J-S33037-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOHN WILLIAMS                              :
                                               :
                       Appellant               :   No. 421 EDA 2019

        Appeal from the Judgment of Sentence Entered January 11, 2019
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0009034-2017


BEFORE:      DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                         FILED AUGUST 07, 2020

        Appellant John Williams appeals from the judgment of sentence entered

in the Court of Common Pleas of Philadelphia County on January 11, 2019,

following his conviction of rape of a child and related offenses in connection

with his stepdaughter, N.P. We affirm.

        On July 25, 2018, the Commonwealth filed a motion to admit prior acts

of Appellant pursuant to Pa.R.E. 404(b).1           Therein, the Commonwealth

____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   Pa.R.E. 404 provides, in relevant part, as follows:

        (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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argued, inter alia, that the following facts were admissible at trial to show

Appellant’s common plan, scheme, and design in engaging in sexual activity

with young girls placed in his care:

             In the summer of 2004, [Appellant] sexually molested his
       daughter, S.W., aged 12 years old, at his residence [ ].2
       Appellant touched S.W. with his hands and fingers “all over [her]
       body,” on her legs, chest, buttocks, and “other personal spot,”
       (vagina) under her clothes. These incidents occurred “all
       throughout the house,” and every time S.W. visited [Appellant’s]
       residence. Though S.W. told [Appellant] to stop, [Appellant]
       continued to abuse and even threatened to “do something else” if
       S.W. confessed the abuse.

See Commonwealth’s Motion in Limine to Admit Other Acts/Crimes Evidence

Pursuant to Pa.R.E. 404(b), filed 7/25/18 at 3 (some brackets added). The

parties presented argument on the motion on October 23, 2018. At that time,

____________________________________________




       (2) Permitted Uses. This evidence may be admissible for another
       purpose, such as proving motive, opportunity, intent, preparation,
       plan, knowledge, identity, absence of mistake, or lack of accident.
       In a criminal case this evidence is admissible only if the probative
       value of the evidence outweighs its potential for unfair prejudice.

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

Pa.R.E. 404(b).

2 We have modified the quotation from the Commonwealth’s motion along
with the trial court’s statement of facts to remove proper names, specific
dates, and addresses so as to protect N.P.’s identity.



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the Commonwealth averred S.W.’s testimony would constitute valuable and

probative evidence to boost the credibility of N.P. as N.P.’s testimony would

occur in isolation and many years after the abuse had occurred. Id. at 3-5.

After hearing argument and upon noting it had conducted its own legal

research, the trial court ultimately granted the Commonwealth’s motion, id.

at 8, and the matter proceeded to a jury trial.3

       The trial court set forth the relevant facts revealed at trial as follows:

             The Complainant, N.P. was born [in August of 1998]. (N.T.
       10/24/18 at 21). Throughout most of her life, N.P. knew the
       Appellant as a stepfather to her and her four siblings. (Id. at 22,
       25-26). N.P., her siblings, the Appellant, and [N.P.’s Mother]
       shared a residence [ ] in Philadelphia. Id. At 25-26, 63). At trial,
       N.P. testified to multiple instances of sexual abuse by the
       Appellant, which spanned the course of nearly ten years. The first
       incident occurred in the [ ] home, when N.P. was five years old.
       (Id. at 23-24). The Appellant took N.P. to his bedroom, sat her
       at the edge of the bed, touched the outside of her vaginal area,
       and digitally penetrated her vagina. (Id. at 23). N.P. testified
       that similar episodes occurred while they were living on [ ], but
       she could not remember how may there were. (Id. at 24-25).
       N.P. further explained that these incidents occurred during the
       day, while her mother was at work. (Id. at 23, 25-26, 65). At
       the time, she did not disclose the abuse to anyone because “she
       was scared and embarrassed.” (Id. at 26).
             In 2006, when N.P. was around eight years old, the family
       moved to a different home [ ] in Philadelphia. (Id. at 28, 63).
       Around that time, the Appellant moved out of the home for one to
       two years but moved back when N.P. was eleven or twelve. (Id.
       at 28-29, 64). When he moved back in, he continued to sexually
       assault N.P. (Id. at 29). Specifically, he touched the outside of
____________________________________________


3 The Commonwealth also had intended to present at trial the testimony of
the daughter of Appellant’s wife’s cousin, T.P., who referred to Appellant as
“uncle.” T.P. would have stated Appellant had sexually abused her as well.
See Commonwealth’s Motion in Limine at 1-2. However, T.P. was in the
hospital and unavailable to testify at the time of trial. N.T. 10/24/18, at 128.

