J-S28025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LUIS ANGEL CRUZ                            :
                                               :
                       Appellant               :   No. 1443 MDA 2017


            Appeal from the Judgment of Sentence, June 19, 2017,
               in the Court of Common Pleas of Dauphin County,
             Criminal Division at No(s): CP-22-CR-0003831-2014.


BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.:                              FILED JULY 17, 2018

       Luis Angel Cruz appeals from the judgment of sentence, after a jury

convicted him of multiple charges of child molestation and rape,1 resulting in

an aggregate sentence of 35 – 70 years of incarceration. Discerning no abuse

of discretion by the trial court, we affirm.

       In 1995, Cruz pleaded guilty in Dauphin County to several of the same

charges he faced in this case. Prior to trial in this matter, the Commonwealth

filed a motion to admit the testimony of Cruz’s previous victim under

Pennsylvania Rule of Evidence 404(b). Cruz filed a response objecting to the

prior-bad-act testimony. The trial judge granted the Commonwealth’s motion

and allowed that testimony.
____________________________________________


1 See 18 Pa.C.S.A. § 3121(c); 18 Pa.C.S.A. § 3123(b); 18 Pa.C.S.A. §
3125(a)(7); 18 Pa.C.S.A. § 6318(a)(1); 18 Pa.C.S.A. § 3126(a)(7); and 18
Pa.C.S.A. § 6301.
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      At trial, the Commonwealth called three witnesses: (1) the complainant

in this case, (2) her mother, and (3) Cruz’s prior victim from the 1995 case.

Only the testimony of the current complainant and prior victim are relevant to

this appeal.

      Originally from Puerto Rico, the female complainant, her mother, and

two sisters moved to Harrisburg in 2006. The complainant was eight at that

time. The family resided in a shelter when they first arrived in Pennsylvania,

but then the complainant became a resident patient at a psychiatric hospital

for her anger issues. After a few months of treatment, she returned to live

with her mother at the shelter and met Cruz, her mom’s new boyfriend. At

the time, Cruz rented a bedroom at a nearby building, and they would visit

him often.

      According to the complainant, Cruz molested her almost immediately:

               I would find myself upstairs with him, and after a little
               bit – it started – it started off with the touching. Like,
               the touching of my private areas . . . My chest. My butt
               . . . It started off as on top of clothes.

         Q: Did he ever touch you underneath your clothes?

         A: Yes.

N.T., 6/6/17, at 40.

      While the complainant could not recall how long this groping in Cruz’s

room continued, she and her family eventually moved out of the shelter into

low-income housing. She was about nine or ten at the time. Cruz moved in

with them and things “escalated from there.” Id. at 43. Late at night, “when


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everybody was asleep,” the complainant explained that Cruz “would come into

the room, crack the door.” Id. at 44. She testified that Cruz:

            would prepare himself. Take off his shoes at the bottom of
            the bed. Touch me. Tell me not to make a noise. Don’t
            alert anybody. And once all that was done, he would get
            under the covers, take off my pants, start touching me in
            my private areas. Then the licking and kissing the ear. And
            at times he smelled like alcohol . . . He would touch my
            chest, my butt, my vagina. It was more of, like, trying to
            soothe me, but for me it wasn’t.

Id. at 45. At some point, Cruz inserted his penis into her vagina, causing her

to bleed.

      He also attempted anal intercourse, but the complainant was in so much

pain that he had to stop. She testified that Cruz “was probably, like, halfway

[in] until the point I was whimpering and crying with tears in my eyes about

to make some noise.” Id. at 90.

      The Commonwealth attempted to elicit testimony that Cruz performed

cunnilingus on the complainant, but to no avail. See Id. at 47, 49. It did,

however, prove that Cruz would force the complainant to rub his genitalia with

her hands. “At times he would grab my hand and move – put it on his penis

and try to have me massage it.” Id. at 47.

