J-A23005-13


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

WILLIAM J. LYNN,

                            Appellant                   No. 2171 EDA 2012


         Appeal from the Judgment of Entered Sentence July 24, 2012
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0003530-2011


BEFORE: BENDER, P.J.E., DONOHUE, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                       FILED December 22, 2015

        Appellant, William J. Lynn, appeals from the judgment of sentence of 3

– 6 years’ incarceration, imposed following his conviction for endangering

the welfare of children (EWOC).1          The instant case is on remand from our

Supreme Court, see Commonwealth v. Lynn, 114 A.3d 796 (Pa. 2015),

for consideration of issues originally raised but not decided by our Court,

see Commonwealth v. Lynn, 83 A.3d 434 (Pa. Super. 2013). After careful

review, we conclude that the trial court abused its discretion by admitting a

high volume of unfairly prejudicial other-acts evidence and, on that basis,

we vacate Appellant’s judgment of sentence and remand for a new trial.

                                Factual Background

____________________________________________


1
    18 Pa.C.S. § 4304.
J-A23005-13



Appellant, Monsignor William J. Lynn, served as Secretary for Clergy

(“Secretary”) for the Archdiocese of Philadelphia (“Archdiocese”) from June

of 1992 until June of 2004. During that time, Appellant was responsible for,

inter alia, handling clergy sexual abuse issues that arose within the

Archdiocese.   In that capacity, Appellant supervised a priest, Edward V.

Avery (“Avery”), who molested a ten-year-old altar boy at St. Jerome’s

Parish in 1999.   In his capacity as Secretary, Appellant placed Avery in a

rectory at St. Jerome’s following allegations of sexual abuse that came to

light in 1992, regarding Avery’s conduct at another parish between 1978 and

1981. The jury in this case ultimately convicted Appellant of EWOC for his

deficient supervision of Avery.   A full summary of the facts relating to

Appellant’s supervision of Avery can be found in our December 26, 2013

Opinion. See Lynn, 83 A.3d at 437-45. Additionally, our Supreme Court

also provided its own summary of this evidence, and related matters, in its

April 27, 2015 decision. See Lynn, 114 A.3d at 798-808.

                            Procedural History

     As we noted in our previous opinion:

           This case was initiated by a criminal complaint charging
     Appellant with two counts each of EWOC, 18 Pa.C.S. § 4304, and
     conspiracy to commit EWOC, 18 Pa.C.S. § 903, relating to his
     supervision of Avery and another priest, Reverend James
     Brennan (“Brennan”). Initially, both Avery and Brennan were
     scheduled to be tried alongside Appellant as co-defendants.
     However, Avery pled guilty to involuntary deviate sexual
     intercourse[, 18 Pa.C.S. § 3123,] and conspiracy to commit
     EWOC on March 22, 2012, after the jury had been selected but



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      before the Commonwealth began presenting its case. Brennan
      remained as Appellant's co-defendant until the case concluded.

            Appellant's and Brennan's jury trial commenced on March
      26, 2012. The Commonwealth rested its case on May 17, 2012
      and, at that time, the trial court granted Appellant's motion for
      judgment of acquittal with regard to the Brennan-related
      conspiracy count, but denied the motion with respect to the
      remaining counts. The trial ended on June 22, 2012, when the
      jury returned a verdict of guilty with respect to the Avery-related
      EWOC charge, and acquitted him of the Avery-related conspiracy
      and Brennan-related EWOC charges.17 Appellant did not file
      post-sentence motions.
                                      ___
         17
           The jury failed to reach a verdict on any of the charges
         pending against Brennan.
                                    ___

            On July 24, 2012, the trial court sentenced Appellant to a
      term of 3–6 years' incarceration for EWOC, graded as a third-
      degree felony.18 Appellant filed a timely notice of appeal on
      August 8, 2012, and complied in a timely fashion with the trial
      court's order to file a concise statement of errors complained of
      on appeal pursuant to Pa.R.A.P. 1925(b). The trial court
      eventually filed its 1925(a) opinion on April 12, 2013.
                                      ___
         18
            EWOC is a third-degree felony, rather than a first-
         degree misdemeanor, “where there is a course of conduct
         of endangering the welfare of a child[.]” 18 Pa.C.S. §
         4304(b).
                                  ___

Lynn, 83 A.3d at 445.

