Com. v. Lynn, A.

J-S43045-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
ADAM J. LYNN :
:
Appellee : No. 451 WDA 2020

Appeal from the Order Entered March 4, 2020
In the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0001723-2019

BEFORE: SHOGAN, J., STABILE, J., and KING, J.

MEMORANDUM BY KING, J.: FILED FEBRUARY 04, 2021

Appellant, the Commonwealth of Pennsylvania, appeals from the order

entered in the Mercer County Court of Common Pleas, which granted the

motion in limine of Appellee, Adam J. Lynn, to exclude certain evidence at

trial.1 We affirm.

The trial court accurately set forth the facts and procedural history of

this appeal as follows:

Appellee…is charged by way of a Criminal Information filed
on November 25, 2019 with the following crimes: Count 1—
Aggravated Indecent Assault under 18 Pa.C.S.A. § 3125(b),
Count 2—Aggravated Indecent Assault under 18 Pa.C.S.A.
____________________________________________

1 The Commonwealth certified in its notice of appeal that the trial court’s ruling
would substantially handicap the prosecution. See Pa.R.A.P. 311(d) (stating:
“In a criminal case, under the circumstances provided by law, the
Commonwealth may take an appeal as of right from an order that does not
end the entire case where the Commonwealth certifies in the notice of appeal
that the order will terminate or substantially handicap the prosecution”).
J-S43045-20

§ 3125(b), Count 3—Unlawful Contact with Minor under 18
Pa.C.S.A. § 6318(a)(1), and Count 4—Indecent Assault
under 18 Pa.C.S.A. § 3126(a)(7). All charges relate to the
same alleged victim with the initials T.R. who was between
the ages of seven and nine at the time of the alleged crimes.
It is alleged that [Appellee] digitally penetrated the alleged
victim’s vagina without consent; Count 2 alleges the he did
so while the alleged victim was unconscious (meaning in this
case that she was asleep) or unaware, and Count 4 alleges
that [Appellee] put his hand down the inside of the alleged
victim’s shorts and/or touched her vagina.

[Appellee] pled guilty in 2000 to Aggravated Indecent
Assault of a ten-year-old under 18 Pa.C.S.A. § 3125(a)(7)
and was sentenced to two to ten years of incarceration.

On December 18, 2019, [Appellee] filed an Omnibus Pre-
Trial Motion for Relief including a Motion to Suppress two
recorded interviews between [Appellee] and Sergeant
Detective Marc-Anthony Adamo of the Sharon, Pennsylvania
Police Department. On January 10, 2020, [Appellee] filed a
Motion in Limine seeking to preclude the Commonwealth
from introducing certain evidence at trial, including evidence
of the 2000 conviction, the resulting sexual offender
registration requirements, and an allusion to the prior
conviction by [Appellee] during one or both of the recorded
interviews.1 [Appellee] requested that the Commonwealth
be ordered to redact references to said evidence to the
extent it is permitted to play the recorded police interviews
at trial. A hearing was held on both the omnibus motion
and the motion in limine on February 4, 2020. The
Commonwealth presented testimony from Detective Adamo
which was mostly relevant to the suppression issue. The
Commonwealth also introduced recordings on a disc of both
of the aforementioned police interviews, which took place
on July 4, 2019 and July 24, 2019. To allow the [c]ourt to
listen to the approximately three hours of combined
recordings, the [c]ourt continued the hearing.

1 [Appellee] stated words to the effect that he would
not be alone with children so as to avoid something
like this happening again.

On February 11, 2020, the Commonwealth filed its

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Notification of Commonwealth’s Intention to Present
Evidence Pursuant to Pa.R.E. 404(B). This Notice concerned
the same evidence that [Appellee] sought to exclude by way
of his motion in limine. [Appellee] then filed a Second
Motion In Limine on February 18, 2020 which was more in
the nature of a response to the Commonwealth’s Notice than
a separate motion. The hearing on [Appellee’s] motions
resumed on March 3, 2020.

On that second day, [Appellee] withdrew his suppression
motion.2 The [c]ourt heard oral argument on the motions
in limine and the Commonwealth’s Notice and then took the
matter under advisement. …

2 Also, the Commonwealth agreed that evidence of
[Appellee’s] refusal to undergo a polygraph
examination should be excluded at trial.

(Trial Court Opinion, filed May 29, 2020, at 1-3).