      Eventually, Cruz would climax onto the floor, “grab a tissue or rag and

wipe it up.” Id. at 48. He repeated these offenses “very often,” so regularly,

in fact, that the complainant “believe[d] it was every night.” Id.




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       Afterwards, Cruz threatened the girl, her siblings, and her mother harm,

if she did not remain quite about the assaults.      He also bought her gifts,

“bribing” the complainant “to keep [her] mouth shut.” Id. at 51.

       Cruz and the girl’s mother broke up for unrelated reasons. Several years

later, the complainant first came forward with her accusations against Cruz

when she was detained on juvenile charges for assaulting her mother.

       As its final witness, the Commonwealth called the victim of Cruz’s prior

conviction, who testified that, when she was twelve-years-old, Cruz, her

mother’s ex-boyfriend, was living with her, her mom, and her brother. He

assaulted her one time, right before he moved out. She testified that “late at

night, maybe twelve to one o’clock in the morning,” she “was asleep.” Id. at

123.

       The victim could not recall whether the event took place in her bedroom

or her mom’s bedroom. Id. But, because she would later testify that her

mother “was asleep . . . in her bedroom,” the only reasonable inference is that

the assault took place in the victim’s bedroom. Id. at 126.

       She recounted the incident in her room as follows:

          He started kissing me along my neck. I was sleeping on my
          stomach. He started kissing me along my neck and kind of
          woke me up. At that point he kind of turned me over and
          stated kissing me on my front of my neck and pulled my
          shirt up and kissed me all the way down to my vagina area
          . . . He basically just – just told me to that I was going to
          enjoy it . . . when he kissed me down to my vagina, at that
          point he had me put my hands on his penis basically to get
          him aroused. And then he tried to put his penis inside of . .



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          . [my] vagina . . . He put my hands on his penis . . . He had
          me, like, kind of stroke him.

Id. at 123 – 125. This lasted about ten minutes but stopped when the victim

“pushed him off.” Id. at 126.

       Cruz smelt like alcohol during this previous assault. He also ejaculated.

Both the complainant and Cruz’s previous victim are Latinas.

       Cruz raises one issue on appeal. He phrases it as “did not the court err

in permitting the Commonwealth to introduce prior crimes evidence detailing

a sexual assault involving a person other than the complainant when such

activities were remote from the events on trial and when the other incident

was not sufficiently similar to the currently charged offense to constitute a

‘signature?’” Cruz’s Brief at 5 (emphasis added). The Commonwealth restates

the issue as “whether the lower court properly granted [its] motion in limine

to introduce certain ‘prior bad act’ evidence under Pa.R.E. 404(b)” – which

essentially asks the same question in a different manner. Commonwealth’s

Brief at 1 (emphasis added). Given our scope and standard of review2 on


____________________________________________


2 Scope of review and standard of review are so critical to an appropriate
appellate review, that all appellants must include them in their briefs. See
Pennsylvania Rule of Appellate Procedure 2111(a)(3). The “scope of review”
and the “standard of review” have distinct and definitive definitions.
Generally, standard of review defines “the depth or intensity with which trial
court rulings of fact, law, and discretion are subjected to review. Scope of
review . . . defines the breadth of the review function.” Phillips, Jr., J., “The
Appellate Review Function: Scope of Review,” 47 Law & Contemp. Probs. 2,
1 (Spring 1984). Specifically in Pennsylvania:




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evidentiary matters, the parties have incorrectly stated the issue before this

Court.

       Cruz cited our scope and standard of review in his brief but failed to

appreciate their implication for his appellate issue and argument. He wrote:

          [t]he admissibility of evidence is a matter for the discretion
          of trial court, and a ruling thereon will be reversed on appeal
          only upon a showing that the trial court committed an abuse
          of discretion. Commonwealth v. Sherwood, 982 A.2d
          483, 495 (Pa. 2009); Commonwealth v. Malloy, 856 A.2d
          767, 775 (Pa. 2004). “An abuse of discretion is not merely
          an error of judgment, but the misapplication or overriding
          of the law or the exercise of a manifestly unreasonable
          judgment based upon partiality, prejudice or ill will.”
          Commonwealth v. McGinnis, 675 A.2d 1282, 1285
          (Pa.Super. 1996) (quotation marks omitted).

