J-A33006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

D.R.L.

                             Appellant                No. 399 WDA 2016


            Appeal from the Judgment of Sentence January 26, 2016
                  In the Court of Common Pleas of Erie County
              Criminal Division at No(s): CP-25-CR-0002775-2014


BEFORE: LAZARUS, J., SOLANO, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                       FILED FEBRUARY 17, 2017

        D.R.L. appeals from the judgment of sentence, entered in the Court of

Common Pleas of Erie County, following his convictions for rape of a person

less than 13 years old,1 two counts of involuntary deviate sexual intercourse

with a person less than 13 years old,2 sexual assault,3 two counts of

indecent assault of a person less than 13 years old,4 corruption of a minor,5

and endangering the welfare of children.6 Upon review, we affirm.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 P.S. § 3121(a)(6).
2
    18 P.S. § 3123(a)(6).
3
    18 P.S. § 3124.1.
4
    18 P.S. § 3126(a)(7).
(Footnote Continued Next Page)
J-A33006-16



        In February 2014, K.R. and his half-brother G.B. made a report to the

Erie Police Department alleging that D.R.L., their cousin-by-marriage, had

sexually abused them during their childhoods. The abuse occurred mostly

when their mother, R.R., took them to be babysat at the home of her cousin,

Kathy, who was D.R.L.’s wife. K.R. was abused when he was approximately

eight to thirteen years old. G.B., eight years older than K.R., was abused

from the time he was approximately five to thirteen years of age.                 The

brothers were never abused together, and were each unaware that the other

had been abused until G.B. disclosed the abuse to his mother, R.R., in an

effort to explain his self-estrangement from various family members. R.R.

then contacted K.R., who admitted that D.R.L. had also abused him. They

subsequently discovered that their cousin, D.R.L.’s oldest daughter, had

given birth to a baby boy and planned to move back to Erie to be closer to

her father.     In an effort to protect the baby from abuse by D.R.L., the

brothers disclosed the abuse to their cousin, who encouraged them to go to

the police.

        On or about March 3, 2014, the Erie Police Department forwarded to

Detective Joseph Spusta the information concerning the sexual abuse

allegations    against     D.R.L.    and    the   following   day   Detective   Spusta
                       _______________________
(Footnote Continued)


5
    18 P.S. § 6301(a)(1)(ii).
6
    18 P.S. § 4304(a)(1).



                                            -2-
J-A33006-16



interviewed K.R. On April 11, 2014, Detective Spusta conducted a one-way

consensual phone call intercept between K.R. and D.R.L., in which K.R.

confronted D.R.L. about the past abuse.               D.R.L. neither confirmed nor

denied the allegations, but claimed he had no memory of them. Detective

Spusta interviewed D.R.L. on May 22, 2014, and he again claimed he had no

memory of the abuse but neither confirmed nor denied the claims.                     On

August 29, 2014, Detective Spusta filed charges against D.R.L.                 Detective

Spusta did not interview G.B. until June 2015, and no charges were brought

concerning D.R.L.’s alleged abuse of G.B., as the statute of limitations had

run.

        A hearing on a pre-trial motion in limine was held on July 13, 2015 to

determine the admissibility of G.B.’s testimony regarding his abuse at the

hands of D.R.L.          The court held that the testimony was admissible to

demonstrate a common plan, scheme or design pursuant to Pa.R.E. 404(b).

        Following    a    two-day     trial,   a   jury   convicted   D.R.L.    of   the

aforementioned charges. The court sentenced D.R.L. on January 26, 2016,

to 21 to 42 years’ incarceration and ordered that he be classified a sexually

violent predator under the Sex Offender Registration and Notification Act

(SORNA)7 and register as such for life.                   D.R.L. filed a motion to




____________________________________________


7
    42 Pa.C.S.A. §§ 9799.10-9799.41



                                           -3-
J-A33006-16



modify/reconsider sentence on February 1, 2016, which the court denied on

March 4, 2016.

      D.R.L. filed a timely notice of appeal on March 16, 2016, followed by a

court-ordered statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b).     On appeal, D.R.L. raises the following issue for our

review:

      Whether the [trial] court committed reversible error when it
      allowed a Commonwealth witness to testify concerning
      uncharged criminal allegations that [D.R.L.] had also sexually
      assaulted that witness?

Brief for Appellant, at 13.

      In reviewing an evidentiary ruling by the trial court,

      our standard of review is one of deference. The admissibility of
      evidence is solely within the discretion of the trial court and will
      be reversed only if the trial court has 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. Herb, 852 A.2d 356, 363 (Pa. Super. 2004) (citations

omitted).