      Appellant originally presented ten questions for our review, which fall

generally into four categories: First, Appellant challenged the sufficiency of

the evidence supporting his conviction. Appellant’s Brief, at 16-40. Second,

Appellant asserted the trial court abused its discretion by improperly

charging the jury. Id. at 40-54. Third, he claimed the trial court abused its



                                     -3-
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discretion by improperly admitting evidence of twenty-one instances of

other-acts under Pa.R.E. 404(b)(2).        Id. at 54-68.    Fourth, Appellant

claimed the trial court abused its discretion when it denied his motion for a

mistrial following prosecutorial misconduct that purportedly occurred during

the Commonwealth’s closing argument. Id. at 68-70.

      In an opinion filed on December 26, 2013, this Court reversed

Appellant’s conviction on sufficiency grounds, concluding that Appellant was

not a “supervisor” within the meaning of the EWOC statute and, therefore,

that he could not be charged as a principal thereunder. See Lynn, 83 A.3d

at 453-54. Additionally, we held that there was insufficient evidence to hold

him accountable as an accomplice to Avery’s commission of an EWOC

offense. Id. at 457. Consequently, this Court did not address Appellant’s

non-sufficiency related claims.    This Court also did not address certain

aspects of Appellant’s sufficiency-related claims, particularly with respect to

whether Appellant possessed the requisite mens rea to commit EWOC as a

principal.

      Following our decision, the Commonwealth petitioned Pennsylvania’s

Supreme Court for allowance of appeal.      The Supreme Court granted that

petition on May 8, 2014, accepting for review the following issues:

      (1) Was the evidence insufficient to prove endangering the
      welfare of children because defendant did not have direct contact
      with children?

      (2) Assuming arguendo defendant could not endanger the
      welfare of children in his individual capacity, but as part of a
      general scheme placed a known sexual predator under his

                                     -4-
J-A23005-13


      control in a position that promoted the risk of further sexual
      assaults, was the evidence sufficient to convict him as an
      accomplice?

Commonwealth v. Lynn, 91 A.3d 1233 (Pa. 2014) (per curiam order).

      In an opinion issued on April 27, 2015, the Supreme Court reversed

our December 26, 2013 decision, finding that this Court “erred in holding

that the EWOC statute required evidence of direct supervision of children

and overturning Appellee's conviction on that basis[,]” Lynn, 114 A.3d at

827, because “the statute is plain and unambiguous that it is not the child

that Appellee must have been supervising, but the child's welfare,”      id. at

823. The Supreme Court declined to answer the second issue upon which it

granted the Commonwealth’s petition for allowance of appeal, because the

Court ostensibly found that “the Commonwealth's evidence was sufficient to

sustain the conviction for EWOC as a principal.”     Id. at 827.   Finally, the

Supreme Court remanded “for further proceedings consistent with” its

opinion. Id.

      Following our Supreme Court’s decision, the parties flooded this Court

with numerous filings seeking to litigate, inter alia, whether this panel could

still address aspects of Appellant’s sufficiency claim(s) that were left

unanswered by our December 26, 2013 opinion, and which were ostensibly

outside the scope of our Supreme Court’s granting of the Commonwealth’s

petition for allowance of appeal. See Appellant’s Application for Additional

Briefing, 5/11/2015; and see Commonwealth’s Answer to Application for

Additional Briefing, 5/18/2015. In response, by order dated June 16, 2015,


                                     -5-
J-A23005-13



this Court directed the parties, pursuant to Appellant’s request, to provide

supplemental briefing on the matter.      See Order, 6/16/15, at 1-3.      The

parties complied in a timely fashion; Appellant filed a supplemental brief on

June 30, 2015, and the Commonwealth filed its reply on August 5, 2015.

