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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                         Appellant      :
                                        :
                    v.                  :         No. 1260 EDA 2015
                                        :
JEROME McNEILL                          :


                  Appeal from the Order Entered April 6, 2015,
             in the Court of Common Pleas of Montgomery County
               Criminal Division at No. CP-46-CR-0007632-2014


BEFORE: FORD ELLIOTT, P.J.E., DUBOW AND JENKINS, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:           FILED SEPTEMBER 28, 2016

        The Commonwealth appeals from the April 6, 2015 order entered in

the Court of Common Pleas of Montgomery County that denied its motion

in limine to admit other bad acts pursuant to Pa.R.E. 404(b). 1 After careful

review, we reverse.

        The record reflects that on or about July 30, 2014, police arrested

appellee, Jerome McNeill, and charged him with one count of indecent

assault without consent of other.2     Appellee’s arrest stemmed from an

incident that allegedly occurred on July 15, 2014, during the course of

appellee’s employment as a massage therapist at Hand and Stone Massage.


1
  We grant appellee Jerome McNeil’s motion for extension to file brief and
that brief be considered timely.
2
    18 Pa.C.S.A. § 3126(a)(1).
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On that day, appellee was rendering massage services to the male victim.

This was the fifth or sixth massage that appellee had performed on the

victim.    During the massage, the victim was wearing underwear.       While

appellee was massaging the victim’s upper thighs, appellee reached up

inside the victim’s underwear and took hold of his penis without the victim’s

consent.     The victim told appellee to stop.       Appellee stopped and

subsequently told the victim that he was “sorry for any misunderstandings.”

(Commonwealth’s motion in limine, 2/23/15 at 1, ¶ 2; see also notes of

testimony, 4/2/15 at 4.)   The record further reflects that throughout the

massage, appellee asked the victim if the victim was comfortable with what

was going on. (Notes of testimony, 4/2/15 at 4.)

      Prior to trial, the Commonwealth filed its motion in limine to admit

three prior bad acts under the absence of mistake or accident and common

plan, scheme, or design exceptions to the general rule precluding the

admissibility of prior bad acts under Pa.R.E. 404(b).        The trial court

subsequently heard oral argument on that motion.

      With respect to the first bad act, the Commonwealth alleged that on

April 24, 2014, appellee inappropriately touched a woman’s genital area

while massaging her at Hand and Stone Massage.         (Notes of testimony,

4/2/15 at 5.) The woman reported the incident to appellee’s superiors who

then wrote a formal letter to appellee acknowledging the woman’s claim.




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Five days after this incident, Hand and Stone Massage provided appellee

with training on proper massage techniques. (Id.)

      With respect to the second bad act, the Commonwealth alleged that on

July 11, 2014, just four days before the alleged assault giving rise to this

appeal, a female client complained to the manager of Hand and Stone

Massage that while appellee massaged her upper thigh, he digitally

contacted her genitalia. After the woman rebuffed appellee, he apologized

for the “misunderstanding.” (Motion in limine, 2/23/15 at 2, ¶ 3; notes of

testimony, 4/2/15 at 5-6.)     The record further reflects that the incident

occurred during the third massage appellee performed on this particular

individual.   Additionally, as a result of this woman’s complaint, Hand and

Stone Massage subsequently terminated appellee’s employment. (Notes of

testimony, 4/2/15 at 15.)

      The final bad act allegedly occurred on October 16, 2014, in a

Philadelphia hotel where appellee was working as a massage therapist

following his termination from Hand and Stone Massage.          During this

incident, appellee was massaging a female client’s upper thighs when he

digitally contacted her genitalia and proceeded to digitally penetrate her.

This woman reported the incident to Philadelphia police, and police arrested

appellee. (Id.; see also motion in limine at 2, ¶ 4.)

      In its motion, the Commonwealth also alleged that the indecent

assault of the male victim and the three prior bad acts all occurred in the



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confines of a massage room while appellee, in his role as a massage

therapist and alone with each paying client, rendered massage services.

(Commonwealth’s supplemental memorandum of law, 4/2/15 at 3-4.)

        Following oral argument, the trial court denied the Commonwealth’s

motion in limine. This timely appeal followed.

        The Commonwealth raises the following issue for our review:

               Whether the lower court abused its discretion in
               denying the Commonwealth’s motion in limine to
               admit other act evidence pertaining to three other
               instances in which [appellee] inappropriately touched
               a paying customer while working as a massage
               therapist, where the evidence was admissible to
               establish an absence of mistake or accident and a
               common plan, scheme, or design?

Commonwealth’s brief at 5.