      D.R.L. asserts that the trial court abused its discretion when it allowed

the Commonwealth to introduce evidence of G.B.’s uncharged sexual abuse.

Specifically, D.R.L. asserts that the trial court erred when it allowed G.B. to

testify regarding nearly ten years of alleged abuse he endured at the hands

of D.R.L. prior to the abuse of K.R. D.R.L. argues that the dispositive issue

before the jury was K.R.’s credibility. D.R.L. asserts that G.B.’s testimony

                                     -4-
J-A33006-16



regarding separate, uncharged abuse inflamed and prejudiced the jury

against D.R.L. such that “the defense’s ability to have the jury carefully and

objectively consider K.R.’s credibility was destroyed.” Brief for Appellant, at

14. D.R.L. also argues that the distance in time between the boys’ abuse

rendered G.B.’s testimony inadmissible.

      Moreover, D.R.L. asserts that even if G.B.’s testimony were admissible

under one of the exceptions set forth in Rule 404(b), the trial court

nevertheless erred by admitting the testimony because its probative value

was outweighed by its potential for unfair prejudice.      D.R.L. argues that

G.B.’s testimony was actually introduced with the improper purpose of

demonstrating D.R.L.’s propensity to commit this type of crime, which is

explicitly prohibited by Rule 404(b).

      Evidence of other crimes is not precluded merely because it prejudices

the defense.    Commonwealth v. Brown, 414 A.2d 70, 75 (Pa.1980).

Indeed, all evidence of guilt is prejudicial to the defense; the Rules of

Evidence only prohibit unfair prejudice.      Commonwealth v. Hairston, 84

A.3d 657, 670 (Pa. 2014). As our Supreme Court has summarized:

      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).
      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.


                                        -5-
J-A33006-16



Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009) (citations

omitted).

     Here, the trial court admitted G.B.’s testimony for the limited purpose

of demonstrating D.R.L.’s common plan, scheme, or design based on the

similar relationship of the two boys to D.R.L. and the common pattern of

D.R.L.’s abuse of the boys.    While the specifics vary slightly, the abuse

followed similar progressions in each case.    Both boys testified that the

abuse happened primarily in D.R.L.’s home during his caretaking duties, as

well as in his car in empty lots and at the cemetery where D.R.L. worked.

The abuse began for both boys at very young ages with fondling by D.R.L.,

which progressed to mutual masturbation, oral sex, and culminated in D.R.L.

performing anal sex upon each of the victims.     Each boy also testified to

D.R.L.’s coercive nature, stating that he acted as if they were “buddies” and

that his actions were normal. Both boys testified that the abuse in D.R.L.’s

home generally occurred while others were present in the household.

Furthermore, neither boy reported the abuse out of fear of D.R.L., though

only G.B. remembers actually being threatened by D.R.L.

     In arguing that G.B.’s testimony falls under the common plan

exception of Rule 404(b), the Commonwealth relies on Commonwealth v.

Frank, 577 A.2d 609 (1990).      There, a counselor working with troubled

orphans was charged with molesting one of his patients.         At trial, the

Commonwealth sought to introduce testimony from six other patients who

alleged similar abuse by the defendant, the most recent of which occurred

                                    -6-
J-A33006-16



approximately three to four years prior to the conduct giving rise to the

charges.     The trial court allowed the testimony and the counselor was

ultimately convicted.   This Court, in affirming the trial court, set forth the

appropriate standard for determining the application of the common plan

exception:

     [A] determination of whether evidence is admissible under the
     common plan exception must be made on a case by case basis
     in accordance with the unique facts and circumstances of each
     case. However, we recognize that in each case, the trial court is
     bound to follow the same controlling, albeit general, principles of
     law. When ruling upon the admissibility of evidence under the
     common plan exception, the trial court must first examine the
     details and surrounding circumstances of each criminal incident
     to assure that the evidence reveals criminal conduct which is
     distinctive and so nearly identical as to become the signature of
     the same perpetrator. Relevant to such a finding will be the
     habits or patterns of action or conduct undertaken by the
     perpetrator to commit crime, as well as the time, place, and
     types of victims typically chosen by the perpetrator. Given this
     initial determination, the court is bound to engage in a careful
     balancing test to assure that the common plan evidence is not
     too remote in time to be probative. If the evidence reveals that
     the details of each criminal incident are nearly identical, the fact
     that the incidents are separated by a lapse of time will not likely
     prevent the offer of the evidence unless the time lapse is
     excessive. Finally, the trial court must assure that the probative
     value of the evidence is not outweighed by its potential
     prejudicial impact upon the trier of fact. To do so, the court
     must balance the potential prejudicial impact of the evidence
     with such factors as the degree of similarity established between
     the incidents of criminal conduct, the Commonwealth’s need to
     present evidence under the common plan exception, and the
     ability of the trial court to caution the jury concerning the proper
     use of such evidence by them in their deliberations.