     Appellant’s original brief presented the following questions for our

review:

     1. Whether the pre-amended version of 18 Pa.C.S.A. § 4304
     (endangering the welfare of children) (“EWOC”) did not properly
     apply to Appellant, Msgr. William Lynn, who was not a parent,
     guardian or other person supervising the welfare of a child and
     who had no direct involvement with the child, never met and
     never knew the child, and whether Appellant’s trial as a
     supervisor under EWOC was a violation of the ex post facto
     clauses of the U.S. and Pennsylvania Constitutions?

     2. Whether the trial court erred in allowing the jury to deliberate
     on whether Appellant can be liable for EWOC as a principal or an
     accomplice when the Commonwealth failed to provide sufficient
     evidence to meet its burden of proving that Appellant violated
     each element of the crime, as either a principal or an
     accomplice?

     3. Whether the lower court's refusal to provide a jury instruction
     on the definition of person supervising the welfare of a child
     consistent with Commonwealth v. Brown, 721 A.2d 1105 (Pa.
     Super. 1998)[,] and the model jury charge was reversible error
     mandating a new trial?

     4. Whether the lower court's jury charge on the EWOC element
     of “knowingly,” which provided two directly conflicting
     definitions, was reversible error mandating a new trial?

     5. Whether the lower court’s jury charge on the EWOC element
     of “duty of care,” which presupposed that the duty of care
     element was met and provided examples from civil, rather than
     criminal, law was reversible error mandating a new trial?

     6. Whether the lower court’s undue emphasis on accomplice
     liability, as well as an erroneous definition of accomplice intent,

                                    -6-
J-A23005-13


      during its jury charge was reversible error mandating a new
      trial?

      7. Whether the lower court’s jury charge about Appellant’s
      liability for endangering other unnamed minors supervised by
      Edward Avery, when there is no support in Pennsylvania law that
      EWOC applies to unknown and unknowable children, is reversible
      error mandating a new trial?

      8. Whether the lower court’s jury instruction on whether
      endangering the welfare of a child behavior must be criminal,
      which permitted the jury in this case to wrongly infer that
      Appellant violated EWOC, even though there is no underlying
      criminal conduct that Appellant was aware of, was reversible
      error mandating a new trial?

      9. Whether it was abuse of discretion for the lower court to
      admit evidence of acts of abuse by 21 other priests, dating to
      the late 1940's, pursuant to [Pa.R.Evid. 404(b)], and did the
      [c]ourt err in holding that this evidence passed the
      probative/prejudicial test of Pa.R.Evid. 403?

      10. Whether it was abuse of discretion for the lower court not to
      grant a mistrial on the basis of the Commonwealth’s highly
      prejudicial summation which included numerous statements not
      supported by the trial record?

Appellant’s Brief, at 4-5.

                   Collateral Estoppel/Issue preclusion

      The first matter we will address is whether Appellant is precluded from

arguing certain sufficiency claims due to the prior decision of our Supreme

Court. It is undisputed that Appellant cannot re-litigate his sufficiency claim

as it pertains to the matter of statutory interpretation that formed the

explicit basis of the Supreme Court’s reversal of our prior decision.      The

Supreme    Court specifically granted    the   Commonwealth’s petition for

allowance of appeal on that basis, and decided squarely against this Court’s

interpretation of the EWOC statute.


                                      -7-
J-A23005-13



     Appellant   contends,   however,     that   his   statutory   construction

argument—based on the theory that he was not within the class of persons

held accountable under the statute—was not the only sufficiency issue that

he raised regarding his culpability as a principal to EWOC when his appeal

was originally before this Court.   At that time, Appellant also presented

claims pertaining to the mens rea element of EWOC, i.e., whether Appellant

knowingly endangered the welfare of children and, separately, whether he

owed a duty of care to the victim. Appellant argues that he is now entitled

to a decision on the merits of these ostensibly distinct sufficiency claims

because this Court did not address them in our December 26, 2013 opinion,

and because they were not included within the Supreme Court’s granting of

the Commonwealth’s petition for allowance of appeal. The Commonwealth

regards our Supreme Court’s decision as precluding Appellant from asserting

any other sufficiency claims on remand.

