J-S10040-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellant

                   v.

JUSTIN CORLISS

                        Appellee                   No. 2091 EDA 2014


            Appeal from the Suppression Order June 17, 2014
             In the Court of Common Pleas of Monroe County
           Criminal Division at No(s): CP-45-CR-0001749-2013

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellant

                   v.

JUSTIN CORLISS

                        Appellee                   No. 2105 EDA 2014


                   Appeal from the Order June 17, 2014
             In the Court of Common Pleas of Monroe County
           Criminal Division at No(s): CP-45-CR-0002173-2013


BEFORE: GANTMAN, P.J., STABILE, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                            FILED JULY 14, 2015

     Appellant, the Commonwealth of Pennsylvania, appeals from the order

entered in the Monroe County Court of Common Pleas, which denied the

Commonwealth’s motion in limine to admit certain evidence at the trials of

Appellee, Justin Corliss. We reverse and remand for further proceedings.

_________________________

*Retired Senior Judge assigned to the Superior Court.
J-S10040-15


     The relevant facts and procedural history of this appeal are as follows.

Appellee operated a pet store in Monroe County.          In 1993, Appellee

commenced a romantic relationship with his coworker, K.V.            Shortly

thereafter, Appellee moved into the residence K.V. shared with her minor

daughter, R.V.     In 1995, when R.V. was approximately nine years’ old,

Appellee began to molest R.V. At first, Appellee would tickle R.V. when they

played together.    Appellee’s behavior escalated, however, and he began

placing his hands down R.V.’s pants. Appellee digitally penetrated R.V. on

multiple occasions between 1995 and 1997. The abuse occurred at K.V.’s

residence, often while K.V. was in another room. On one occasion, Appellee

inappropriately touched R.V. during a car trip to New York. The molestation

continued until 1997, when Appellee moved out of K.V.’s residence. R.V. did

not immediately report the abuse.

     In 1996, fourteen-year-old D.G. began to work at Appellee’s pet store.

D.G.’s father was a regular customer at the pet store, and Appellee had

known D.G. since she was eleven years’ old. After D.G. started working at

the pet store, Appellee would tickle her. Appellee’s behavior escalated, and

he began placing his hands down D.G.’s pants.      Eventually, Appellee and

D.G. engaged in sexual intercourse.   Appellee also performed oral sex on

D.G. on multiple occasions.

     The abuse occurred at the pet store during regular business hours. On

two occasions, D.G.’s twelve-year-old friend witnessed the sexual activity.


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Appellee also fondled D.G. during car trips to New York. D.G. testified that

Appellee took her on these trips “almost every single Monday” to pick up

supplies for the pet store. (N.T. Hearing, 3/18/14, at 31). In addition to the

liaisons at work, Appellee molested D.G. at K.V.’s residence at least once.

In 1997, D.G.’s mother learned about the abuse and immediately informed

police.

      At No. 743 of 1997, the Commonwealth charged Appellee with multiple

offenses related to the molestation of D.G. Following a trial in 1998, a jury

convicted Appellee of two (2) counts of statutory sexual assault and one (1)

count each of aggravated indecent assault, indecent assault, and corruption

of minors.    On August 20, 1998, the court sentenced Appellee to an

aggregate term of four (4) to ten (10) years’ imprisonment.        This Court

affirmed the judgment of sentence          on November 30, 1999.          See

Commonwealth v. Corliss, 750 A.2d 366 (Pa.Super. 1999) (unpublished

memorandum).

      Prior to the start of the 1998 trial, Appellee met C.T. at the pet store.

Appellee and C.T. married, and C.T. became pregnant before Appellee’s

sentencing hearing.   C.T. gave birth to Appellee’s daughter, C.C., in 1999

while Appellee was incarcerated. Appellee remained incarcerated until 2008.

Upon his release, Appellee returned to live with C.T. and C.C. C.T. had no

concerns about Appellee being around C.C., because Appellee had convinced

C.T. that he was actually innocent of the charges pertaining to D.G.