        Preliminarily, we note that because the Commonwealth appeals from a

pretrial order denying its motion in limine, its notice of appeal must contain

a certification that the order will terminate or substantially handicap the

prosecution. Pa.R.A.P. 311(d). See Commonwealth v. Gordon, 673 A.2d

866, 868 (Pa. 1996) (holding that denial of a motion in limine to admit

evidence falls within the judicially established rule that the Commonwealth

may appeal pretrial orders that substantially handicap the prosecution).

Here,    the   Commonwealth      complied      with    this   requirement,      and   the

certification transforms an otherwise unappealable interlocutory order into

an   appealable     one.    Therefore,    we    will   review    the   merits    of   the

Commonwealth’s claim.


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      “On appeals challenging an evidentiary ruling of the trial court, our

standard of review is limited.    A trial court’s decision will not be reversed

absent a clear abuse of discretion.” Commonwealth v. Aikens, 990 A.2d

1181, 1184 (Pa.Super. 2010) (citations omitted). “Abuse of discretion is not

merely an error of judgment, but rather where the judgment is manifestly

unreasonable or where the law is not applied or where the record shows that

the action is a result of partiality, prejudice, bias or ill will.”   Id. at 1184-

1185 (citations omitted).

                  Generally, evidence of prior bad acts or
            unrelated criminal activity is inadmissible to show
            that a defendant acted in conformity with those past
            acts    or    to     show     criminal    propensity.
            Pa.R.E. 404(b)(1). However, evidence of prior bad
            acts may be admissible when offered to prove some
            other relevant fact, such as motive, opportunity,
            intent, preparation, plan, knowledge, identity, and
            absence of mistake or accident. Pa.R.E. 404(b)(2).[3]

3
            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,


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            In determining whether evidence of other prior bad
            acts is admissible, the trial court is obliged to
            balance the probative value of such evidence against
            its prejudicial impact.

Id. at 1185 (citations to case law omitted).

      Although often referred to as “prior” bad acts, subsequent bad acts are

also admissible under the exception. See Commonwealth v. Wattley, 880

A.2d 682, 687 (Pa.Super. 2005) (reiterating that although evidence of a

subsequent offense is usually less probative of intent than evidence of a

prior offense, evidence of a subsequent offense can still demonstrate

defendant’s intent at the time of the prior offense).


      Here, the trial court precluded the Commonwealth from introducing

the other bad acts evidence under the absence of mistake exception based

on language in this court’s opinion in Commonwealth v. Ross, 57 A.3d 85

(Pa.Super. 2012) (en banc), appeal denied, 72 A.3d 603 (Pa. 2013).

Specifically, the trial court cites Ross for the proposition that this court




                         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).


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“determined that prior bad acts testimony should not be permitted with

regard to intent when a defendant does not raise the affirmative defense of

accident or mistake.” (Trial court opinion, 9/18/15 at 8, citing to Ross, 57

A.3d at 101.) In a footnote, the trial court acknowledges that our supreme

court “reject[ed] the notion that proof of absence of accident is admissible

only for responsive purposes at least in a homicide prosecution where the

victim is unavailable” in Commonwealth v. Boczkowski, 846 A.2d 75, 88

(Pa. 2004). (Trial court opinion, 9/18/15 at 8.)

      We begin our analysis with a brief summary of Ross.       In that case,

police charged the defendant with first-degree murder and related crimes in

connection with the sexual assault and murder of Tina Miller. Ross, 57 A.3d

at 87. Miller’s body was found face down in a lake partially immersed in the

water, clad only in a shirt, a dark sweater, and knee-high boots.     Miller’s

hands were duct-taped behind her back, and additional duct tape was

around her head, mouth, and arms.          Dr. Saralee Funke, the forensic

pathologist who performed Miller’s autopsy, concluded that Miller died of a

combination of drowning and strangulation. Id. at 88. Injuries to Miller’s

body included various abrasions on the legs, buttocks, arms, and face; an

abrasion on the right cheek consistent with a blow to the face; and pattern

marks on the left breast consistent with a bite.   Additionally, Miller’s anus

and vagina were “massively traumatized.”       Dr. Funke opined that these




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particular injuries were likely inflicted through the use of “a significant

amount of force” with a foreign object. Id.

      The trial court permitted the Commonwealth to introduce the

testimony of three of defendant’s former girlfriends to prove, among other

things, defendant’s intent to kill Tina Miller. Id. at 99. Each woman testified

to various acts of violence that defendant committed against her, including

sexual violence. Two of the women testified that defendant had used foreign

objects on her during sex. Id. at 99-100.