     Generally speaking,

     the doctrine of collateral estoppel, or issue preclusion, applies
     where the following four prongs are met:

        (1) An issue decided in a prior action is identical to one
        presented in a later action;

        (2) The prior action resulted in a final judgment on the
        merits;

        (3) The party against whom collateral estoppel is asserted
        was a party to the prior action, or is in privity with a party
        to the prior action; and

        (4) The party against whom collateral estoppel is asserted
        had a full and fair opportunity to litigate the issue in the
        prior action.

                                    -8-
J-A23005-13



Rue v. K-Mart Corp., 713 A.2d 82, 84 (Pa. 1998) (emphasis added).

      Initially, we note that the “prior action” for purposes of our analysis is

the Supreme Court’s April 27, 2015 opinion. Also, there is no dispute with

regard to the third prong of the Rue issue-preclusion test, as Appellant was

clearly a party to that action.           However, our resolution of the remaining

three prongs depends on how broadly or narrowly Appellant’s sufficiency

claims are construed and, ultimately, on the nature of the Supreme Court’s

decision itself.

      Appellant was convicted of a single offense: EWOC. Appellant argues

that his mens rea and duty-of-care sufficiency claims pertaining to that

offense are stand-alone issues.           Under that view, Appellant construes the

Supreme Court’s prior decision in this case as having left these issues

unresolved on the merits and, therefore, now available for consideration on

remand.     The Commonwealth, on the other hand, portrays Appellant’s

multiple sufficiency claims as a single sufficiency issue subdivided into

multiple arguments.          As such, the Commonwealth contends that the

Supreme Court’s decision constituted a final judgment on the merits of

Appellant’s sufficiency issue, which collaterally estops Appellant from raising

alternative sufficiency arguments on remand. In our view, both theories are

plausible interpretations of the prior history of this case.

      We recognize that this Court did not address Appellant’s mens rea and

duty-of-care       sufficiency   claims    in   our   December   26,   2013   opinion.

Furthermore, it is apparent that the Supreme Court did not expressly

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J-A23005-13



address those matters in its April 27, 2015 opinion, nor did the High Court

grant review to specifically address them.       However, we are nonetheless

constrained to agree with the Commonwealth that Appellant cannot now

litigate those claims on remand. In doing so, however, we decline to adopt

the Commonwealth’s reasoning that all sufficiency matters pertaining to the

same offense constitute a single sufficiency issue composed of multiple

arguments.    Rather, we look to the Supreme Court’s decision itself and

conclude that, by the manner in which it disposed of the issues accepted for

review, the Supreme Court effectively precluded Appellant from arguing his

mens rea and duty-of-care claims on remand.

      As noted above, our Supreme Court granted review of two questions,

the first pertaining to Appellant’s culpability as a principal in regard to this

Court’s (incorrect) decision to construe the EWOC statute as requiring direct

supervision of children to impose liability for that offense, and the second

regarding Appellant’s culpability as an accomplice. After resolving the first

question against Appellant, the Court then declined to address the

accomplice    issue,   stating   that    “[b]ecause   we   conclude   that   the

Commonwealth's evidence was sufficient to sustain the conviction for EWOC

as a principal, we do not address the separate contention that the evidence

was insufficient to sustain the EWOC conviction as an accomplice.”       Lynn,

114 A.3d at 827 (emphasis added).

      Because the Supreme Court declined to address the accomplice-to-

EWOC issue on that basis, we must conclude that the High Court intended its

                                        - 10 -
J-A23005-13



decision to be the final judgment as to any other of Appellant’s sufficiency

claims attacking his culpability as the principal offender. It would not make

sense for the Supreme Court to refuse to answer the accomplice question,

after having granted review of the same, if there were remaining principal-

based sufficiency issues left unresolved by its decision.      If the Supreme

Court had anticipated that principal-based sufficiency claims would be

addressed on remand, it should have reached the accomplice question. If

the Supreme Court had reached that question, a decision resolved in the

Commonwealth’s favor (reversing our judgment on accomplice liability)

would render moot any of Appellant’s remaining principal-based sufficiency

claims.2     If resolved in Appellant’s favor (affirming our judgment on

accomplice liability), then Appellant would have, at least, a colorable

argument that the mens rea and duty-of-care sufficiency claims were ripe

for review on remand and not precluded by collateral estoppel. However, by

refusing to answer the accomplice question at all, the Supreme Court has

telegraphed to this Court that its decision was a final judgment as to all of

Appellant’s principal-based sufficiency claims.