In describing the facts underlying Appellee’s prior conviction versus the

facts of the current case, the trial court explained:

[Appellee] gave a written confession concerning his prior
conviction which is included among the materials attached
to the Commonwealth’s Notice of Intent to present 404(b)
evidence. The entire confession reads:

I agreed to allow (the victim) to swim in the deep end
of the pool if she did something for me in return. At
first I asked of her not to say anything because she
should not have been swimming there. Then as we
were exiting through the back room of the pool area
she consented to allow me to remove her bathing suit.
I touched her vagina area and she said she was scared
and I told her to put it back on. She did and I exposed
my penis to her and asked her to consent to oral sex
and she would not. So I allowed her to leave. As she
left I apologized to her for upsetting her.

According to the police report, [Appellee] was working as a
lifeguard. The victim was a ten-year-old white female.
[Appellee]…was 18 years old. The victim had been

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swimming with three friends but they left and she was
alone. The victim asked [Appellee] if she could swim in the
deep end and he said she could but she would “owe him a
favor.” The area where the illicit touching occurred was in
a “utility room.” [Appellee] “led” the victim there. The
crime occurred during the evening hours (approximately
9:30 p.m.). [Appellee] told the victim to close her eyes
before he removed her bathing suit. The victim told
[Appellee] to stop after he began touching her “pubic area.”
When [Appellee] exposed his penis to the victim, he asked
her to “suck it like a [lollipop]” or words to that effect. The
victim ran away and to her father’s home. The date of the
offense was May 15, 2000. The victim’s older sister knew
[Appellee].

The alleged facts of the instant case as related on page 2 of
the Affidavit of Probable Cause are as follows:

When asked (during an interview at the Mercer County
Children’s Advocacy Center) why she was there (the
alleged victim) stated because he touched me. When
Derek Stotsky (the interviewer) questioned (the
alleged victim) about what she meant[,] (the alleged
victim) stated that…[Appellee] touched her in her
vaginal area on several occasions both at the address
located at (redacted) and (redacted). (The alleged
victim) stated that the incidents started back in 2017
and continued through into 2018. (The alleged
victim) stated that [Appellee] had penetrated her
vaginally with his fingers, stating that his [fingers]
were…inside of her. (The alleged victim) stated that
he would do this while she was lying in bed [asleep]
with other children and other family members. When
the interview was completed the Mercer County CYS
caseworker and (Detective Adamo) made contact with
(the alleged victim) and her mother. At this time (the
mother) advised that she had caught [Appellee] in
their room on two occasions. Both occasions were
when they were residing at (redacted). She further
advised that she awoke to him ([Appellee]) in the
room standing over them as they slept in the bed.

Detective Adamo’s recorded interviews of [Appellee]
provide further details, including information about the

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redacted addresses. [Appellee] explained that he resided at
both addresses during different periods along with his
girlfriend and his own children. The alleged victim and her
mother lived with [Appellee] and his family for a while and
they (the alleged victim and her mother) slept together in
one room. At least one incident of sexual abuse is alleged
to have occurred at that residence. When [Appellee] and
his family lived at the other residence, the alleged victim
would sometimes come to stay the night. On these
occasions she would sleep in a room with [Appellee’s] own
children. According to [Appellee], this is where any
accidental contact with the alleged victim occurred. At least
one incident of sexual abuse is alleged to have occurred at
that residence.

(Id. at 15-16).

On March 4, 2020, the trial court granted Appellee’s motion in limine as

to evidence of the prior conviction, resulting registration requirements, and

Appellee’s statements alluding to the prior conviction. Nevertheless, the court

stated that its order was without prejudice insofar as “the Commonwealth may

request that the [c]ourt revisit any of its rulings in light of evidence presented

at trial, including especially the possibility that [Appellee] will open the door

to the introduction of evidence which this [c]ourt has otherwise ruled

inadmissible.” (Order, 3/4/20, at 2; R.R. at 135a). The Commonwealth timely

filed a notice of appeal on April 1, 2020. That same day, the court ordered

the Commonwealth to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b). The Commonwealth timely complied

on April 16, 2020.

The Commonwealth raises the following issues for our review:

Whether the trial court erred in granting Appellee’s motion

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in limine and precluding the Commonwealth from utilizing
Appellee’s guilty plea of aggravated indecent assault on
October 3, 2000 and its factual details pursuant to the
notification of Commonwealth’s intention to present
evidence of other crimes, wrongs, or acts pursuant to
Pennsylvania Rule of Evidence 404(b)?

