Sunday, or on any
legal holiday, that day shall be omitted from computation).
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Appellant timely filed a notice of appeal on July 18, 2018. On August 9, 2018,
the court ordered Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b), which Appellant timely filed on
August 22, 2018.
Appellant raises two issues for our review:
WHETHER THE TRIAL COURT ERRED IN PROHIBITING
APPELLANT FROM INTRODUCING RELEVANT, RELIABLE,
AND EXCULPATORY EVIDENCE IN THE FORM OF WILLIAM
BECK’S JAILHOUSE RECORDINGS AT TRIAL?
WHETHER THE TRIAL COURT ERRED IN GRANTING THE
COMMONWEALTH’S MOTION FOR RECONSIDERATION,
WHICH PERMITTED THE ADMISSION OF PRIOR BAD ACT
EVIDENCE IN THE FORM OF APPELLANT’S PAST CRIMINAL
CONVICTIONS FOR CONDUCT THAT WAS NOT
SUFFICIENTLY SIMILAR TO THE CHARGES AT ISSUE,
WHERE THE PRIOR BAD ACTS WERE ADMITTEDLY BEING
USED TO SHOW PROPENSITY ON BEHALF OF APPELLANT
AND BOLSTER THE TESTIMONY OF THE COMPLAINING
WITNESS, AND WHERE THE PREJUDICIAL EFFECT OF THIS
EVIDENCE GREATLY OUTWEIGHED ANY ARGUABLE
PROBATIVE VALUE?
(Appellant’s Brief at 11).
Our standard of review of a trial court’s admission or exclusion of
evidence is well established and very narrow:
Admission of evidence is a matter within the sound
discretion of the trial court, and will not be reversed absent
a showing that the trial court clearly abused its discretion.
Not merely an error in judgment, an abuse of discretion
occurs when the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias, or ill-will, as shown by
the evidence on record.
Commonwealth v. Montalvo, 604 Pa. 386, 403, 986 A.2d 84, 94 (2009),
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cert. denied, 562 U.S. 857, 131 S.Ct. 127, 178 L.Ed.2d 77 (2010) (internal
citations and quotation marks omitted). Our scope of review in cases where
the trial court explains the basis for its evidentiary ruling is limited to an
examination of the stated reason. Commonwealth v. Stephens, 74 A.3d
1034, 1037 (Pa.Super. 2013). “We must also be mindful that a discretionary
ruling cannot be overturned simply because a reviewing court disagrees with
the trial court’s conclusion.” Commonwealth v. O’Brien, 836 A.2d 966, 968
(Pa.Super. 2003), appeal denied, 577 Pa. 695, 845 A.2d 817 (2004).
In his first issue, Appellant argues the jailhouse recordings
demonstrated Victim’s relationship with the Beck family and suggested
Victim’s motive to fabricate the allegations against Appellant. Appellant
asserts the recordings were reliable, relevant, and exculpatory evidence
because they showed Victim’s bias against Appellant. Appellant claims the
recordings are not hearsay because Appellant offered them only to show
Victim’s motive to lie, and not for the truth of the matter asserted. In any
event, Appellant contends the recordings were admissible under the
“statement against interest” hearsay exception. Appellant maintains the
probative value of the recordings vastly outweighed its prejudicial effect.
Appellant insists the recordings were the only way to prove Victim’s motive to
fabricate. Appellant highlights a remark from the notes of a Children and
Youth Services (“CYS”) caseworker expressing concern that Mary Beck was
“filling [Victim’s] head full of stuff in retaliation.” Appellant contends the
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caseworker’s note supported his claim of a motive to fabricate. Appellant
concludes the trial court’s exclusion of the jailhouse recordings was improper,
and this Court must reverse and remand for a new trial.3 We disagree.
“The threshold inquiry with the admission of evidence is whether the
evidence is relevant.” Commonwealth v. Stokes, 78 A.3d 644, 654
(Pa.Super. 2013), appeal denied, 625 Pa. 636, 89 A.3d 661 (2014). “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 the existence of a material fact.” Id. See also
Pa.R.E. 401 (defining relevant evidence). Nevertheless, “[t]he 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. See also Commonwealth v. Cook, 544
Pa. 361, 676 A.2d 639 (1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 967,
136 L.Ed.2d 851 (1997) (holding trial court properly excluded defendant’s
proffered testimony from four witnesses, that victim owed money to his drug
supplier, to support defense theory that Appellant did not commit crimes at
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3 To the extent Appellant raises a due process argument on appeal, that
particular claim is waived for failure to specify it in his Rule 1925(b) statement.
See Commonwealth v. Hansley, 24 A.3d 410 (Pa.Super. 2011), appeal
denied, 613 Pa. 642, 32 A.3d 1275 (2011) (explaining vague concise
statement is functional equivalent of no statement at all; failure to specify
claim of error in concise statement constitutes waiver on appeal).