       This Court cannot explain why the Supreme Court granted review on a

single, principal-based sufficiency issue pertaining exclusively to statutory
____________________________________________


2
  If Appellant is guilty as an accomplice to the sole EWOC offense at issue,
further litigation as to his role as the principal to that same offense would be
redundant.




                                          - 11 -
J-A23005-13



interpretation of the EWOC statute, but then issued a decision effectively

precluding litigation of principal-based sufficiency claims, unrelated to

Appellant’s    statutory    interpretation     arguments,   that   had   never   been

addressed by this Court in our December 26, 2013 opinion.3 Indeed, some

parts of the Supreme Court’s opinion could reasonably be read to suggest

that the Court was not issuing a final judgment as to the other aspects of

Appellant’s sufficiency claims.4 However, our interpretation of the Supreme

Court’s opinion is that it did just that when it declined to address the matter

of accomplice liability by concluding that “the Commonwealth's evidence was

sufficient to sustain the conviction for EWOC as a principal.” Lynn, 114 A.3d
____________________________________________


3
  The Commonwealth suggests that it was Appellant’s burden to file a cross-
petition, in response to the Commonwealth’s petition for allowance of
appeal, in order to preserve his mens rea and duty-of-care sufficiency claims
that were left unaddressed by our December 26, 2013 opinion.              See
Commonwealth Brief in Response to Defendant’s Supplemental Brief, at 11.
The Commonwealth does not cite to any authority to support this theory,
and it arguably conflicts with the Commonwealth’s other ostensibly
unsupported theory—that all sufficiency claims pertaining to a single offense
constitute a single, composite issue for purposes of collateral estoppel. If
the latter theory is correct (and it very well may be), it is unclear why
Appellant would be required to preserve subparts of the same claim for
which the Commonwealth sought review. In any event, we need not
address the validity of these theories, given our interpretation of the
Supreme Court’s opinion.
4
  At one point, the Supreme Court states: “[W]hether [Appellant] owed a
duty of care to the children of St. Jerome’s, or to D.G. in particular, is not an
issue in this appeal and was not encompassed within our grant of allowance
of appeal. Rather, the legal issue we address concerns solely whether the
evidence sufficed to prove [Appellant]’s supervision of the welfare of a
child.” Lynn, 114 A.3d at 823.




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at 827.      Accordingly, we are compelled to conclude that Appellant is

precluded from raising any sufficiency claims on remand.

                                Other Acts Evidence

       For ease of disposition, we next address Appellant’s ninth claim of

error. Appellant contends that the trial court abused its discretion when it

admitted other-acts evidence concerning allegations leveled against 21

priests other than Avery and Brennan, as well as evidence concerning the

Archdiocese’s often bungled response to those allegations, matters for which

Appellant was often the Archdiocese’s point man in his position as

Secretary.5     Summarizing his claim concerning this evidence, Appellant

asserts:

       Of the 32 days of the Commonwealth’s case, at least 25 days
       focused primarily on evidence related to the Archdiocese’s
       handing of 21 other priests, dating as far back as the 1940s and
       in no way connected to the actions of either Avery or James
       Brennan or the circumstances surrounding their cases. The trial
       court improperly permitted the introduction of this evidence
       pursuant to Pa.R.E. 404(b). These files overwhelmed Appellant’s
       trial and prejudiced the jury against Appellant, as the
       representative of the Catholic Church. It is clear from the record
       that the Commonwealth introduced these files to put on trial the
       entire Archdiocese of Philadelphia, hoping to convict Appellant by
       proxy for the sins of the entire church.


____________________________________________


5
  There were at least a few cases where Appellant’s involvement predated
his appointment as Secretary entirely, although some of other cases
involved events that occurred when Appellant was an understudy to the
previous Secretary in the management of problematic priests in the
Archdiocese.