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       When Appellee would play with C.C., C.T. noticed that Appellee tickled

the child and scratched the child’s back. The tickling started to bother C.C.,

and she asked Appellee not to touch her, but C.T. did not intervene.

Appellee’s relationship with C.T. ended in 2010, after C.T. discovered that

Appellee was having an affair with another teenager.           In 2013, C.C.

informed C.T. that Appellee had molested her. C.C. claimed that Appellee

would put his hands down her pants and touch her vagina, exposed his penis

to C.C., and attempted to force the child to perform oral sex on him.

       Police arrested Appellee for the offenses against C.C. in July 2013.

The media reported on Appellee’s arrest, and R.V. saw the coverage. R.V.

decided to contact police and inform them of the abuse she suffered from

1995 until 1997. At No. 1749 of 2013, the Commonwealth charged Appellee

with sex offenses committed against C.C.         At No. 2173 of 2013, the

Commonwealth charged Appellee with sex offenses committed against R.V.1

On September 24, 2013, the Commonwealth informed Appellee that Nos.

1749 and 2173 of 2013 would be joined for trial. Appellee filed counseled

pretrial motions on October 3, 2013, including a motion to sever the cases.

Ultimately, the court granted Appellee’s motion to sever the cases for trial.

       On November 15, 2013, the Commonwealth filed notice of its intent to
____________________________________________


1
  At No. 1748 of 2013, the Commonwealth also charged Appellee with
offenses related to his failure to register with state police pursuant to
Megan’s Law. The matters at No. 1748 of 2013 are not at issue in this
appeal.



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introduce    “other    bad    acts”    evidence,   pursuant   to   Pa.R.E.   404(b).

Specifically, the Commonwealth sought to introduce evidence of the

molestation of C.C. at trial for the offenses against R.V.            Similarly, the

Commonwealth sought to introduce evidence of the molestation of R.V. at

trial for the offenses against C.C.            The Commonwealth also sought to

introduce evidence of the molestation of D.G. at both trials.          On February

24, 2014, the Commonwealth filed a motion in limine, asking the court to

allow the admission of the Rule 404(b) evidence at Appellee’s trials.2          The

court conducted a hearing on March 18, 2014.              At that time, the court

received testimony from K.V. (victim R.V.’s mother), D.G. (prior victim), and

C.T. (victim C.C.’s mother).

____________________________________________


2
  Before the parties litigated the Commonwealth’s motion in limine, Appellee
requested to proceed pro se. On January 15, 2014, the court conducted an
oral colloquy to determine whether Appellee’s waiver of counsel was
knowing, voluntary, and intelligent.        See Pa.R.Crim.P. 121 (stating
defendant can waive right to trial counsel; to ensure defendant’s waiver is
knowing, voluntary, and intelligent, court must confirm defendant
understands right to be represented by counsel, right to free counsel if
indigent, nature and elements of charges, permissible range of sentences
and/or fines, defendant is bound by all rules of procedure, and defendant
faces waiver of defenses, rights, and challenges to certain errors). Following
the colloquy, the court permitted Appellee to proceed pro se. The court also
provided Appellee with standby counsel. Appellee is pro se on appeal. To
avoid an appealable issue arising from subsequent proceedings, however,
the trial court must again colloquy Appellee to confirm his continued waiver
of counsel, regardless of Appellee’s prior waiver or experience with the
criminal justice system. See generally Commonwealth v. McDonough,
571 Pa. 232, 812 A.2d 504 (2002) and Commonwealth v. Houtz, 856 A.2d
119 (Pa.Super. 2004) (explaining and modifying Commonwealth v.
Payson, 723 A.2d 695 (Pa.Super. 1999)).