Whether the trial court erred in granting Appellee’s motion
in limine and precluding the Commonwealth from utilizing
Appellee’s statements made to police officers on July 24,
2019 regarding that fact that he is “very cautious to not be
around children without someone else being there so that
this cannot happen,” referring to the incident underlying
[Appellee’s] October 3, 2000 aggravated indecent assault
guilty plea?

Whether the trial court erred in granting Appellee’s motion
in limine and precluding the Commonwealth from utilizing
Appellee’s statements made to police officers on July 4,
2019 regarding his [sex offender] registration requirements
and compliance?

(Commonwealth’s Brief at 5).

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),

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

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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 its first issue, the Commonwealth argues that Appellee’s prior

conviction for aggravated indecent assault and the facts underlying that

conviction are admissible under Rule 404(b) to show Appellee engaged in a

“common plan or scheme.” The Commonwealth asserts the facts of this case

and the facts surrounding Appellee’s 2000 conviction demonstrate acts

distinctive and so nearly identical as to become Appellee’s “signature.”

Specifically, the Commonwealth claims the victims in both assaults were

approximately the same age, ethnicity, and acquainted with Appellee (as

opposed to related) through legitimate initial encounters. In both scenarios,

the Commonwealth maintains that Appellee was an authority figure, who

digitally penetrated each victim’s vagina and manipulated each victim’s

clothing. The Commonwealth insists the facts of both cases show Appellee

has a specific predatory preference toward pre-pubescent, non-relative, white

females, over whom Appellee can assert his authority. The Commonwealth

submits the facts of both cases reveal Appellee’s common plan and scheme to

target particular types of victims and perform acts on them for his own sexual

gratification.

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The Commonwealth also argues the facts of Appellee’s prior conviction

prove the “absence of mistake” in this case. The Commonwealth asserts that

during Appellee’s interview with Detective Adamo on July 24, 2019, Appellee

admitted that he might have mistakenly touched T.R., but that he did not

believe it was in the vaginal area. The Commonwealth insists Appellee might

try to proffer this “mistake” defense at trial. The Commonwealth contends

the facts surrounding Appellee’s prior conviction will demonstrate the

improbability that Appellee “mistakenly” touched T.R., in light of Appellee’s

prior guilty plea to digitally penetrating the vagina of a another minor, female

victim. The Commonwealth maintains Appellee has put the “mistake” defense

at issue, so the Commonwealth is entitled to prove the absence of any

mistake. Relatedly, the Commonwealth submits that Appellee’s prior

conviction and the facts underlying that conviction are admissible under Rule

404(b) to prove Appellee’s intent in this case. The Commonwealth claims

Appellee placed his intent at issue when he told Detective Adamo that he might

have accidentally touched T.R.

The Commonwealth further stresses that its need to present evidence

of Appellee’s prior conviction is great because there is no physical evidence,

such as a rape kit, to prove T.R.’s allegations. The Commonwealth highlights

that no one else witnessed Appellee’s alleged assault on T.R., so the

Commonwealth’s case relies heavily on the testimony of a minor victim. The

Commonwealth emphasizes that Appellee tried to discredit T.R. in his

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conversations with police by stating T.R. is a drug user and part of a family

with a criminal background. The Commonwealth anticipates that Appellee will

similarly try to discredit T.R. at trial. The Commonwealth also points out that

T.R. delayed reporting Appellee’s sexual assault for one year. The

Commonwealth suggests that T.R.’s delayed reporting, coupled with the lack

of physical evidence and eyewitness testimony, shows the Commonwealth’s

need to present evidence of Appellee’s prior conviction is great.

Although the Commonwealth concedes Appellee’s prior conviction is

from 2000, the Commonwealth contends that when conducting a remoteness

analysis, this Court must exclude the time during which Appellee was

incarcerated for the prior conviction. Because Appellee was incarcerated until

2006 for his prior conviction, the Commonwealth submits the prior conviction

is only 11 or 12 years old, and not 17 or 18 years old, for purposes of the

relevant analysis. The Commonwealth concludes the trial court erred by

excluding evidence of Appellee’s prior conviction, and this Court must reverse.

We 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.

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(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). 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, 127 S.Ct. 101, 166

L.Ed.2d 82 (2006).