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Appellant’s Brief, at 54-55. In his brief, Appellant challenges both whether

this evidence fit any of the Pa.R.E. 404(b)(2) exceptions to the prohibition

contained in Rule 404(b)(1), and, even if it did, whether the probative value

of that evidence was outweighed by its potential for unfair prejudice.

Asserting that such evidence was not admissible under the exception to the

prohibition against other-acts evidence, Appellant argues that he is entitled

to a new trial. Appellant preserved his claim in the lower court by objecting

to the admission of this evidence in an answer to the Commonwealth’s

pretrial Rule 404(b) motion filed on December 12, 2011, during a hearing on

the matter which commenced on January 23, 2012, and during trial.

Appellant also objected to the cautionary instructions issued by the trial

court with regard to this evidence on the basis that they were insufficient to

cure the resulting prejudice.

      The Commonwealth counters that the trial court did not abuse its

discretion, arguing that the other-acts evidence was properly admitted, as it

ostensibly served permissible purposes under Rule 404(b), and because the

evidence was not unfairly prejudicial. The Commonwealth states:

      The Commonwealth … introduced evidence of 21 other cases
      probative of (inter alia) [Appellant]'s experience in supervising
      priests who sexually abused minors; his knowledge of their
      tendency to recidivate and the harm they inflict on their victims;
      and the priorities he served and methods he used to conceal and
      facilitate their misconduct in a manner that endangered children.
      The totality of these facts revealed a systematic pattern of
      knowledge and concealment, and refuted defendant's attempt to
      argue that he had no control over such priests or reason to



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J-A23005-13


      believe they were dangerous.           Such evidence was highly
      probative.

Commonwealth’s Brief, at 38-39.

      We review challenges to the admission of ‘other acts’ evidence for an

abuse of discretion.   Commonwealth v. Patterson, 91 A.3d 55, 68 (Pa.

2014), cert. denied sub nom., Patterson v. Pennsylvania, 135 S.Ct. 1400

(2015) (“The admission of evidence of prior bad acts is solely within the

discretion of the trial court, and the court's decision will not be disturbed

absent an abuse of discretion.”).

      Our Supreme Court has summarized the relevant law as follows:

             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.

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

      We focus our analysis herein on the balancing test between the

probative value of the other-acts evidence, and the potential for that

evidence to have unfairly prejudiced Appellant.        For purposes of this

analysis, we assume that each of the 21 instances of other-acts evidence

served at least some minimal probative value with regard to the permissible

categories set forth in Rule 404(b)(2) (“This evidence may be admissible for

another purpose, such as proving motive, opportunity, intent, preparation,


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J-A23005-13



plan, knowledge, identity, absence of mistake, or lack of accident.”)

(emphasis added). Furthermore, we note that the trial court admitted the

disputed other-acts evidence en masse, balancing its collective probative

value against its collective prejudice.       See Trial Court Opinion (TCO),

4/12/13, at 136 (“Cumulatively, this evidence, which was highly probative of

[Appellant]’s knowledge, motive, and intent, outweighed its potential for

prejudice.”).    Because Appellant does not specifically claim that the trial

court erred by treating this evidence collectively, and because the

Commonwealth does not specifically justify the admission of this evidence on

a case-by-case basis, we shall review the trial court’s admission of the

totality of this evidence in kind.

                 Probative Value of the Other-Acts Evidence

       The trial court correctly indicated that, at trial, “the Commonwealth

bore the burden to demonstrate that [Appellant] ‘knowingly endangered’ a

child, as required under § 4304(a), or even beyond that, that he specifically

intended that Avery endanger that child as needed to establish accomplice

liability.”   TCO, at 133.   The trial court stated that this large volume of

other-acts evidence was admissible under Rule 404(b)(2) because it

“illuminat[ed] the [Appellant]'s knowledge, motive, and intent[, which] was

critical for the jury's determination about [Appellant]'s mens rea when he

supervised Avery.” TCO, at 180 (emphasis in original). The trial court also

found that “[t]he substantial probative value of this uncharged evidence

outweighed any potential for prejudice.” Id.