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issue; proffered evidence was merely speculative and had little to no probative
value).
Instantly, the trial court addressed this issue as follows:
[Appellant] sought to introduce jailhouse recordings of
William Beck and [Mr.] Beck’s family. The recordings clearly
indicate William Beck’s hatred of [Appellant] and [Mr.]
Beck’s willful desire to…provide testimony against
[Appellant]. There is nothing in the records demonstrating
a plan to have [V]ictim in this case fabricate allegations or
testimony. The [c]ourt determined that this speculative
evidence must be excluded because its probative value was
significantly outweighed by its likelihood to confuse the
issues and mislead the jury.
(Opinion in Support of Denial of Post-Sentence Motions, filed June 22, 2018,
at 1-2). We see no reason to disrupt the court’s analysis. See Montalvo,
supra; Stephens, supra; O’Brien, supra.
The record shows Victim was not a party to any of the proffered jailhouse
recordings. Additionally, the recordings did not indicate a plan for Victim to
fabricate allegations. To the contrary, the recordings demonstrated only that
Victim disclosed Appellant’s sexual abuse to a member of the Beck family.
The fact that William Beck believed he might receive a more lenient sentence
in his own case for providing information about Appellant’s abuse of Victim did
not mean Victim fabricated the abuse. Consequently, the recordings were not
exculpatory, and the trial court properly excluded them as speculative,
confusing, and not probative. See Pa.R.E. 403; Cook, supra.
Moreover, the jury heard testimony regarding Victim’s
friendship/relationship with David Beck, William Beck’s pending charges for
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sexually assaulting Appellant’s daughters, CYS’ warning to Victim’s mother to
keep Victim away from David Beck, and David Beck’s initial report to police of
Appellant’s sexual assaults on Victim. Thus, the jury heard other evidence to
support Appellant’s theory of fabrication but rejected that theory. Therefore,
Appellant’s first issue merits no relief.4
In his second issue, Appellant argues the Commonwealth’s proffered
evidence of prior bad acts was not substantially similar to the crimes charged
in the current case. Appellant emphasizes Victim’s allegations of anal sex at
various locations, which Appellant insists are wholly different from the
allegations of A.H. and M.V. Appellant contends his convictions involving A.H.
and M.V. are almost 20 years old. Appellant stresses the probative value of
the prior bad acts evidence was outweighed by unfair prejudice. Appellant
claims the Commonwealth’s position that the prior bad acts evidence was
particularly important to rebut Appellant’s theory of fabrication was baseless,
because the court had already precluded the jailhouse recordings. Appellant
concludes the admission of evidence of Appellant’s prior bad acts was
improper, and this Court must reverse and remand for a new trial. 5 We
____________________________________________
4Due to our disposition, we do not have to decide whether the recordings met
any hearsay exception.
5 Appellant also argues the Commonwealth conceded in its motion for
reconsideration that it sought to introduce evidence of Appellant’s prior bad
acts to show Appellant’s propensity to commit crimes. When read in its
entirety, however, the motion for reconsideration plainly sought to introduce
evidence of prior bad acts to demonstrate a common plan or scheme.
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disagree.
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 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) (en banc) (emphasis added). 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, evidence of other crimes or bad acts 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,
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127 S.Ct. 101, 166 L.Ed.2d 82 (2006). When offered for a legitimate purpose,
evidence of prior crimes or bad acts 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).
This Court has explained:
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 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, 119 A.3d 353, 358-59 (Pa.Super. 2015) (en
banc), appeal denied, 633 Pa. 787, 128 A.3d 220 (2015) (quoting
Commonwealth v. G.D.M., Sr., 926 A.2d 984, 987 (Pa.Super. 2007), appeal
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denied, 596 Pa. 715, 944 A.2d 756 (2008)). See also Commonwealth v.
Weakley, 972 A.2d 1182 (Pa.Super. 2009), appeal denied, 604 Pa. 696, 986
A.2d 150 (2009) (explaining that, in comparing methods and circumstances
of separate crimes, court must necessarily look for similarities including: (1)
manner in which crimes were committed; (2) weapons used; (3) ostensible
purpose of crime; (4) location; and (5) type of victims). “The common scheme
exception does not require that the two scenarios be identical in every
respect.” Tyson, supra at 360 n.3 (emphasis in original).
Further, 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.” Id. at 359
(quoting Commonwealth v. Aikens, 990 A.2d 1181, 1185 (Pa.Super. 2010),
appeal denied, 607 Pa. 694, 4 A.3d 157 (2010)). Significantly, time spent
incarcerated is excluded from the calculation of elapsed time between crimes.