Importantly, “[w]hile Rule 404(b)(1) gives way to recognized

exceptions, the exceptions cannot be stretched in ways that effectively

eradicate the rule. … To preserve the purpose of Rule 404(b)(1), more

must be required to establish an exception to the rule—namely a close

factual nexus sufficient to demonstrate the connective relevance of

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the prior bad acts to the crime in question[.]” Commonwealth v. Sami,

___ A.3d ____, 2020 WL 7584956 at *6, 2020 PA Super 294 (Pa.Super. filed

Dec. 22, 2020) (emphasis in original) (internal citations omitted).

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) (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)). See

also Commonwealth v. Weakley, 972 A.2d 1182 (Pa.Super. 2009), appeal

denied, 604 Pa. 696, 986 A.2d 150 (2009) (explaining courts must look for

similarities in number of factors when comparing methods and circumstances

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of separate crimes, 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) (reversing trial court’s exclusion of defendant’s prior rape conviction

in case charging defendant with rape and related sex offenses; evidence of

prior rape conviction was admissible under common plan or scheme exception

where facts of prior conviction and facts of current case showed defendant

was invited guest in each victim’s home, was cognizant of each victim’s

compromised state, and had vaginal intercourse with each victim while victim

was unconscious; differences between incidents concerned details which were

not essential to alleged common scheme). 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)). 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); O’Brien, supra.

When offered for a legitimate purpose, evidence of prior crimes or bad

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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, 574 U.S. 863, 135 S.Ct. 164, 190 L.Ed.2d 118 (2014). “‘[U]nfair

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.” Id. at 159, 84 A.3d at 666 (quoting Pa.R.E. 403, Comment).

Where the Commonwealth seeks to introduce evidence of prior bad acts or

other crimes in a case based largely upon circumstantial evidence, admission

of such evidence is particularly important. Weakley, supra at 1191.

This Court has stated:

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 (internal citation omitted). “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 160,

84 A.3d at 666.

Instantly, the trial court analyzed the Commonwealth’s first issue on

appeal as follows:

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It is necessary to clarify what exactly [Appellee] stated
concerning any accidental contact with the alleged victim.
The recording shows that [Appellee] stated that he may
have accidentally come into contact with the alleged victim
when [Appellee] said goodbye to his own children in the
morning before leaving for work. [Appellee’s] children slept
in close proximity to the alleged victim. However,
[Appellee] subsequently denied that any such contact was
indecent. This is memorialized in Detective Adamo’s
Affidavit of Probable Cause on page 3 where it reads: “(a)s
the recorded interview progressed [Appellee] continued to
make admissions escalating to the point where he stated
that he may have inadvertently touched the juvenile victim.
[Appellee] eventually made admissions that he
inadvertently touched the juvenile victim but didn’t believe
it was in her genital area.”9 [Appellee] never admitted in
either of his lengthy recorded interviews to having touched
the alleged victim indecently, meaning touching her genitals
or another private area, either accidentally or willfully.
[Appellee’s] statements do not lend themselves to a defense
involving the mens rea elements of his alleged crimes. This
gravitates against admitting the proffered 404(b) evidence
to prove motive, intent, knowledge, lack of consent,
absence of mistake or accident, or the other permissible
purposes to the extent those purposes relate to [Appellee]
having a culpable state of mind. Likewise, the fact that the
alleged victim knew [Appellee], and even lived with him for
a time, cuts against a defense based on mistaken identity
of the perpetrator.

9 Although Detective Adamo’s Affidavit is accurate as
far as what was said, the [c]ourt carefully reviewed
the point at which [Appellee] stated that he didn’t
believe he touched the alleged victim’s genitals. The
tone is one of denial and not one of ambivalence.

This [c]ourt also considered whether the 404(b) evidence
should be admitted to prove the actus reus of the alleged
crimes, i.e., indecent touching and penetration. In this
light, the most relevant permissible purpose for admitting
the evidence is to prove a common scheme, plan, or modus
operandi. For the relevant 404(b) evidence to be admissible
for this purpose, there must be such a degree of similarity
between [Appellee’s] prior conviction and the instant

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allegations that the purported commonality is so probative
as to outweigh the resulting prejudice. There are some
obvious similarities but there are some substantial
differences also.