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       On June 17, 2014, the court entered an order and opinion denying the

Commonwealth’s motion in limine.               The court found the Commonwealth’s

other bad acts evidence was relevant to the pending cases at Nos. 1749 and

2173 of 2013. Further, the court determined the evidence was probative of

a common scheme, plan, or design in the pending cases, and the evidence

was not too remote in time. Nevertheless, the court concluded the probative

value of the evidence did not outweigh its potential for undue prejudice. On

this basis, the court denied the Commonwealth’s motion in limine.3

       The Commonwealth timely filed notices of appeal at Nos. 1749 and

2173 of 2013 on July 16, 2014.4 On July 17, 2014, the court ordered the

Commonwealth to file concise statements of errors complained of on appeal,

pursuant to Pa.R.A.P. 1925(b).             The Commonwealth timely filed Rule

1925(b) statements on July 23, 2014.              The Commonwealth subsequently

filed an application to consolidate the appeals, which this Court granted on

November 17, 2014.
____________________________________________


3
  As part of its order denying the Commonwealth’s motion in limine, the
court also ruled that the Commonwealth could not introduce other bad acts
evidence at No. 1748 of 2013, in the Commonwealth’s prosecution of
Appellee for failing to register under Megan’s Law. The Commonwealth does
not challenge this aspect of the court’s order.
4
  Pursuant to Pa.R.A.P. 311(d), the Commonwealth certified in good faith in
its notices of appeal that the order denying its motion in limine substantially
handicapped the prosecution. Accordingly, this appeal is properly before us
for review. See Commonwealth v. Cosnek, 575 Pa. 411, 836 A.2d 871
(2003) (stating Rule 311(d) applies to pretrial ruling that results in
suppression, preclusion or exclusion of Commonwealth’s evidence).



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      The Commonwealth raises two issues for our review:

         DID THE TRIAL COURT ABUSE ITS DISCRETION IN
         PROHIBITING THE COMMONWEALTH FROM INTRODUCING
         EVIDENCE OF [APPELLEE’S] BAD ACTS BY CONCLUDING
         THAT THE PROBATIVE VALUE DID NOT OUTWEIGH THE
         PREJUDICIAL EFFECT, AFTER CONCLUDING THE EVIDENCE
         WAS RELEVANT AND ADMISSIBLE UNDER THE COMMON
         SCHEME, PLAN, OR DESIGN EXCEPTION TO PA.R.E.
         404(b)?

         DID THE TRIAL COURT ABUSE ITS DISCRETION IN
         PROHIBITING THE COMMONWEALTH FROM INTRODUCING
         EVIDENCE OF [APPELLEE’S] BAD ACTS UNDER THE RES
         GESTAE EXCEPTION TO PA.R.E. 404(b)[?]

(Commonwealth’s Brief at 5).

      “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.”   Commonwealth v. Drumheller, 570 Pa. 117, 135, 808

A.2d 893, 904 (2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2284, 156

L.Ed.2d 137 (2003) (quoting Commonwealth v. Stallworth, 566 Pa. 349,

363, 781 A.2d 110, 117 (2001)). “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. Harris, 884 A.2d 920, 924 (Pa.Super. 2005), appeal

denied, 593 Pa. 726, 928 A.2d 1289 (2007).

      In its first issue, the Commonwealth asserts the trial court denied the

motion   in   limine   based   upon   the   court’s   mistaken   belief   that   the


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Commonwealth does not need evidence of Appellee’s other bad acts to prove

that Appellee committed the offenses at issue in Nos. 1749 and 2173 of

2013.     The Commonwealth emphasizes it has no physical evidence to

corroborate   the    testimony    of   victims,     C.C.       or   R.V.        Although    the

uncorroborated      testimony    of    a   victim      is     enough       to    convict,   the

Commonwealth anticipates Appellee will attack the victims’ credibility with

their failure to make prompt complaints against him.                  The Commonwealth

insists testimony against Appellee from multiple victims in each case would

check Appellee’s challenge about the lack of prompt complaints; thus,

evidence from the other victims is probative and necessary to the

Commonwealth’s case. The Commonwealth also contends:

          [Appellee] denies that the touching occurred, and since the
          uncorroborated testimony of the alleged victim[s] in
          [these] case[s] might reasonably lead a jury to determine
          that there was a reasonable doubt as to whether
          [Appellee] committed the crime[s] charged, it is fair to
          conclude that the other crimes evidence is necessary for
          the prosecution of the case. To hold otherwise would
          effectively nullify Rule 404(b) and make it virtually
          impossible to introduce any bad act evidence in a “he said,
          she said” sexual assault case.