See Commonwealth v. Rush, 538 Pa. 104, 646 A.2d 557 (1994) (excluding
defendant’s period of incarceration for remoteness analysis); O’Brien, supra
(holding defendant’s prior convictions from 1985 for similar sexual offenses
were not too remote in time from current January 1996 offenses where
defendant was incarcerated for prior offenses until April 1990; relevant
timeframe for remoteness analysis was less than six years).
Evidence of relevant prior crimes or bad acts is admissible “if the
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probative value of the evidence outweighs its potential for unfair prejudice.”
Commonwealth v. Kinard, 95 A.3d 279, 284 (Pa.Super. 2014) (en banc).
“‘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.
Tyson, supra at 360 (quoting Dillon, supra at 367, 925 A.2d at 141). Where
the Commonwealth seeks to introduce evidence of prior bad acts or other
crimes in a case based largely upon circumstantial evidence, admission of that
evidence is particularly important. Weakley, supra at 1191. Likewise, the
Commonwealth’s need to present prior bad acts evidence under the common
plan exception is greater where the victim’s credibility is undermined at trial.
See Commonwealth v. Luktisch, 680 A.2d 877 (Pa.Super. 1996) (holding
Commonwealth’s need to present prior bad acts testimony was increased after
victim’s credibility was “crippled” at trial; at that point, prior bad act testimony
became more probative than prejudicial).
“Additionally, when examining the potential for undue prejudice, a
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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 160, 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 Commonwealth charged Appellant with 158 counts of
various sex offenses in relation to numerous sexual assaults Appellant
committed on Victim between January 1, 2007 and June 30, 2016, beginning
when Victim was 12 years old. These incidents took place in Victim’s home,
Appellant’s home, Appellant’s truck, a hotel room, and in the woods. Before
each incident, Appellant isolated Victim in a private area and/or lured her
under false pretenses to take a ride in his car.
The court admitted prior bad acts evidence concerning Appellant’s prior
sexual assaults on M.V. and A.H., and the record reveals the following factual
similarities between the current offenses and those prior acts. In each case,
the victim of Appellant’s actions was an acquaintance or “friend” of Appellant.
Each victim was a young, teenage girl between the ages of 12 and 15 when
the abuse began. In each case, Appellant found ways to isolate his victim.
Appellant’s “weapon” in each case was his mind and body, which he used to
manipulate, prey on, and sexually assault the victims. The ostensible purpose
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of Appellant’s acts was sexual gratification. Thus, the nature of the victims,
the manner Appellant used to commit those acts, the “weapons” used to
commit those acts, and the ostensible purpose of the acts are nearly identical
to the present case. See Tyson, supra; Weakley, supra. Thus, the
Commonwealth’s proposed evidence was relevant to demonstrate a common
plan or scheme under Rule 404. See Pa.R.E. 404(b)(2); Tyson, supra;
G.D.M., Sr., supra.
Additionally, the prior bad acts evidence was not too remote to negate
its probative value. Appellant sexually assaulted A.H. three times between
September 1, 1999 and November 26, 1999, and sexually assaulted M.V.
twice between November 1, 1999 and January 28, 2000. Appellant’s assaults
on Victim occurred between January 1, 2007 and June 30, 2016. Importantly,
the record shows Appellant was in prison from approximately March 28, 2000
to December 4, 2006. Appellant’s assaults against Victim began within a
month of Appellant’s release from prison. Excluding Appellant’s period of
incarceration from the “look back” calculation, less than one year elapsed
between Appellant’s assaults on A.H. and M.V., and Appellant’s assaults on
Victim. Any lapse in time is certainly not “excessive” under these
circumstances. See Tyson, supra; O’Brien, supra.
Further, the probative value of the evidence of Appellant’s prior bad acts
outweighed its potential for unfair prejudice. Appellant’s prior bad acts should
not be shielded from the factfinder merely because they are harmful to
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Appellant; the question is whether evidence of his prior bad acts would be
unfairly prejudicial. See Dillon, supra; Tyson, supra. Evidence of
Appellant’s prior bad acts was particularly important in this case because the
Commonwealth’s evidence relied largely on Victim’s testimony, which
Appellant ferociously attacked at trial. The Commonwealth lacked forensic
evidence to corroborate Victim’s testimony. Appellant testified in his defense
and flatly denied all allegations, essentially leaving the jurors with a “he
said/she said” scenario. See Weakley, supra. As well, Appellant explored
the relationship between Victim and the Beck family at length at trial in an
effort to undermine Victim’s credibility and demonstrate her motive to
fabricate her allegations. See Luktisch, supra.
Moreover, the court issued a cautionary instruction to the jury regarding
the limited purpose of the evidence and clarified that the jury could not treat
the prior bad acts as proof of Appellant’s bad character or criminal tendencies.
See Hairston, supra. We can presume the jurors followed the trial court’s
instructions. See id. Under these circumstances, Appellant’s second issue
merits no relief. We see no basis to call the verdict into question. Accordingly,
we affirm.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/25/2019
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