The crimes alleged in the instant case are the same or of
the same class as the crime to which [Appellee] pled guilty
in the prior case. Thus, both cases involve digital
touching/penetration of the victim’s vagina. The victims in
both cases are white females of approximately the same age
(from seven to ten years old). However, the details and
circumstances of the two cases are markedly different. In
the prior case, [Appellee] chose a victim with whom he had
no apparent familial connection. In the instant case,
[Appellee] allegedly chose his girlfriend’s niece. In the prior
case, the situs of the crime was a swimming pool apparently
open to the public, and then a utility room nearby. In the
instant case, the situs was allegedly two different residences
where [Appellee] lived, and in the case of one of the
residences, where the alleged victim lived with her mother
for a while. In the prior case, [Appellee] lured the victim to
a secluded area. In the instant case, [Appellee] allegedly
went to a room where he knew the alleged victim would be
along with one or more individuals. In the prior case,
[Appellee] exerted his authority over the victim as a
lifeguard to induce her into a vulnerable position. In the
instant case, it does not appear that [Appellee] spoke to the
alleged victim around the time of her alleged victimization.
In the prior case, the victim was conscious throughout her
interaction with [Appellee]. In the instant case, it is alleged
that the victim was asleep during at least some of the time
that [Appellee] touched her inappropriately. Also, in the
prior case, [Appellee] had barely reached the age of
majority. He was approximately 18 years and 7 months old.
[Appellee’s] one prior case from long ago, involving
dissimilar facts, when combined with the instant case, does
not amount to a pattern.

* * *

The [c]ourt is concerned that sexual preferences are distinct
from a pattern of actions, even if those actions are inspired
by said preferences, and admitting evidence to establish
sexual preferences would necessarily suggest an improper

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inference under Pa.R.E. 404(b)(1) that [Appellee] acted in
conformity with his bad character/nature.

This is also relevant to the question of whether the potential
prejudicial impact of the Commonwealth’s proffered 404(b)
evidence would outweigh its probative value. The case law
is clear that evidence of prior crimes/acts is not inadmissible
merely because the underlying acts are repulsive. However,
where the probative value of the evidence is diminished
because of remoteness in time or dissimilarity to the
crimes/acts being tried, then the inevitable effect on the
jury of hearing about such repulsive acts and potentially
misapplying the evidence in the way contemplated under
404(b)(1) is comparatively stronger. This is true despite
the jury instruction that this [c]ourt would have to give if
404(b) evidence were to be admitted at trial.10

10The [c]ourt cannot be clear on what exact form that
instruction would take because the Commonwealth is
arguing that its proffered 404(b) evidence is
admissible under all of the exceptions in Pa.R.E.
404(b)(2).[2]

(Trial Court Opinion at 17-20).

As the trial court acknowledged, the facts of Appellee’s prior conviction

concerned an isolated incident in the utility room of a public swimming pool,

where Appellee was a lifeguard, and while the victim was awake. The facts of

the current case involve allegations of multiple offenses over a period of years,

in a bedroom the victim shared with others, while the victim was allegedly

asleep. Although the facts of this case and those surrounding Appellee’s prior

conviction share some general commonalities, we cannot agree with the

____________________________________________

2On appeal, the Commonwealth has abandoned its claim that evidence of
Appellee’s prior conviction is admissible to establish motive.

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Commonwealth that the facts are so similar as to be the “signature” of

Appellee necessary to satisfy the common plan or scheme exception. See

Tyson, supra at 360 (explaining factual overlap between two incidents must

go beyond commission of crimes or conduct “of the same general class” or

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

cases). Even excluding the time Appellee spent incarcerated for the prior

conviction, Appellee’s prior conviction is still 11 or 12 years old. See Rush,

supra.

Additionally, given our deferential standard of review, we accept the trial

court’s reasoning that the Commonwealth failed to demonstrate the proffered

evidence satisfies the intent or absence of mistake exceptions. Although the

Commonwealth claims Appellee alleged a mistaken or accidental touching of

T.R., the trial court had the opportunity to listen to the approximately three

hours of recorded interviews, and it classified Appellee’s statements as a

denial, rather than an assertion of mistake. Under these circumstances, we

cannot say the trial court abused its discretion in excluding evidence of

Appellee’s prior conviction. See Montalvo, supra; O’Brien, supra. Thus,

the Commonwealth’s first issue on appeal merits no relief.