(Commonwealth’s Brief at 21).          The Commonwealth concludes the court

should have granted the motion in limine and allowed the Commonwealth to

introduce its Rule 404(b) evidence during both trials, at Nos. 1749 and 2173

of 2013. We agree.

        Relevance    is   the    threshold       for        admissibility       of   evidence.

Commonwealth v. Cook, 597 Pa. 572, 602, 952 A.2d 594, 612 (2008).

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        Admissibility depends on relevance and probative value.
        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 a material fact.

Drumheller, supra at 135, 808 A.2d at 904 (quoting Stallworth, supra at

363, 781 A.2d at 117-18). “Evidence that is not relevant is not admissible.”

Pa.R.E. 402. “The court may exclude relevant evidence if its probative value

is outweighed by a danger of one or more of the following: unfair prejudice,

confusing the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence.” Pa.R.E. 403.

     Pennsylvania Rule of Evidence 404 governs the admissibility of other

bad acts evidence as follows:

        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, 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

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        evidence the prosecutor intends to introduce at trial.

           Comment:

                                 *     *      *

           Pa.R.E. 404(b)(1) is identical to F.R.E. 404(b)(1). It
           prohibits the use of evidence of other crimes wrongs or
           acts to prove a person’s character.

           Pa.R.E. 404(b)(2), like F.R.E. 404(b)(2), contains a
           non-exhaustive list of purposes, other than proving
           character, for which a person’s other crimes wrongs or
           acts may be admissible.         But it differs in several
           aspects. First, Pa.R.E. 404(b)(2) requires that the
           probative value of the evidence must outweigh its
           potential for prejudice. When weighing the potential for
           prejudice of evidence of other crimes, wrongs, or acts,
           the trial court may consider whether and how much
           such potential for prejudice can be reduced by
           cautionary instructions.       See Commonwealth v.
           LaCava, 542 Pa. 160, 666 A.2d 221 (1995). When
           evidence is admitted for this purpose, the party against
           whom it is offered is entitled, upon request, to a limiting
           instruction. See Commonwealth v. Hutchinson, 571
           Pa. 45, 811 A.2d 556 (2002). Second, the federal rule
           requires the defendant in a criminal case to make a
           request for notice of the prosecutor’s intent to offer
           evidence of other crimes, wrongs or acts. This issue is
           covered in Pa.R.E. 404(b)(3) which is consistent with
           prior Pennsylvania practice in that the requirement that
           the prosecutor give notice is not dependent upon a
           request by the defendant.

Pa.R.E. 404(b)(1)-(3) and Comment.            Thus, Rule 404(b) permits the

admission of crimes or other acts evidence under certain instances.

Commonwealth v. Russell, 938 A.2d 1082, 1092 (Pa.Super. 2007).

Further, Rule 404(b) “is not limited to evidence of crimes that have been

proven beyond a reasonable doubt in court.         It encompasses both prior


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crimes and prior wrongs and acts, the latter of which, by their nature, often

lack ‘definitive proof.’” Commonwealth v. Ardinger, 839 A.2d 1143, 1145

(Pa.Super. 2003) (quoting Commonwealth v. Lockcuff, 813 A.2d 857, 861

(Pa.Super. 2002), appeal denied, 573 Pa. 689, 825 A.2d 638 (2003)).