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     her vagina and digitally penetrated her on multiple occasions. (Id.
     at 29). At some point, the Appellant’s behavior escalated; N.P.
     testified that the Appellant had vaginal intercourse with her on
     two occasions. (Id. at 29-30). She explained that both times, the
     intercourse hurt and that she “scream[ed] and flinch[ed],” but the
     Appellant did not stop. (Id. at 30).
            The first instance involving vaginal intercourse occurred in
     the living room. (Id at 31). N.P testified that she was sitting on
     the couch when the Appellant started rubbing her vaginal area,
     outside of her underwear. (Id.). He then placed her on the arm
     of the couch, pulled his pants down, and inserted his penis into
     her vagina. (Id.). On a different occasion, N.P. was getting
     dressed in her bedroom when the Appellant entered her room and
     asked her if she needed help putting on lotion. (Id. at 32-33).
     She told him that she did not want help, but he rubbed it on her
     anyway. (Id. at 32). He then pushed her onto her bed, climbed
     on top of her, and inserted his penis into her vagina. (Id.). N.P.
     did not disclose the abuse to anyone because she felt ashamed
     and embarrassed. (Id. at 34).
            When N.P. was fifteen years old, she finally disclosed the
     Appellant’s abuse to her cousin [ ]. N.P. was sleeping over her
     cousin’s home when she told her that the Appellant used to
     sexually assault her. (Id.). Neither N.P. nor her cousin reported
     the abuse to the police because N.P. was scared and assumed that
     no one would believe her. (Id. at 36, 100). Four years later, when
     N.P. was nineteen years old, she disclosed the abuse to her
     mother and brother. (Id. at 36, 67, 86). [N.P.’s Mother] testified
     that, when N.P. finally disclosed the abuse, N.P. was “hysterically
     crying, shaking, just very—I’ve never seen my daughter that
     upset. Very, very upset.” (Id. at 69). Afterwards [N.P.’s Mother]
     reported the allegations to the police. (Id.).
            At trial, the Commonwealth also elicited testimony from
     S.W., The Appellant’s biological daughter. (N.T. 10/24/18 at
     107).     S.W. testified that she used to frequently visit the
     Appellant’s home on [ ] (Id. at 108). In the summer of 2004,
     when S.W. was twelve years old, the Appellant started to have
     inappropriate, sexual contact with her. (Id. at 109). The first
     incident occurred in the Appellant’s living room, while most of the
     household members were watching TV. (Id.). S.W. explained the
     incident as follows:

          S.W. [M]e and my brothers and sisters had went over
         to his house to visit him and our other family members.
         Everybody was in the living room watching TV doing they

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         own thing and he was sitting on the step. He told me to
         come over towards him and has me coming over towards
         him. He put his hands down my pants and was touching
         my private area. When I went to move back, he pulled
         me closer towards him and he continued on touching
         me.
         …
         ADA: You said that he touched your private area?
         S.W.: Yes.
         ADA: What specifically did he do?
         S.W.: Put his hand down my pants and touched, rubbing
         on my private area.
         ADA: The inside or outside?
         S.W.: The inside.
         ADA: You said other people were in the living room?
         S.W.: Yes, everybody was just doing their own thing.
         …
         S.W.: The whole house was crowded. The whole house
         was crowded, so everybody just up and down the steps,
         running back and forth. And he was like- the steps like
         right here and he is just sitting on the side of the steps.
         And I walked over towards him up the steps and that is
         when he pulled me towards him. He put his hands in my
         pants and started constantly rubbing on my private area.
         When I went to move back, he pulled me closer to him.
         ADA: Just for the record, the witness pointed her hand
         down towards her pants and moved it in the area [sic]
         down to the belt area of her pants, up and downward.
         THE COURT: So noted.