      On direct appeal, defendant claimed, among other things, that the trial

court abused its discretion by admitting the other bad acts evidence to prove

intent to kill Miller.   This court, sitting en banc, agreed, concluding that

intent was not an issue in the case because intent to kill Miller could be

inferred under the circumstances. Id. at 100. This court stated:

             Given the circumstances surrounding Miller’s murder,
             including the mutilation of the body, the use of duct
             tape, and the bite mark on her breast, there can be
             no question that this was an intentional killing.
             Ross’ only defense was that he was not the
             perpetrator, and he did not raise any defense of
             accident, mistake, or lack of required intent.
             Accordingly, prior bad acts testimony should
             not have been permitted with regard to intent.

Id. (emphasis added).

      Here, based on the emphasized portion of the above-cited language,

the trial court concluded that, as a matter of law, when a defendant does not

raise the affirmative defense of accident or mistake, prior bad acts testimony



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should not be permitted. (Trial court opinion, 9/18/15 at 8.) The language

the trial court relies upon, however, only applied to the unique facts of Ross

and is not a rule of law.

      Indeed, eight years prior to our decision in Ross, our supreme court

held in Boczkowski that proof of absence of accident is admissible, at least

in first-degree murder prosecutions, despite a defendant’s failure to raise

accidental death as an affirmative defense. Boczkowski, 846 A.2d at 88.

Like Ross, Boczkowski was a first-degree murder case where the

defendant did not a raise a mistake or accident defense.              Unlike Ross,

however, the evidence to be adduced at trial in Boczkowski raised an

inference of mistake or accident that entitled the Commonwealth to

introduce prior bad acts evidence to dispel that inference.

      In Boczkowski, defendant was charged with, and later convicted of,

murdering his wife, Mary Ann.      Id. at 80.       On the night of the murder,

defendant called paramedics, who arrived at the couple’s home to find an

intoxicated   Mary   Ann    unresponsive   in   a   hot   tub   and   incapable   of

resuscitation. Id. at 81. The prosecution successfully sought to introduce

evidence of defendant’s conviction in North Carolina for the murder of his

former wife, Elaine.   Similar to the circumstances surrounding Mary Ann’s

death, Elaine died in a bathtub at the couple’s home while intoxicated. Id.

at 83, 88-89. Our supreme court held that the prior bad acts evidence of

the circumstances surrounding Elaine’s murder and defendant’s subsequent



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conviction of that murder were properly admitted to dispel the inference that

Mary Ann died as a result of an accident. Id. at 88-89.

      Bozckowski is, therefore, distinguishable from Ross in that the

evidence to be adduced at trial in Bozckowski raised the inference that

Mary Ann’s death could have been an accident. Consequently, even though

defendant did not raise the defense of accident, the evidence was properly

admitted to dispel the inference of accident.

      Here, the very nature of massage raises the inference that appellee

might have come into contact with the victim’s penis as a result of a mistake

or an accident. Additionally, because the victim claims that after appellee

pulled the victim’s penis, appellee apologized for the “misunderstanding,”

that evidence suggests that appellee touched the victim’s genitalia by

mistake. Therefore, even if appellee does not raise the affirmative defense

of mistake or accident, the very nature of massage, coupled with appellee’s

apology for the “misunderstanding” after he allegedly pulled the victim’s

penis, raises   the   inference   that   appellee   could have   mistakenly   or

accidentally come into contact with the victim’s penis, and it is certainly a

matter that the jury might consider during its deliberations.     As such, the

Commonwealth should not be deprived of dispelling the inference of mistake

that will arise on the basis of the evidence to be adduced at trial by

production of relevant evidence to demonstrate its absence.




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      That, however, does not end our analysis on the admissibility of the

prior bad acts evidence under the absence of mistake or accident exception.

In order for prior bad acts to be introduced under this particular exception, a

close factual nexus must exist to sufficiently demonstrate the connective

relevance   of   the   prior   bad   acts   to   the   criminal   charge   at    issue.

Commonwealth v. Sitler, 2016 Pa.Super. LEXIS 411, at *14 (en banc)

(Pa.Super. July 26, 2016).

      Here, the record reflects that a close factual nexus exists.              All acts

took place while appellee was rendering massage services to paying clients.

Appellee rendered those services while each client lay naked or scantily clad

on a massage table in a massage room while alone with appellee.                     The

record reflects that in addition to the assault on the victim, at least two of

the three indecent assaults on the others occurred while appellee was

massaging the complainant’s upper thigh.

      The record further reflects that the first assault that occurred on

April 24, 2014, resulted in appellee being formally placed on notice and then

trained on proper massage techniques. Despite the reprimand and training,

appellee carried out two more assaults while rendering massage services at

Hand and Stone Massage. The record further reflects that when the victim

in this case and the woman who appellee allegedly assaulted on July 11,

2014, rebuffed appellee, appellee apologized for the “misunderstanding.”