              The scope of review is plenary.

Cruz’s Brief at 4.




____________________________________________


          “Scope of review” and “standard of review” are often—albeit
          erroneously—used interchangeably. The two terms carry
          distinct meanings and should not be substituted for one
          another. “Scope of review” refers to the confines within
          which an appellate court must conduct its examination. In
          other words, it refers to the matters (or “what”) the
          appellate court is permitted to examine.       In contrast,
          “standard of review” refers to the manner in which (or
          “how”) that examination is conducted . . . we also referred
          to the standard of review as the “degree of scrutiny” that is
          to be applied.

Morrison v. Commonwealth, Depart. of Pub. Welfare, Office of Mental
Health (Woodville State Hosp.), 646 A.2d 565, 570 (Pa. 1994) (citations
and some punctuation omitted).


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       Cruz is clearly correct as to our standard of review. Moreover, in light

of the Supreme Court of Pennsylvania’s recent holding in Commonwealth v.

Johnson, 160 A.3d 127 (Pa. 2017), he also appears to be correct that our

scope of review is plenary. We note that the Commonwealth does not disagree

with his statement of the scope and standard of review and, therefore, “is

satisfied with them.” Pennsylvania Rule of Appellate Procedure 2112.

       The Johnson Court, reviewing a ruling to admit Pa.R.E. 404(b) evidence

of prior crimes, affirmed “for reasons other than those relied upon by the trial

court.” Johnson, 160 A.3d at 144. In so doing, the Justices said, “We may

affirm a trial court’s evidentiary ruling if we deem it to have been correct on

grounds other than those specified by the court itself, particularly where the

additional reason is apparent from the record.” Id. at 144, n. 15 (quoting

Commonwealth v. Edwards, 903 A.2d 1139, 1157 (Pa. 2006)). Thus, the

Supreme Court of Pennsylvania used a plenary scope of review for Pa.R.E.

404(b) decisions, and so will we.3

       Thus, in light of our expansive scope of review and deferential standard

of review, the issue before this Court is: did the trial court misapply the law;

was its judgment manifestly unreasonable, in light of all the evidence of
____________________________________________


3 Our scope of review for orders granting motions in limine is plenary, despite
this Court’s prior, contrary decisions, which Commonwealth v. Johnson,
160 A.3d 127 (Pa. 2017), constructively abrogated.                    See, e.g.,
Commonwealth v. Stephens, 74 A.3d 1034, 1037 (Pa. Super. 2013)
(quoting Commonwealth v. O’Brien, 836 A.2d 966, 968 (Pa. Super. 2003)
(“because the trial court indicated the reason for its decision . . . our scope of
review is limited to an examination of the stated reasons.”); see also
Commonwealth v. Weakley, 972 A.2d 1182 (Pa. Super. 2009).

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record; or was that judgment the result of bias, prejudice, or ill will? The issue

is not – as Cruz and the Commonwealth suggest – the more exacting question

of whether the trial court’s judgment to permit the testimony was correct.

Correct or incorrect judgment is the language of de novo review, which we do

not use when reviewing evidentiary decisions.

        Disregarding our deferential review of evidentiary rulings, Cruz opens

the argument of his brief by claiming “The [trial c]ourt erred in granting the

Commonwealth’s motion in limine to introduce certain ‘prior bad act’ evidence

under Pa.R.E. 404(b).”         Cruz’s Brief at 18.   He then gives a scholarly

dissertation on the various theories Pa.R.E. 404(b) evidence, which culminates

with a discussion of Commonwealth v. Hicks, 156 A.3d 1114 (Pa. 2017).