     (Id. at 109-12).

            S.W. testified that during a different visit, after [N.P.’s
     Mother] had left for work, the Appellant woke her up and told her
     to come to his bedroom. (Id. at 110, 113). The Appellant made
     her lie on his bed before groping her breasts and touching her
     “private area.” (Id. at 110). S.W. explained that she was
     uncomfortable and emotional during the incident stating, “[a]s I
     was lying back on the bed, I was crying- he asked was I okay and
     I said, [y]eah, but I knew I wasn’t okay, and it just kept on
     continuing.” (Id. at 110, 113). S.W. further testified that the
     Appellant groped her or touched her “private areas” every time
     she visited him (Id. at 109; 114; Com. Mot. in Limine to Admit
     Other Acts at 3).

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Trial Court Opinion, 9/6/19, at 1-5 (some brackets added).

        Appellant was found guilty of rape of a person less than thirteen years

old; unlawful contact with a minor; endangering the welfare of a child;

indecent assault of a person less than thirteen years old; and aggravated

indecent assault of a child.4        On January 11, 2019, Appellant received an

aggregate sentence of thirty-seven (37) years to seventy-four (74) years in

prison.

        Appellant filed a timely appeal on February 1, 2019.       On March 21,

2019, the trial court directed Appellant to file a concise statement of the

matters complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant

complied on June 10, 2019. The trial court filed its Rule 1925(a) Opinion on

September 6, 2019.

      In his brief, Appellant presents the following issue for our review:

        DID THE TRIAL COURT ERR WHEN IT GRANTED THE
        COMMONWEALTH’S MOTION TO ADMIT PRIOR BAD          ACTS
        EVIDENCE PURSUANT TO PA.R.E. 404 (B), AS THE PROBATIVE
        VALUE OF THIS EVIDENCE WAS OUTWEIGHED BY ITS POTENTIAL
        FOR UNFAIR PREJUDICE?

Brief for Appellant at 2.

        When analyzing the trial court’s pretrial ruling that S.W’s testimony

would be admissible, we apply the following, well-settled standard of review:

        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. Abuse of discretion is
____________________________________________


4   18 Pa.C.S.A. §§ 3121, 6318, 4504, 3126, 3125, respectively.

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      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.

Commonwealth v. Aikens, 990 A.2d 1181, 1184–85 (Pa.Super. 2010)

(citations and quotation marks omitted).         See also Commonwealth v.

Tyson, 119 A.3d 353 (Pa.Super. 2015) (en banc), appeal denied, 633 Pa.

787, 128 A.3d 220 (Pa. 2015).

      Pennsylvania Rule of Evidence 404(b) provides that “[e]vidence of other

crimes, wrongs, or acts may be admitted for other purposes, such as proof of

motive, opportunity, intent, preparation, plan, knowledge, identity or absence

of mistake or accident.” See Commonwealth v. Moser, 999 A.2d 602, 605–

06 (Pa.Super. 2010); see also Pa.R.E. 404(b). “[E]vidence of prior crimes is

not admissible for the sole purpose of demonstrating a criminal defendant's

propensity to commit crimes.” Commonwealth v. Melendez–Rodriguez,

856 A.2d 1278, 1283 (Pa.Super. 2004). Such evidence is admissible only if

offered for a non-propensity purpose. Id.

      Where, as herein, the Commonwealth seeks to admit a prior bad act

under the common plan, scheme, or design exception, the trial court first must

consider the details and surrounding circumstances of each incident to “assure

that the evidence reveals criminal conduct which is distinctive and so nearly

identical   as   to   become   the   signature    of   the   perpetrator.”   See

Commonwealth v. G.D.M., Sr., 926 A.2d 984, 987 (Pa.Super. 2007).

Matters for consideration include “the habits or patterns of action or conduct

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undertaken by the perpetrator to commit crime, as well as the time, place,

and types of victims typically chosen by the perpetrator.” Id.