      “[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).   Nevertheless, “[e]vidence may be admissible in certain

circumstances where it is relevant for some other legitimate purpose and not

utilized solely to blacken the defendant’s character.” Id. Specifically, other

crimes evidence is admissible if offered for a non-propensity purpose, such

as proof of an actor’s knowledge, plan, motive, identity, or absence of

mistake or accident.     Commonwealth v. Chmiel, 585 Pa. 547, 889 A.2d

501 (2005), cert. denied, 549 U.S. 848, 127 S.Ct. 101, 166 L.Ed.2d 82

(2006).   When offered for a legitimate purpose, other acts evidence is

admissible if its probative value outweighs its potential for unfair prejudice.

Commonwealth v. Hairston, 624 Pa. 143, 84 A.3d 657 (2014), cert.

denied, ___ U.S. ___, 135 S.Ct. 164, 190 L.Ed.2d 118 (2014).

      “The particular prejudice that Rule 404(b)(3) seeks to prevent is the

misuse of the other-offense evidence−specifically, that jurors might convict

a defendant because they perceive the defendant has a bad character or

propensity to commit crimes.”      Commonwealth v. Cascardo, 981 A.2d


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245, 251 (Pa.Super. 2009), appeal denied, 608 Pa. 652, 12 A.3d 750

(2010). See also Pa.R.E. 403 Comment (stating: “‘Unfair prejudice’ means

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”).

        Additionally, when weighing the potential for prejudice, a
        trial court may consider how a cautionary jury instruction
        might ameliorate the prejudicial effect of the proffered
        evidence.

        However, evidence will not be prohibited merely because it
        is harmful to the defendant.        Exclusion is limited to
        evidence so prejudicial that it would inflame the jury to
        make a decision based upon something other than the
        legal propositions relevant to the case.

Commonwealth v. Page, 965 A.2d 1212, 1220 (Pa.Super. 2009), appeal

denied, 621 Pa. 665, 74 A.3d 125 (2013) (internal citations and quotation

marks omitted).

     A common plan, scheme, or design may be relevant to establish any

element of a crime. Commonwealth v. Einhorn, 911 A.2d 960 (Pa.Super.

2006), appeal denied, 591 Pa. 723, 920 A.2d 831 (2007).

        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

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        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.

Commonwealth v. Tyson, 2015 PA Super 138, 7-8 (filed June 10, 2015)

(en banc) (quoting Commonwealth v. G.D.M., Sr., 926 A.2d 984, 987

(Pa.Super. 2007), appeal denied, 596 Pa. 715, 944 A.2d 756 (2008)).

     “While remoteness in time is a factor to be considered in determining

the probative value of…evidence under this theory, the importance of the

time period is inversely proportional to the similarity of the [acts] in

question.”   Commonwealth v. O’Brien, 836 A.2d 966, 971 (Pa.Super.

2003), appeal denied, 577 Pa. 695, 845 A.2d 817 (2004).               See also

Commonwealth v. Luktisch, 680 A.2d 877 (Pa.Super. 1996) (holding

common scheme exception justified admission of testimony regarding

defendant’s previous sexual assaults despite six-year lapse between periods

of abuse, where three victims were nearly same age, victims were either

daughter or step-daughter of defendant and lived with him when acts

occurred; and pattern of molestation—from improper touching to oral sex to

sexual intercourse—was highly similar with respect to two victims).

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     Instantly, the trial court issued a lengthy opinion with its order denying

the Commonwealth’s motion in limine.         In its opinion, the court first

determined that the Commonwealth’s other bad acts evidence was relevant:

        In case [No. 1749 of 2013], [Appellee] is charged with
        various sex offenses against C.C. that occurred in 2009
        and/or 2010. The evidence sought to be introduced by the
        Commonwealth is testimony of another victim, who was a
        minor at the time, as to [Appellee’s] alleged sexual abuse
        of her.    This evidence tends to make the fact that
        [Appellee] committed a similar crime more probable. If
        the Commonwealth’s allegations in the present case are
        accepted as true, the evidence of the incidents that
        occurred in 1995-1997 as to R.V. (charged in case [No.
        2173 of 2013]) when she was 9-11 years’ old would be
        relevant in demonstrating [Appellee’s]…common scheme,
        plan or design to sexually assault young girls…. This is
        also true of the conviction in [No. 743 of 1997] where the
        victim was sexually assaulted by [Appellee] when she was
        14 and [Appellee] had contact with her starting when she
        was 11 years’ old. Accordingly, we hold that the bad acts
        involving incidents of sexual abuse by [Appellee]…are
        relevant.