See Cruz’s Brief at 19 – 31. After explaining that there is no clear majority in

Hicks, he “acknowledges, however, that the Superior Court must decide the

instant matter in accordance with the pre-Hicks jurisprudence . . . .” Id. at

31.

        Cruz concludes his argument by retrying his original opposition to the

Commonwealth’s motion in limine, as if de novo. Critically, he never says how

(or even that) the trial court misapprehended or misapplied Pa.R.E. 404(b);4

____________________________________________


4   Pennsylvania Rule of Evidence 404(b) dictates:

           (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



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that the judgment reached was manifestly unreasonable; or that the trial

judge demonstrated bias, prejudice, or ill will towards him. Ultimately, Cruz’s

only real contention is that “there is significantly less similarity between the

remote crime and the current offense than there was in” Commonwealth v.

Aikens,     990    A.2d   1181     (Pa.   Super.   2010);   O’Brien,   supra;   and

Commonwealth v. Luktisch, 680 A.2d 877 (Pa. Super. 1996). Cruz’s Brief

at 36.    However, he does not analyze the facts of those three cases or

distinguish his situation from them.

       The argument from the Commonwealth essentially restates the trial

court’s 1925(a) Opinion. See Commonwealth’s Brief at 8 – 11.

       The trial court opined that the testimony of Cruz’s previous victim:

          was properly admitted to show [Cruz’s] intent or method of
          operation (i.e. to establish a common scheme). The non-
          exclusive set of factors to consider includes the victims,
____________________________________________


          to show that on a particular occasion the person acted in
          accordance with the character.

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

          (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.


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       acts, location, and any relationship to the accused.
       Commonwealth v. O’ Brien, 836 A.2d 966 (Pa. Super.
       2003). A trial court must look at the factual similarities
       between the two incidents in its entirety.      Here, the
       introduction of this testimony was relevant to establish a
       common scheme, intent, plan or design and, thus, bolster
       the victim’s testimony.

           Applying the above-mentioned principles to the case at
       hand, we note the similarities between the two incidents.
       We first address the time period between the two incidents.
       The first incident occurred in roughly 1994 and the second
       incident occurred between the dates of September 2006 and
       September 2007. In Commonwealth v. Aikens, 990 A .2d
       1181 (Pa. Super. 2010), the Pennsylvania Superior Court
       reiterated that “remoteness is merely one factor to be
       considered in determining admissibility” of a proffer of
       prior[-]bad[-]acts evidence. Aikens, 990 A.2d at 1186.
       However, “‘while 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 1185 (quoting Commonwealth v. Luktisch, 680 A.2d
       877, 879 (Pa. Super. 1996)). A time period of roughly ten
       years is not too remote a time period when taken into
       consideration with the similarities between the two
       incidents. Thus, we proceed to the similarities of the
       incidents.

          Both incidents involved minor girls of Hispanic descent.
       At the time of the incident[s], [Cruz] was dating the victims’
       mothers and would often spend the night at the mother’s
       place of residence. [Cruz] was in the same fatherly role to
       both victims. Both incidents occurred at the victims’
       mothers’ homes. The incidents have the same modus
       operandi. Both victims testified that [Cruz] would sneak up
       on them, late at night while everyone was sleeping. Both
       victims were in a vulnerable position of sleeping along with
       everyone else. [Cruz] would have an alcohol odor about his
       person. [Cruz] would begin by kissing/licking both girls on
       the back of the neck and proceed to hold the girls’ hands
       and stroke his penis. Finally, both girls testified that he
       would ejaculate. Based off the similar race, age, location,
       relationship to the victims, manner of sexual abuse, this

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         Court properly admitted the 404(b) evidence to show
         [Cruz’s] intent, method of operation, or common scheme.

Trial Court Opinion, 10/16/17, at 4 – 6.

      Cruz disagrees with the trial judge’s rationale for reaching the conclusion

that his prior bad act of child molestation was substantially similar to events

in this case. He points out that he only molested his prior victim once, near

the end of his relationship with her mother, while he molested the current

complainant repeatedly, from the very beginning of the relationship and over

the course of several years.