      Generally, the trial court also must look at additional balancing factors,

including remoteness and potential for prejudice. Id. When considering

remoteness, if the details of the crimes are “nearly identical,” the court may

excuse a lapse of time unless it is “excessive.” Id. When considering potential

prejudice, the court must examine: 1) the degree of similarity between the

crimes; 2) the Commonwealth's need to present evidence; and 3) the ability

of the trial court to caution the jury concerning the proper use of such evidence

in their deliberations. Id.; see also Commonwealth v. Dillon, 921 A.2d

131, 141 (Pa. 2007) (noting that unfair prejudice is a tendency to suggest

decision on an improper basis or to divert the jury's attention away from its

duty of weighing the evidence impartially).

      Relevant to our analysis herein, this Court previously has noted that:

      [t]he essential elements of the act of rape, as well as other sexual
      crimes, will necessarily produce any number of similar
      characteristics when two acts of rape are scrutinized for shared
      features, particularly where, as we have here seen, there is
      commonality of roles and situs attendant the criminal episodes.

Commonwealth v. Frank, 577 A.2d 609, 614 (Pa.Super. 1990). Due to

these “similar characteristics,” our courts also have considered additional

qualities to determine substantial similarity under the unique facts and

circumstances of each case , including: the race, age, and sex of the victims;

the time of day of the crime; the proximity to the defendant's home and


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between the crime scenes and; the manner and location to which the victim

was taken. Id. at 614–15.       For example, in Tyson, supra, this Court

remarked that the similarities among the allegations were substantial,

including that: 1) the defendant was acquainted with both victims; 2) the

victims were of the same age and race; 3) the defendant was an invited guest

in each victim's home; 4) the defendant assaulted the victims while they were

in a weakened state; 5) each victim lost consciousness; 6) each victim woke

in her bedroom early in the morning to find the defendant having vaginal

intercourse with her. Id. at 360. Thus, the panel concluded that the evidence

should be admissible to show that the defendant had a common scheme of

nonconsensual intercourse with unconscious victims. Id. at 361.

      Herein, Appellant contends he did not receive a fair trial as the

prejudicial effect of S.W.’s testimony exceeded its probative value because

her allegations of abuse bore little resemblance to those of N.P. Brief for

Appellant at 16-21.     He further maintains the sole purpose for S.W.’s

testimony was to establish Appellant’s “bad character” or “propensity for

committing criminal acts.” Id. at 15, 20. Appellant stresses he had not been

prosecuted for his alleged assaults against his daughter S.W. and that, in fact,

a DHS report indicated S.W. recanted allegations she had made to a DHS

caseworker.    Id. at 15, 19-20.     As a result, Appellant asserts “it was

impossible for the jury to be fair and impartial.” Id. at 20.




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      In support of its decision to grant the Commonwealth’s motion, the trial

court reasoned as follows:

          In the case at bar, the similarities between the incidents
      involving S.W. and N.P. are striking and clearly demonstrate the
      Appellant’s common scheme, In both cases, there was an
      extended pattern of abuse. The incidents involving N.P. began
      when she was five years old, continued for three years,
      temporarily ceased when the Appellant moved away, and began
      again when he moved back into her home. (N.T. 10/24/18 at 24-
      26, 29-32). The incidents involving S.W. began when she was
      twelve, continued for two years, and stopped when the Appellant
      moved into his home on [ ]. The victims were also similar in age;
      although the Appellant’s abuse of N.P. started when she was five
      years old, the Appellant abused both victims when they were
      between the ages of eleven and twelve. (Id. at 29-30, 109;
      Comm. Mot. at 3). The Appellant abused both victims in his living
      room and bedroom in his [ ] home. (N.T. 10/24/18 at 24, Com.
      Mot. At 3). Both victims were African American and female.
      (Comm. Mot. At 9). There also is a congruous role between the
      Appellant and both victims. Specifically, the Appellant is a
      stepfather or biological father to both victims, and the Appellant
      was acting within a guardian capacity when he abused each of
      them. (N.T. 10/24/18 at 22, 25, 107; Comm. Mot. At 3,9).
      Further, the acts committed against the victims are similar. Both
      victims testified that the Appellant’s initial episodes of abuse
      involved the Appellant rubbing and digitally penetrating their
      vagina. (N.T. 10/24/18, at 23 109; Comm. Mot. at 1). Both
      victims testified that they resisted the Appellant, cried, screamed,
      or told him to stop, but he continued his abuse despite their pleas.
      (N.T. 10/24/18, at 30, 110; Comm. Mot. At 3).
                Accordingly this court found that the incidents were
      sufficiently similar and, therefore, slightly probative of Appellant’s
      common scheme to isolate and sexually abuse young girls in his
      care. . . .

