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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA


                 v.

JOSEPH EARL BAILEY, SR.

                      Appellant                No. 450 MDA 2015


        Appeal from the Judgment of Sentence October 27, 2014
            In the Court of Common Pleas of Centre County
          Criminal Division at No(s): CP-14-CR-0000793-2013


COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA


                 v.

JOSEPH EARL BAILEY, SR.

                      Appellant                No. 451 MDA 2015


        Appeal from the Judgment of Sentence October 27, 2014
            In the Court of Common Pleas of Centre County
          Criminal Division at No(s): CP-14-CR-0000798-2013


COMMONWEALTH OF PENNSYLVANIA              IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA


                 v.

JOSEPH EARL BAILEY, SR.

                      Appellant                No. 452 MDA 2015
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             Appeal from the Judgment of Sentence October 27, 2014
                 In the Court of Common Pleas of Centre County
               Criminal Division at No(s): CP-14-CR-0000850-2013

BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, J.                                    FILED MARCH 21, 2016

          In these consolidated appeals, Appellant, Joseph Earl Bailey, Sr.,

appeals from the judgment of sentence entered by the Honorable Pamela A.

Ruest, Court of Common Pleas of Centre County. We affirm.

          The relevant facts and procedural history are as follows. Bailey was

charged in three separate criminal informations. At number 0793-2013,

Bailey was charged with three counts of corruption of minors 1 and three

counts of selling or furnishing liquor or malt or brewed beverages to minors.2

These charges concern an incident in July 2011 where Bailey supplied his

three minor children with alcohol at his home. At number 0798-2013, Bailey

was charged with four counts of rape of a child,3 four counts of aggravated

indecent assault,4 two counts of statutory sexual assault,5 two counts of

statutory      sexual      assault,6   one   count   of   involuntary   deviate   sexual


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18   Pa.C.S.A.   §   6301(a)(1)(i).
2
    18   Pa.C.S.A.   §   6310.1(a).
3
    18   Pa.C.S.A.   §   3121(c).
4
    18   Pa.C.S.A.   §   3125(b).
5
    18   Pa.C.S.A.   §   3122.1
6
    18   Pa.C.S.A.   §   3122.1(b).



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intercourse (IDSI),7 four counts of sexual assault,8 and five counts of

indecent assault.9 These charges stem from Bailey’s sexual abuse of his

stepdaughter, D.D., which occurred on many separate occasions between

June 1, 2011 and August 30, 2012. At number 0850-2013, Bailey was

charged with two counts of incest,10 two counts of sexual assault,11 one

count of corruption of minors,12 and two counts of indecent assault.13 These

charges stem from Bailey’s sexual abuse of his biological sister, A.W., which

occurred on many separate occasions between May 1, 2008 and December

31, 2010. The Commonwealth subsequently filed a motion to consolidate the

three criminal informations, which the trial court, the Honorable Jonathan D.

Grine, granted after a pre-trial hearing was held.

       A jury convicted Bailey of all of the above-mentioned offenses, with

the exception of count 4—sexual assault and count 7—indecent assault,

which were charged at number 0850-2013. Thereafter, the trial court, the

Honorable Pamela A. Ruest, determined that Bailey was a sexually violent

predator and sentenced him to an aggregate term of 203 to 406 years’


____________________________________________


7
  18 Pa.C.S.A. § 3123(b).
8
  18 Pa.C.S.A. § 3124.1.
9
  18 Pa.C.S.A. § 3126(a)(7).
10
   18 Pa.C.S.A. § 4302.
11
   18 Pa.C.S.A. § 3124.1.
12
   18 Pa.C.S.A. § 6301(a)(1).
13
   18 Pa.C.S.A. § 3126(a)(1).



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imprisonment. Bailey subsequently filed a post-sentence motion, which the

trial court denied. This timely appeal followed.

       On appeal, Bailey raises four issues for us to consider. In his first

issue, Bailey argues that the trial court abused its discretion in granting the

Commonwealth’s motion to consolidate the criminal informations.

       A trial court’s decision to consolidate indictments for trial is a matter of

discretion and will be reversed on appeal only for a “manifest abuse of

discretion    or    prejudice      and    clear   injustice   to   the   defendant.”