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      Explaining further, the trial court noted:

      [First, i]n order for the jury to have returned a verdict on the
      EWOC and conspiracy charges against [Appellant], the jury
      needed to gain insight into what [Appellant] knew and what he
      intended when he supervised Avery. [Appellant] did not concede
      that he knew Avery to be a sexually abusive priest whose
      presence at St. Jerome's jeopardized the safety of children;
      therefore, the burden remained with the Commonwealth to
      establish this critical element.

                                      ***

      Second, the "other acts" evidence was the only way for the jury
      to gain an understanding of [Appellant]'s thought process.
      Common sense suggests that all people learn with experience.
      The more information one acquires, the greater the perspective
      that he/she may bring to bear upon decisions in the future.
      [Appellant]'s study of the Secret Archives not only provided him
      with the information needed to create several lists categorizing
      the degree of sexual deviance of particular priests; it also taught
      him how to identify sexually abusive priests, and how the
      Archdiocese chose to deal with those individuals. It was then
      incumbent upon [Appellant] to decide whether to perpetuate the
      practices in place, or to instead take measures that protected
      children. This Court found that providing the jury with a broad
      picture of [Appellant]'s knowledge base — about the priests that
      he managed as well as about the "system" that he inherited —
      would assist the jury with its determination as to what was
      actually in [Appellant]'s mind when he facilitated Avery's
      placement and stay at St. Jerome's.

TCO, at 133-35.

      Thus, the trial court characterized the probative value of this evidence

as ‘substantial.’ It is certainly the case that the volume of this evidence was

substantial.   We are less convinced, however, that the nature of this

evidence was substantially probative of Appellant’s culpability for the actions

of Avery and Brennan.



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J-A23005-13



       First, the other-acts evidence in question covered a myriad of

circumstances that provided only a minimal degree of insight into Appellant’s

state of mind with respect to his dealings with Avery and Brennan.             In this

regard, the trial court often overstates the case for the probative value of

the other-acts evidence under the rubric of fitting the “knowledge” exception

under Rule 404(b)(2). For instance, the trial court indicates that one of the

purposes of this evidence was to demonstrate Appellant’s knowledge “that

sexually abusive priests constituted a danger to children whenever there was

an opportunity for unsupervised contact[.]”                TCO, at 143 (emphasis

omitted). To this end, the trial court cites a particular case where Appellant

had acknowledged that placing a priest, Father Thomas Wisniewski, at a

parish without a school was preferable to placing that priest at a parish with

a school, so as to limit the opportunity for contact with children. 6           Id. at

144.      While   this   evidence,     strictly    speaking,   may   have   tended   to

demonstrate Appellant’s knowledge that child sexual predators should not be

allowed to be around children in unsupervised conditions, it does not follow

that such evidence was necessary, or even particularly helpful, to conveying

this point to the jury.      Certainly a jury is capable of such common sense

conclusions in the absence of such evidence, and could have concluded,


____________________________________________


6
 Appellant was aware at the time he made this statement that Father
Wisniewski had previously admitted to frequently having oral sex with a
minor high school student.



                                          - 18 -
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almost a priori, that any person of modest intelligence would recognize the

peril. Thus, while probative in the sense that it was somewhat relevant to

demonstrating Appellant’s knowledge, this evidence was not ‘substantially

probative,’ nor was it necessary or critical evidence of Appellant’s mens rea.

      Illustrative of this point is Commonwealth v. Smith, 956 A.2d 1029

(Pa. Super. 2008). In that case, the appellant, who had severely injured his

infant son by shaking him, claimed that the Commonwealth failed to

demonstrate the “knowing” element of EWOC.         He argued that he was at

most criminally negligent for endangering his son because he had not been

“instructed by his doctor about the dangers of Shaken Baby Syndrome.” Id.

We dismissed his sufficiency claim, stating:

      It takes nothing more than common sense for an adult, let alone
      an experienced father such as [the a]ppellant, to know that
      violently shaking an infant child with enough force to cause an
      abusive head trauma could threaten the child's physical and/or
      psychological welfare. Thus, there was sufficient evidence to
      support the jury's decision that Appellant knowingly violated a
      duty of care, protection or support.