(See Trial Court Opinion, filed June 17, 2014, at 6.) The court also found

the evidence was probative of a common scheme, plan or design in the

pending cases:

        The factual similarities of the allegations involving R.V.
        [(No. 2173 of 2013)], D.G. [(No. 743 of 1997)], and C.C.
        [(No. 1749 of 2013)] are somewhat convincing.          The
        similarities are that all of the charges in each of these
        three matters involve [Appellee] sexually assaulting young
        girls.     All of the victims share similar personal
        characteristics. Each girl was white, between the ages of 9
        and 14, and each girl was in a close family relationship or
        in a position of trust with [Appellee]. For instance, C.C.
        and R.V. were the daughters of women [Appellee] lived
        with and he lived with the victims too. D.G. came into
        [Appellee’s] store as a customer with her family, and

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       [Appellee] quickly befriended her.2 In the two pending
       sexual assault cases, [Appellee] began a relationship with
       the victims’ mothers, moved in with them, and soon after,
       began sexually assaulting them.3 In the case of D.G., for
       which [Appellee] was convicted, he maintained a very
       close relationship with D.G. and told her he loved her. In
       all three cases, [Appellee] was in a position of trust over
       the victims and he continued assaulting them until he
       moved out, or in the case of D.G., was arrested by the
       police.
          2
            We note that D.G. was 14 when [Appellee] had oral
          and vaginal intercourse with her, but [Appellee]
          started touching and tickling her when she was as
          young as 11 and 12 years old, and putting his hand
          inside her clothes when she was 12.
          3
            We note [Appellee] initially moved in with C.C.’s
          mother after leaving R.V.’s mother’s house, but C.C.
          was not yet born.       But ten years later, upon
          [Appellee’s] release from prison, he moved back in
          with C.C.’s mother and then allegedly began
          assaulting C.C. soon thereafter.

       [Appellee] met R.V.’s and C.C.’s mothers through work,
       and he met D.G. at his own store. [Appellee] began
       touching all three girls by tickling them. In all three
       matters, it progressed to placing his hands under their
       clothes.    The touching continued until he eventually
       touched their vaginas. [Appellee] eventually had vaginal
       intercourse with one victim. In all three cases, the order
       of progression was the same; [Appellee] just progressed
       further in some cases.

       In R.V. and D.G.’s case, [Appellee] drove the victims with
       him to New York to obtain pet supplies for his store, and
       during the trips, he sexually assaulted the girls. In the
       case of both R.V. and C.C., the incidents took place in their
       home, often while the victims’ mothers were present in
       another room. [Appellee] had sexual encounters with D.G.
       in his store during business hours when anyone could walk
       into the store. On at least one occasion, [Appellee] had
       sex with D.G. while a friend of D.G. was present and
       watched. On another occasion, [Appellee] took D.G. to

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         R.V.’s house, where he was living at the time, and had sex
         with her there. Anyone could have come home at that
         time. This degree of similarity is an important factor in
         determining the admissibility of other crimes or acts as
         relevant to show a common scheme or plan.

(Id. at 20-21).