Commonwealth v. Keaton, 729 A.2d 529, 537 (Pa. 1999) (citation

omitted). “Consolidation of separate offenses in a single trial is proper if the

evidence of each of them would be admissible in a separate trial for the

others and is capable of separation by the jury so that there is no danger of

confusion.” Id. (citation omitted); see also Pa.R.Crim.P. 582(A)(1)(a).

       Bailey first argues that the Commonwealth’s motion for consolidation

was untimely under Pa.R.Crim.P. 582(B)(2) and should have been denied on

that basis alone. Bailey asserts that the motion was untimely because it was

not included in the omnibus pretrial motion and was not filed until “almost

ten months after Arraignment.” Appellant’s Brief (J-S06005-16), at 29.14



____________________________________________


14
  Bailey submitted three substantially identical briefs; however, the page
numbers differ in each brief.



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      Rule 582(B)(2) provides that a motion to consolidate “must ordinarily

be included in the omnibus pretrial motion.” Pa.R.Crim.P. 582(B)(2)

(emphasis added). The use of the word “ordinarily” plainly indicates that

while motions to consolidate should normally be included in an omnibus

pretrial motion, the rule is not absolute, and there are certain circumstances

where a motion to consolidate will be considered outside of an omnibus

motion. We refuse to make a rule absolute when the plain language does not

purport to do so. Thus, the trial court did not err by considering the motion.

      Bailey next argues that the three cases did not meet the criteria for

consolidation because “[t]he evidence of these distinct offenses was not

capable of separation and not clearly distinguishable by the Jury … and the

danger of confusion existed.” Appellant’s Brief (J-S06005-16), at 30-31. He

further contends “[p]rejudice occurred because the evidence tended to

convict [him] only by showing his propensity to commit crimes….” Id., at

32-33. We disagree.

      Evidence of other crimes is inadmissible at a trial when that proof is

introduced solely to show the defendant’s bad character or criminal

propensities. See Keaton, 729 A.2d at 537; see also Pa.R.E. 404(b)(1).

However, evidence of other crimes is admissible in certain circumstances,

such as when offered to prove motive, opportunity, intent, preparation, plan,

knowledge, identity, and absence of mistake or accident. See Pa.R.E.

404(b)(2). Additionally, such evidence is admissible “to show a common


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plan, scheme, or design embracing commission of multiple crimes, or to

establish the identity of the perpetrator, so long as proof of one crime tends

to prove the others.” Keaton, 729 A.2d at 537 (citation omitted).

“Consolidation of indictments requires only that there are shared similarities

in the details of each crime.” Commonwealth v. Newman, 598 A.2d 275,

278 (Pa. 1991); see generally Commonwealth v. Morris, 425 A.2d 715

(Pa. 1981).

      In Commonwealth v. Aikens, 990 A.2d 1181 (Pa. Super. 2010), we

ruled that the appellant’s prior rape of his daughter was admissible at his

trial for the sexual abuse of his younger daughter under the common

scheme or plan exception. See id., at 1185. We found that there were

sufficient similarities in the details of the two crimes to render the prior rape

properly admitted into evidence. See id. To illustrate, both victims were the

appellant’s daughters and were similar ages when the sexual abuse

occurred. See id., at 1186. The appellant also initiated contact with both

victims during overnight visits in his home and began the sexual abuse by

showing them pornographic movies. See id.

      Similarly, in Commonwealth v. Luktisch, 680 A.2d 877 (Pa. Super.

1996),   where   the   appellant   had   been    convicted   of   molesting   his

stepdaughter, we ruled that the trial court properly allowed the testimony of

the appellant’s biological daughter regarding the sexual abuse that the

appellant perpetrated on her when she was a child. See id., at 879. We


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concluded that the two incidents were sufficiently similar to be admissible

under the common scheme or plan exception since the pattern of

molestation was the same in both cases and the victims were similar in age

when the abuse occurred. See id.

      The rationale followed in the above-mentioned cases is applicable

here. To start, all three of Bailey’s victims were prepubescent family

members. Bailey started sexually abusing his biological sister, A.W., in 2008,

when she was 9 years old. See N.T., Trial, 4/28/14, at 93. Bailey started

sexually abusing his stepdaughter, D.D., in 2011, when she was 10 years

old. See id., at 312. Bailey supplied his biological daughter, D.B., with

alcohol and propositioned her for sex in 2011, when she was 11 years old.