Trial Court Opinion, 9/6/19 at 7, 10-11. We find the trial court did not abuse

its discretion in reaching this result.

      In Aikens, supra, the this Court held the trial court had properly

admitted evidence that Aikens had sexually abused his biological daughter,

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V.B., as proof of his common scheme, plan, or design to abuse a second

biological daughter, T.S. In doing so, we observed the “fact pattern involved

in the two incidents was markedly similar.” Id. at 1185–86. The victims were

the same age at the time of the abuse (V.B was 14 and T .S. was 15). Id. at

1182–83, 1185–86. In addition, Aikens initiated the sexual abuse while the

victims were staying in his apartment; he showed pornographic movies to the

victims, the assaults occurred at night in Aikens’ bed, and he mimicked sexual

intercourse to gratify himself. Id. at 1185–86. We found that “[t]hese

matching characteristics elevate the incidents into a unique pattern that

distinguishes them from a typical or routine child-abuse factual pattern.” Id.

at 1186 (emphasis added).

      Like Aikens, the matter sub judice involves a pattern of abuse of two,

young African American females that is markedly alike. N.P. and S.W. had

similar relationships with Appellant, a stepdaughter and a biological daughter,

respectively. Each was approximately the same age when she was abused by

Appellant at the identical location, his home. Appellant used the same method

of mauling and digitally penetrating the girls when N.B.’s mother was not at

home.    These matching characteristics are not insignificant details; they

elevate the incidents into a unique pattern that distinguishes them from

another child-abuse factual pattern. See Commonwealth v. Hughes, 521

Pa. 423, 555 A.2d 1264 (1989) (evidence about prior rape correctly allowed

at rape-murder trial since crimes were committed in similar geographic


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location, at similar time, characteristics of victim matched, and defendant

used same method of attack).        Since the crimes were comparable, the

probative value of the evidence of S.W.’s abuse outweighed its prejudicial

impact. Thus, the trial court did not err when it allowed the Commonwealth

to present the prior bad act evidence. Pa.R.E. 404(b)(2).

      Moreover, when delivering its final instruction to the jury, the trial court

included the following cautionary instruction about S.W.’s testimony:

     You have heard evidence tending to prove that [Appellant] was
     guilty of improper conduct with [S.W.], for which he is not on trial.
     I am speaking of the testimony to the fact that he had on multiple
     occasions penetrated her vagina with his fingers and touched her
     breast when she was 12-years-old. This evidence is before you
     for a limited purpose, that is, for the purpose of tending to show
     motive and intent, state of mind, common, scheme, or plan, and
     to rebut any claim of mistake or any inference of fabrication. This
     evidence must not be considered by you in a way other than for
     the purpose I just stated. You must not regard this evidence as
     showing that [Appellant] is a person of bad character or criminal
     tendency from which you might be inclined to infer guilt.

N.T., 10/25/18, at 55-56.

      In so instructing the jury, the trial court ameliorated any prejudice by

informing it that the other crimes evidence was admissible for the limited and

narrow purpose of determining Appellant's motive and intent and to rebut any

claim of mistake or inference of fabrication. The court cautioned the jury not

to regard the evidence as showing that Appellant was a person of bad

character or of criminal tendencies. A jury is presumed to have followed the

trial court’s instructions on the applicable law. Commonwealth v. Harris,

817 A.2d 1033, 1053 (Pa. 2002).        Thus, in light of the facts herein, “the

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probative value of the evidence to the Commonwealth's largely circumstantial

case clearly outweighed any unfair prejudicial effect, which was properly

limited   by   the   trial   court's   cautionary   instructions   to   the   jury.”

Commonwealth v. Hicks, 156 A.3d 1114, 1129 (Pa. 2017).

      Judgment of Sentence Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/20




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