In its second issue, the Commonwealth argues that during one of

Appellee’s interviews, he stated that he is “very cautious to not be around

children without someone else being there so that this cannot happen.”

(Commonwealth’s Brief at 31). The Commonwealth asserts this statement

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can be reasonably interpreted to mean that Appellee does not stay alone with

children, to reduce the likelihood that he will perform an act on a child similar

to the act he performed on the victim of his 2000 conviction. The

Commonwealth claims Appellee’s statement evidences his consciousness of

guilt and provides insight into Appellee’s mindset and intent to avoid being

caught in another situation involving a sex offense against a minor.

The Commonwealth further contends Appellee’s statement falls within

the “res gestae” exception to show the natural development and history of

this case. The Commonwealth claims Appellee’s statement would allow the

“jury to understand the dynamic of Appellee’s relationship with the children in

[his] household and why it [might] have been inappropriate for T.R.’s mother

to observe Appellee in T.R.’s bedroom on at least two occasions.” (Id. at 33).

The Commonwealth maintains Appellee’s statement gives the jury a complete

story of the case, especially when linked with testimony from T.R.’s mother

that she observed Appellee in T.R.’s bedroom. The Commonwealth insists

Appellee’s statement is not overly prejudicial because it can be interpreted in

different ways and is not conclusive evidence of guilt. The Commonwealth

concludes the trial court erred by excluding evidence of Appellee’s statement

to police, and this Court must reverse. We disagree.

“[O]ur courts will allow evidence of prior bad acts where the distinct

crime or bad act was part of a chain or sequence of events which formed the

history of the case and was part of its natural development.”

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Commonwealth v. Drumheller, 570 Pa. 117, 137, 808 A.2d 893, 905

(2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2284, 156 L.Ed.2d 137 (2003).

The “complete story” rationale, also known as the res gestae exception, is

admissible “to complete the story of the crime on trial by proving its immediate

context of happenings near in time and place.” Commonwealth v. Brown,

52 A.3d 320, 326 (Pa.Super. 2012), appeal denied, 619 Pa. 676, 62 A.3d 377

(2013) (internal citation omitted).

“Where the res gestae exception is applicable, the trial court must

balance the probative value of such evidence against its prejudicial impact.”

Id. “[T]he history of the res gestae exception demonstrates that it is properly

invoked when the bad acts are part of the same transaction involving the

charged crime.” Id. at 332. See also Drumheller, supra (holding admission

of victim’s prior protection from abuse petitions against appellant was proper

to demonstrate continual and escalating nature of appellant’s abuse).

“Evidence of prior bad acts may also be introduced to prove consciousness of

guilt, i.e., that the defendant was aware of his wrongdoing.” Commonwealth

v. Ivy, 146 A.3d 241, 251 (Pa.Super. 2016).

Instantly, the trial court addressed this issue as follows:

The Commonwealth argued that [Appellee’s] statement that
he would not be alone with children because he did not want
anything like this to happen again (or similar language) is a
subtle indication of [Appellee’s] consciousness of guilt. This
is illogical in the context of the hours of recorded interviews
that the [c]ourt listened to during which [Appellee]
maintained that nothing inappropriate happened that could
be construed as “this” happening “again.” Detective Adamo

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did not appear to assign the significance to this statement
that the Commonwealth now attributes to it. His Affidavit
of Probable Cause does reference the statement on page 3
where it states: “[Appellee] stated that he is never alone
with children, not even his own kids because he did [not]
want…anything like this to ever happen again.” The
apparent meaning of the statement is that [Appellee] took
steps to avoid being accused or was attempting to convince
Detective Adamo that he had [been] and thus is being
falsely accused. This [c]ourt might normally allow the
Commonwealth to attempt to spin such a statement at trial
but the reference to the prior conviction makes the
statement inadmissible for the reasons stated above unless
[Appellee] opens the door at trial.

(Trial Court Opinion at 21-22). We see no reason to disrupt the court’s

conclusion that Appellee’s statement to Detective Adamo was insufficient to

prove Appellee’s “consciousness of guilt.” See Ivy, supra. See also

Montalvo, supra; O’Brien, supra.

Further, we cannot agree with the Commonwealth that Appellee’s

statement is crucial to providing the jury a “complete story” of the case

necessary to satisfy the res gestae exception. See Brown, supra. Further,

given that the statement is subject to multiple interpretations, its prejudicial

effect outweighs its probative value. See id. See also Pa.R.E. 403 (stating

that trial court may exclude relevant evidence if its probative value is

outweighed by danger of unfair prejudice, confusing issues, misleading jury,

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

Therefore, the Commonwealth’s second issue on appeal merits no relief.