The July 11, 2014 victim will testify at trial that appellee’s conduct toward



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her was similar to his conduct toward the victim in this case. (See motion

in limine, 2/23/15 at 2, ¶ 4.)        The record further reflects that in a

prosecution independent of this case, police charged appellee with sexually

assaulting a woman on October 16, 2014, while rendering massage services

to her in the course of his employment as a massage therapist. Moreover,

the four acts occurred during a six-month period and, therefore, are

temporally related.   Additionally, the first assault involved touching of the

genital area; the second involved pulling of the penis; the third involved

digital contact with the genitals; and the fourth involved digital penetration.

These facts demonstrate an escalation or progression of appellee’s conduct.

      We are, therefore, constrained to find that the trial court abused its

discretion in denying the Commonwealth’s motion in limine to admit prior

bad acts evidence under the absence of mistake or accident exception under

Pa.R.E. 404(b)(2) because it misapplied Ross and because the record

demonstrates that a close factual nexus exists between the prior bad acts

and the act giving rise to this appeal.

      We additionally address the Commonwealth’s contention that the trial

court abused its discretion when it precluded the prior bad acts evidence

under the common plan, scheme, or design exception.         Common scheme

evidence is admissible “where the crimes are so related that proof of one

tends to prove the others.”     Commonwealth v. Elliott, 700 A.2d 1243,

1249 (Pa. 1997).



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      Here,    the   trial   court   explained   its   reasons   for   denying   the

Commonwealth’s motion under the common scheme exception, as follows:

              . . . [T]he Commonwealth failed to present evidence
              of shared details to show a “common scheme, plan
              or design” embracing the commission of the crimes
              so related to each other that proof of one tended to
              prove the others. [Appellee], a male, worked as a
              massage therapist, providing massages to several
              clients each day. As [appellee’s counsel] argued,
              asking the client if they are comfortable is part of a
              masseu[r]’s training. The Commonwealth’s proffered
              evidence     of  alleged   uncharged    inappropriate
              touching with two nondescript female clients, of
              which at least one was a returning client, a
              subsequent charged sexual assault of a third
              nondescript female client at another location, does
              not form a “close factual nexus sufficient to
              demonstrate the connective relevance of prior bad
              acts to the crime in question” against a 64-65 year
              old male returning client who was lying on his back
              wearing underwear.

Trial court opinion, 9/18/15, at 16-17.

      We are constrained to conclude that the trial court abused its

discretion in denying the Commonwealth’s motion in limine to admit prior

bad acts evidence under the common scheme exception set forth in

Pa.R.E. 404(b)(2) because it disregarded the evidence that demonstrated a

common scheme and based its denial of the motion on three insignificant

factual dissimilarities:     the female clients were “nondescript”; two of the

three prior bad acts occurred at Hand and Stone Massage, and the other

occurred at a hotel; and the victim in this case was a 64- to 65-year-old




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man who was on his back and wearing underwear when the assault

occurred.

      The record reflects that there is significant, relevant evidence that

demonstrates a relationship between all four acts.    All acts occurred while

each complainant was alone in a massage room while naked or scantily clad

with appellee for the purpose of receiving professional massage services;

appellee was performing those services when appellee made contact with

each complainant’s genitalia; three of the four complainants, including the

victim in this case, claim that the assaults occurred when appellee was

massaging their upper thigh; when rebuffed or told to stop, appellee

apologized for the “misunderstanding”; appellee touched the genitalia of

each complainant without consent; and the facts surrounding each incident

suggest an escalation or progression of appellee’s conduct.     These record

facts demonstrate that the four acts are so related that proof of one tends to

prove the other.

      To summarize, we conclude that the trial court abused its discretion in

denying the Commonwealth’s motion in limine to admit prior bad acts

evidence under the absence of mistake or accident exception under

Pa.R.E. 404(b)(2) because it misapplied Ross and because the record

demonstrates that a close factual nexus exists to sufficiently demonstrate

the connective relevance between the prior bad acts and the act giving rise

to this appeal. We further conclude that the trial court abused its discretion



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in denying the Commonwealth’s motion in limine to admit prior bad acts

evidence under the common scheme exception set forth in Pa.R.E. 404(b)(2)

because it disregarded the evidence that demonstrated a common scheme

and   based    its   denial   of   the   motion   on   three   insignificant   factual

dissimilarities. Finally, because the trial court never balanced the probative

value of the prior bad acts evidence against its prejudicial impact, we do not

reach that issue and direct the trial court to make that determination on

remand.

      Order reversed. Appellee’s motion for extension of time to file brief is

granted.   Case remanded for further proceedings consistent with this

memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/28/2016




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