See id., at 276, 280. Moreover, A.W. and D.D. testified that Bailey sexually

abused them in the basement of his house. See id., at 117, 319. A.W. and

D.D. testified that Bailey would lock the door before commencing the

abusive acts. See id. D.B. also testified that Bailey took her to his basement

and locked the door before propositioning her for sex. See id., at 278.

Finally, all three victims testified that Bailey would tell them that it was okay

what they were doing together, but that they were not to tell anyone else

about it. See id., at 94, 282, 321.

      We agree with the trial court’s determination that there were sufficient

similarities between the details of each case to warrant consolidation of the

matters. Specifically, the similarities involved in the three cases were


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probative of a common scheme, and evidence of each offense charged would

have been admissible in a separate trial for the others. 15 Moreover, the jury

could readily separate the evidence concerning each case, as each victim

testified to the distinctive events supporting the respective convictions, and

none of the fact situations is so complicated nor are any of the incidents

intertwined so as to confuse the jury. Accordingly, we conclude that the trial

court did not abuse its discretion by consolidating the three criminal

informations for trial. Bailey’s first issue on appeal merits no relief.

       Bailey’s second and third issues challenge the trial court’s rulings on

motions in limine. We utilize an evidentiary abuse of discretion standard

when    reviewing     the    denial   or   grant   of   a   motion   in   limine.   See

Commonwealth v. Mitchell, 902 A.2d 430, 455 (Pa. 2006).

       Admission of evidence is within the sound discretion of the trial
       court and will be reversed only upon a showing that the trial
       court clearly abused its discretion. An abuse of discretion is not
       merely an error of judgment, but is rather the overriding or
       misapplication of the law, or the exercise of judgment that is
       manifestly unreasonable, or the result of bias, prejudice, ill-will
       or partiality, as shown by the evidence of record.

Commonwealth v. Tyson, 119 A.3d 353, 357-58 (Pa. Super. 2015)

(citations omitted).
____________________________________________


15
    Although the offenses charged at number 0798-2013 were not sex
offenses, evidence of Bailey’s sexual advances toward D.B. would have been
admissible in the trials concerning D.D. and A.W due to the similar pattern in
the manner in which Bailey preyed on his young family members.



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      Only relevant evidence is admissible. See Commonwealth v. Stokes,

78 A.3d 644, 654 (Pa. Super. 2013). “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. (citation and internal quotations are

omitted). However, a court may exclude relevant evidence if “its probative

value is outweighed by the likelihood of unfair prejudice.” Commonwealth

v. Hitcho, 123 A.3d 731, 747 (Pa. 2015) (citation omitted); see also

Pa.R.E. 403. Evidence is not unfairly prejudicial merely because it is harmful

to the defendant’s case. See Commonwealth v. Page, 965 A.2d 1212,

1220 (Pa. Super. 2009). Rather, evidence will be excluded on this ground

only when it is “so prejudicial that it would inflame the jury to make a

decision based upon something other than the legal propositions relevant to

the case.” Id. (citations omitted).

      In his second issue, Bailey asserts that the trial court erred in denying

his motion in limine and in allowing his sister, A.W., to testify regarding the

abortion she obtained after he raped and purportedly impregnated her.

Bailey argues that this evidence was not probative, had the tendency to

inflame the passions of the jurors, and was unduly prejudicial. See

Appellant’s Brief (J-S06005-16), at 34.

      The trial court reasons that it properly denied Bailey’s motion in limine

and allowed A.W. to testify regarding her abortion because the testimony


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was relevant to help explain why A.W. did not immediately report the

incidents of rape. See Trial Court Opinion, 3/6/15, at 4. Additionally, the

trial court reasons that “any prejudices the jurors may have held against

abortion would have been used against … [A.W.], a Commonwealth witness,

and would not have prejudiced … [Bailey].” Id.

      After reviewing the certified record, we conclude that the trial court did

not abuse its discretion in allowing A.W. to testify regarding her abortion.

We agree with the trial court’s conclusion that this evidence was relevant

and not unduly prejudicial to Bailey. Thus, Bailey’s second issue on appeal

merits no relief.