In its third issue, the Commonwealth argues Appellee’s statements

during police interviews concerning his sex offender reporting requirements

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are admissible under the res gestae exception. The Commonwealth asserts

these statements provide the jury with a complete story of the case. Because

the reporting requirements arise out of Appellee’s 2000 conviction, the

Commonwealth contends this evidence goes “hand-in-hand” with evidence of

Appellee’s prior conviction. The Commonwealth maintains that Appellee’s

interview with Detective Adamo was premised on Appellee discussing his

reporting requirements. Absent admission of such evidence, the

Commonwealth claims the jury will not understand the context and pretenses

under which Appellee agreed to participate in an interview with police. The

Commonwealth again reiterates its earlier arguments about why its need for

such evidence is great. The Commonwealth concludes the trial court erred by

excluding Appellee’s statements regarding his reporting requirements, and

this Court should reverse. We disagree.

Initially, we observe that the Commonwealth cites no law to support its

position that evidence of a defendant’s sex offender registration requirements

is admissible under Rule 404(b) or the res gestae exception. Likewise, at the

March 3, 2020 hearing, the Commonwealth conceded it could not cite any

authority regarding admission of a defendant’s sex offender reporting

requirements in this context. At the hearing, defense counsel argued that

Appellee’s registration requirements are irrelevant, prejudicial, and do not

constitute proper Rule 404(b) evidence because Appellee’s reporting

requirements are not a “prior bad act” but a “required act” resulting from

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Appellee’s prior conviction.

Although the Commonwealth argued the applicability of the res gestae

exception at the hearing, it also conceded that evidence of Appellee’s

registration requirements “makes more sense if the other two issues that

remain do come in” to fulfill “the whole hue of the case and the discussions

between Detective Adamo and [Appellee].” (N.T. Hearing, 3/3/20, at 9; R.R.

at 58a). Without admission of its other proffered evidence, the

Commonwealth admitted that its attempt to introduce evidence of Appellee’s

registration requirements was the “weakest” of the Commonwealth’s proposed

Rule 404(b) evidence.

In excluding evidence of Appellee’s reporting requirements, the trial

court explained that it was unable to uncover any authority to support the

Commonwealth’s position that Appellee’s sex offender registration

requirements would be admissible under Rule 404(b)(2). Further, the court

continued: “it would be illogical for the [c]ourt to exclude evidence of the

underlying conviction but permit evidence of the resulting registration

requirements, especially because such evidence would be equally prejudicial.”

(Trial Court Opinion at 21).

In light of the lack of supporting authority from the Commonwealth, and

our decision that the trial court’s rulings on the Commonwealth’s first two

issues did not constitute an abuse of discretion, we see no reason to disturb

the court’s exclusion of statements about Appellee’s sex offender reporting

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requirements. See Montalvo, supra; O’Brien, supra. See also

Commonwealth v. Einhorn, 911 A.2d 960 (Pa.Super. 2006), appeal denied,

591 Pa. 723, 920 A.2d 831 (2007) (reiterating that appellate brief must

provide citations to relevant supporting authority; this Court will not become

counsel for appellant or consider issues not fully developed in brief).

Further, the record shows that although police were aware of T.R.’s

allegations against Appellee, Detective Adamo asked Appellee to come in and

follow-up on a recent compliance check concerning Appellee’s sex offender

registration requirements. Appellee agreed to speak with Detective Adamo,

which occurred on July 4, 2019. At that time, Appellee and Detective Adamo

discussed Appellee’s registration requirements. During the interview,

Appellee disclosed that there were other sex offense allegations against him.

Police subsequently set up a follow-up interview to discuss T.R.’s allegations

against Appellee. While the discussion about Appellee’s reporting

requirements explains why Appellee initially met with police in this case, we

do not see how this discussion is critical to providing the “complete story” in

this case necessary to satisfy the res gestae exception. See Brown, supra.

Compare Drumheller, supra. In any event, the prejudicial impact of such

evidence would far outweigh its probative value. See Brown, supra. Thus,

the Commonwealth’s third issue merits no relief. Accordingly, we affirm.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/04/2021

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