      This line of reasoning misses the trial judge’s point for admitting the

evidence. He allowed the previous victim’s testimony to show a common,

repeated, modus operandi. The modus operandi exception to Rule 404(b)

does not speak to the frequency of the criminal conduct; its purpose is to show

the manner in which the crime is carried out. As this Court has explained, the

modus operandi expectation is to “show a common scheme or plan. Thus, the

details of the crimes must be examined for shared similarities, i.e., similarity

of victims, location where the crimes occurred.” O'Brien, supra. at 969.

See Commonwealth v. Newman, 598 A.2d 275, 279 (Pa. 1991) (stating

that a commonality of roles and location of crime establishes a common design

and that the court must examine shared details); see also Commonwealth

v. Elliott, 700 A.2d 1243, 1250 (Pa. 1997) (allowing testimony to show modus

operandi from three prior assaults with sexual overtones, on three white




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women in their twenties, in the early morning hours, when each woman found

herself alone with defendant).

      Nothing in O’Brien, Newman, or Elliott suggests that courts should

concern themselves with how often the crime occurred. Such a difference has

more to do with when opportunity presents itself to the criminal than it does

with modus operandi. Rather, we consider the way in which one committed

the various crimes to demonstrate a common modus operandi. Hence, the

trial court rationally disregarded the difference in the number of assaults Cruz

perpetrated upon his prior victim versus his current complainant.

      Next, Cruz draws our attention to the age differences of the prior victim

and the instant complainant. One girl was twelve-years-old at the time of the

molestation; the other was between eight and eleven. Cruz attempts to make

a nonexistent distinction between a “prepubescent” girl and a “possibly post-

pubescent” one. Cruz’s Brief at 37. We fail to see any distinction here, and,

even if we did, it would not render the trial court’s judgment manifestly

unreasonable, because a twelve-year-old child has no greater capacity to

consent to sexual activity than one at the ages of nine, ten, or eleven. In

addition, the female body does not so greatly change from the age of ten or

eleven to twelve to establish the different preferences for victims that Cruz’s

argument suggests. Hence, the trial judge’s connection between the ages of

the complainant and the prior victim was reasonable.

      Finally, Cruz points out that he performed cunnilingus on his prior victim,

but he never did so on the current complainant. He likewise argues that he

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penetrated the complainant vaginally and attempted anal intercourse with her

– two things Cruz did not do to his prior victim. This argument overlooks the

many similarities in the manner in which he did gratify himself with both girls,

which the trial court related in great detail in its 1925(a) Opinion. We see no

reason to recite them again, but they are sufficient for us to conclude that the

trial court’s judgment of relevance to prove modus operandi was eminently

reasonable.

      Cruz ends his brief with the conclusory statement that “[a]ny minimal

relevance of such evidence was outweighed by the undue prejudice occasioned

by its admission.” Cruz’s Brief at 38. Cruz says no more on this and cites to

no case law supporting his bald claim of prejudice.

      In order for an argument to be cognizable on appeal it must contain

“discussion and citation of authorities as are deemed pertinent.” Pennsylvania

Rule of Appellate Procedure 2119(a).      “Appellate arguments which fail to

adhere to these rules may be considered waived, and arguments which are

not appropriately developed are waived.         Arguments not appropriately

developed include those where the party has failed to cite any authority in

support of a contention.”    Lackner v. Glosser, 892 A.2d 21, 29–30 (Pa.

Super. 2006). Because Cruz has failed to develop an argument to show that

any prejudice from the admission of the 404(b) testimony outweighed its

relevance, we find that he has waived his prejudice argument.

      Thus, we conclude that, in light of the whole record, the trial court did

not abuse its discretion in admitting the Commonwealth’s 404(b) evidence.

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     Judgment of sentence affirmed.

     Judge Olson concurs in result.

     Judge Musmanno concurs in result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/17/2018




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