      Nevertheless, the court concluded the probative value of the evidence

did not outweigh its potential for undue prejudice. The court emphasized,

“[T]he Commonwealth does not need evidence of the other two cases to

prove the facts in each case.” (Id. at 30). Further, the court insisted:

         [The admission of] evidence of the matters involving R.V.
         and the 1998 conviction into the case involving C.C., and
         vice versa, would inflame a jury into declaring guilt based
         upon the other allegations. A prior conviction is extremely
         prejudicial and rarely allowed as evidence in any criminal
         case due to the prejudicial effect on a jury. Specifically, in
         this matter, [Appellee’s] prior conviction[s] [were] for
         statutory sexual assault, aggravated indecent assault,
         indecent assault, and corruption of minors in a matter
         involving a 14-year-old victim.        [Appellee] ultimately
         served ten years for the offense[s]. Evidence of [these]
         conviction[s], events surrounding the conviction[s], and
         the resulting sentence would severely prejudice the jury.
         The jury could certainly convict on the theory that if he did
         it before, he could do it again. A cautionary instruction
         would have little effect on a jury due to this evidence.

(Id. at 31).

      Here, the trial court ignored the dearth of physical evidence to support

the victims’ accounts of the molestation.       Likewise, the court does not

mention Appellee’s repeated denials of the allegations against him.        Thus,

the uncorroborated testimony of each alleged victim could lead a jury to

reasonable doubt on whether Appellee committed the offenses against that

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victim. Under these circumstances, the other bad acts evidence is necessary

for the Commonwealth’s prosecutions.         See Commonwealth v. Gordon,

543 Pa. 513, 673 A.2d 866 (1996) (holding evidence of defendant’s prior

convictions for indecent assault was not unduly prejudicial in prosecution for

another indecent assault; evidence was relevant to prove, inter alia,

common scheme or plan, and evidence was necessary for prosecution of

case since defendant denied nonconsensual touching of victim occurred, and

victim’s testimony was uncorroborated).        See also Commonwealth v.

Aikens, 990 A.2d 1181 (Pa.Super. 2010), appeal denied, 607 Pa. 694, 4

A.3d 157 (2010) (holding evidence of defendant’s prior sexual abuse of his

daughter was admissible to show common scheme, design, or plan in

prosecution for corruption of minor, endangering welfare of child, and

indecent assault; both victims were defendant’s biological daughters, both

victims were of similar age when abuse occurred, defendant initiated contact

with both victims during overnight visits to his apartment, and defendant

showed pornographic movie to both victims); O’Brien, supra (holding

evidence of defendant’s prior sexual assaults of children was admissible to

show common scheme, plan or design in prosecution for sexual assault of

minor; all charges stemmed from defendant’s sexual assaults on young

boys, all victims shared similar personal characteristics, crimes were not too

remote in time, and probative value of other crimes evidence outweighed

prejudicial   effect).   We   conclude   the   court   erred   in   denying   the


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Commonwealth’s motion in limine.               Based upon the foregoing, we reverse

that portion of the order denying the Commonwealth’s motion in limine to

admit other bad acts evidence at Nos. 1749 and 2173 of 2013, and we

remand for further proceedings.5, 6

       Order reversed; case remanded for further proceedings. Jurisdiction is

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2015

____________________________________________


5
  Due to our resolution of the Commonwealth’s first issue, we need not
address the second claim raised on appeal.
6
   In August 2014, Appellee filed two pro se motions to dismiss the
Commonwealth’s appeals for lack of jurisdiction. On September 30, 2014,
this Court denied Appellee’s motions without prejudice to Appellee’s right to
raise identical issues before the merits panel. Appellee’s brief on appeal
again raises his challenges to subject matter jurisdiction. Specifically,
Appellee alleges certain deficiencies with his preliminary hearing as well as
violations of the statutes of limitations. The certified record reveals Appellee
raised these arguments with the trial court, which denied relief. The court
also denied Appellee’s pro se motion to certify interlocutory order for appeal,
where Appellee sought appellate review of the same claims he now attempts
to raise in this appeal. On this record, we deny Appellee’s pro se motions to
dismiss. See Pa.R.A.P. 341 (explaining appeal may be taken from final
order; final order is any order that disposes of all claims and parties, is
expressly defined as final order by statute, or is entered as final order
pursuant to Rule 341(c)).



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