      In his third issue, Bailey asserts that the trial court erred in granting

the Commonwealth’s motion in limine and in precluding defense counsel

from giving an illustration of reasonable doubt in her closing argument. The

specific illustration at issue involved making a decision as to whether a

frozen pond appeared solid enough to safely skate upon it after making

observations regarding the weather and the appearance of the ice, among

other criteria. See N.T., Motions in Limine, at 3-5.

      In arguing that the trial court erred by not allowing his counsel to use

this illustration, Bailey relies on this Court’s decision in Commonwealth v.

Jones, 858 A.2d 1198 (Pa. Super. 2004). His reliance on Jones, however, is

misplaced. Jones concerned a determination of whether the trial court’s use

of an illustration during jury instructions was a clear and accurate statement


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of law regarding reasonable doubt. See id., at 1203. In the present case, we

are assessing whether the trial court abused its discretion in precluding

defense counsel from using the proposed illustration in her closing

argument. In explaining its decision, the trial court stated:

      The Court has consistently precluded defense counsel, First
      Assistant Public Defender Deborah Lux, from using her
      reasonable doubt illustration involving skating on an icy pond in
      winter because it inappropriately plays on jurors’ fears regarding
      falling through ice and drowning.       See Commonwealth v.
      Randall, Docket No. CP-14-CR-2053-2013; Commonwealth v.
      Hopkins, Docket No. CP-14-CR-1606-2013; Commonwealth v.
      Best, Docket No. CP-14-1772-2013. In granting the Motion in
      Limine, the Court specified that while Attorney Lux could not use
      her ice skating example, she was free to use any other
      illustration of reasonable doubt so long as it did not
      impermissibly play upon fear.

Trial Court Opinion, 3/6/15, at 5 (emphasis added).

      Bailey does not explain how the trial court’s rationale for prohibiting

defense counsel’s proposed illustration constituted an abuse of discretion.

Instead, he simply argues “[i]t was reversible error for the Trial Court to

restrict Mr. Bailey’s ability to attempt to illustrate the concept of reasonable

doubt in his closing argument.” Appellant’s Brief (J-S06005-16), at 43.

Bailey’s argument is insufficient to convince us that the trial court abused its

discretion in that regard. Consequently, Bailey’s third issue on appeal merits

no relief.

      In his fourth issue, Bailey challenges the discretionary aspects of his

sentence. Bailey contends that the trial court abused its discretion in


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imposing the sentence because “[a]lthough the sentences imposed on each

of the twelve counts were in act [sic] legal, the total aggregate sentence of

203   years   to   406    years      rendered   the     overall     sentence    beyond

comprehension.”    Id.,   at   45.    Essentially,    Bailey   is   objecting   to   the

consecutive nature of his sentence.

      “Although Pennsylvania’s system stands for individualized sentencing,

the court is not required to impose the ‘minimum possible’ confinement.”

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (citation

omitted). The sentencing court “has the discretion to impose sentences

consecutively or concurrently and, ordinarily, a challenge to this exercise of

discretion does not raise a substantial question.” Id. (citation omitted); see

also 42 Pa.C.S.A. § 9721(a). “The imposition of consecutive, rather than

concurrent, sentences may raise a substantial question in only the most

extreme circumstances, such as where the aggregate sentence is unduly

harsh, considering the nature of the crimes and the length of imprisonment.”

Id., at 171-172 (citation omitted).

      An “extreme circumstance” is not present here. The trial court acted

well within its discretion in imposing consecutive sentences. Although the

aggregate sentence is lengthy, it is nonetheless within the statutory

guidelines. For instance, due to Bailey’s prior third degree rape conviction in

New York, the trial court properly imposed the mandatory minimum




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sentence of 25-50 years’ imprisonment for his rape and IDSI convictions.

See 42 Pa.C.S.A. § 9718.2(a)(1).

      Given the egregious pattern of sexual abuse and the resultant physical

and emotional harm that Bailey inflicted upon his victims, we agree with the

trial court’s conclusion that a sentence of 203 to 406 years’ imprisonment is

reasonable and not excessive. Accordingly, Bailey’s challenge to the

discretionary aspects of his sentence is without merit; it does not even raise

a substantial question for our review.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/21/2016




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