                                     -7-
J-A33006-16



Id. at 614. The Court rejected the defendant’s argument that evidence of

the uncharged acts occurring three to four years prior were too remote in

time to be admissible.

      Here, as in Frank, the abuse of G.B. ended approximately three years

prior to when the abuse of K.R. began. “While remoteness in time is a factor

to be considered in determining the probative value of other crimes evidence

under [the “common scheme”] theory, the importance of the time period is

inversely   proportional   to   the   similarity   of   the   crimes   in   question.”

Commonwealth v. Miller, 664 A.2d 1310, 1319 (Pa. 1995).                     As noted

supra, the similarity between D.R.L.’s crimes against the two boys is

striking. The boys were roughly the same age range during the abuse. The

nature of the sexual contact between D.R.L. and the boys followed the same

progression.    Both boys were abused while D.R.L. acted in the role of

caregiver. Finally, the location of the abuse – D.R.L.’s residence and car, as

well as the cemetery at which he worked – was the same in each case.

Since the pattern of abuse committed upon his victims was so distinct, we

cannot find that the trial court abused its discretion in concluding that the

three-year time period between the victimization of G.B. and K.R. was not so

excessive as to render G.B.’s testimony overly prejudicial.

      With regard to prejudice, we have previously noted:

      Whether relevant evidence is unduly prejudicial is a function in
      part of the degree to which it is necessary to prove the case of
      the opposing party. Here, the Commonwealth was required to
      prove that a non-consensual touching occurred, the purpose of
      which was sexual gratification. [The defendant] denies that the

                                        -8-
J-A33006-16


      touching occurred, and since the uncorroborated testimony of
      the alleged victim in this case might reasonably lead a jury to
      determine that there was a reasonable doubt as to whether [the
      defendant] committed the crime charged, it is fair to conclude
      that the other crimes evidence is necessary for the prosecution
      of the case. Without doubt, the other crimes evidence would be
      prejudicial to [the defendant.] That is what it is designed to be.
      On the facts of this case, however, it is not unduly prejudicial, as
      it is required for the Commonwealth’s case.

Commonwealth v. Ardinger, 839 A.2d 1143, 1145–46 (Pa. Super. 2003)

(citation omitted).

      Similarly, here, the Commonwealth was faced with the task of proving

its case based on the uncorroborated testimony of K.R., whose abuse had

occurred between fifteen and twenty years prior. D.R.L. denied the abuse

had occurred.    Accordingly, G.B.’s testimony, demonstrating a pattern of

conduct by D.R.L., was instrumental to the Commonwealth proving, beyond

a reasonable doubt, that D.R.L. had committed the crimes of which he was

accused.    Under these circumstances, we cannot say that the probative

value of G.B.’s testimony was outweighed by its prejudicial effect.

      Lastly, we note that the trial court gave the jury a limiting instruction

regarding the narrow purpose for which they were to consider the evidence

of G.B.’s abuse. Specifically, the court instructed the jury as follows:

      Now, you heard evidence tending to show that the defendant
      was guilty of other criminal conduct for which he is not on trial.
      I am speaking of the testimony of [G.B.] The evidence – or that
      evidence is before you for a limited purpose, that is, the purpose
      of tending to show a common scheme or plan on behalf of the
      defendant. This evidence must not be considered by you in any
      way other than for the purpose I have just stated. You must not
      regard this evidence as showing that the defendant is a person



                                     -9-
J-A33006-16


      of bad character or criminal tendency from which you might be
      inclined to infer guilt.

N.T. Trial, 10/22/15, 89-90. It is well-settled that the jury is presumed to

follow the trial court’s instructions.   Commonwealth v. Cash, 137 A.3d

1262, 1280 (Pa. 2016), citing Commonwealth v. Travaglia, 28 A.3d 868,

882 (Pa. 2011).

      For all of the foregoing reasons, we find that the trial court did not

abuse its discretion in admitting the prior bad act testimony of G.B. under

the common plan exception pursuant to Rule 404(b).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/17/2017




                                     - 10 -