Id. at 1038-39.      Likewise, in the instant matter, while the evidence

concerning Father Wisniewski may have tended to demonstrate Appellant’s

knowledge   that   sexual   predators   endanger   children   in   unsupervised

conditions, common sense demonstrates that point with nearly equal vigor.

Neverthess, the disturbing facts of Father Wisniewski’s molestation of

children, which were not an issue at Appellant’s trial, were recounted before

Appellant’s jury so as to provide the necessary context for the admissible

evidence concerning Appellant’s “knowledge.”

                                    - 19 -
J-A23005-13



      Another basis cited by the trial court for the admission of the high

volume of prior acts evidence was to establish Appellant’s motive to protect

the Archdiocese’s reputation at the expense of the victims of clergy sexual

abuse.   With reference to the motive exception to Rule 404(b), this Court

has held that:

      The mere identification of similarities between the prior bad acts
      and the crime at issue … does not establish motive. Instead, …
      there must be a firm basis for concluding that the crime
      currently on trial “grew out of or was in any way caused by the
      prior set of facts and circumstances.”

Commonwealth v. Ross, 57 A.3d 85, 101 (Pa. Super. 2012) (internal

citation omitted).

      The trial court admitted such ‘motive’ evidence regarding several

priests who were repeatedly transferred to different parishes after their

sexual abuse of minors came to light. See TCO, at 146-148. This evidence

included damning statements from Appellant’s predecessors concerning the

priorities of Archdiocese officials in dealing with sexual predators in the

Church. However, a substantial volume of this evidence concerned the bad

acts of priests, and the Archdiocese’s response thereto, that predated

Appellant’s tenure as Secretary by many years, and in some cases, decades.

Thus, even if this evidence tenuously provided the bare minimum degree of

probative value to meet the ‘motive’ exception to the Rule 404(b)

prohibition, it only did so by suggesting that Appellant followed the motives

of his predecessors, and not through Appellant’s own prior conduct.

Moreover, much of this evidence varied wildly in terms of its probative value.

                                    - 20 -
J-A23005-13



     The trial court summarizes some of this evidence as follows:

     Immediately after accusations came to light in August 1964 that
     Father Joseph Gausch found a boy at a local swimming pool,
     took him to the rectory of Our Lady of Peace, and molested the
     child, he was transferred to another parish. In early 1977,
     Father Gausch admitted to having touched another boy, D.C., on
     the "backside" and to having told him that he had a beautiful
     body; within a month, Father Gausch was transferred to another
     parish. Father Raymond Leneweaver, who had admitted to
     engaging in a sexually abusive relationship with a student in
     1968, was caught providing alcohol to students in June 1971.
     By September of that year, Father Leneweaver was reassigned
     as an assistant pastor at a different parish. In September 1980,
     after Father Leneweaver admitted to abusing three others,
     Monsignor Statkus assigned Father Leneweaver to St. Joseph's
     the Worker in Bucks County, PA "because it is one of the few
     remaining areas where his scandalous actions may not be
     known." Towards the end of 1981, the pastor of St. Titus's
     Parish in Norristown, PA informed the Archdiocese about the
     possibility of "scandal in the parish" as a result of allegations
     that Father Francis Trauger had sexually abused a boy named
     S.K. Monsignor Statkus met with Father Trauger, who stated
     that he had shared a bed with S.K. and massaged the boy's
     "chest and back."       Two days later, Father Trauger was
     transferred to St. Matthew's Parish in Philadelphia, PA. In July
     1977, Father Nicholas Cudemo was confronted with allegations
     that he had a number of affairs with female minors, and may
     have even impregnated one of them. Father Cudemo admitted to
     being "attracted to younger girls," but denied wrongdoing.
     Monsignor Statkus noted that he had reservations about
     transferring Father Cudemo, as he had "been changed twice
     previously to other high schools and yet the particular
     friendships have continued." Nonetheless, Monsignor Statkus
     transferred Father Cudemo to another parish roughly two
     months later. Following Father Edward DePaoli's guilty plea to
     receiving child pornography in federal court, Cardinal Bevilacqua
     called Father DePaoli to his office for a meeting in May 1988;
     Cardinal Bevilacqua told him it was "more advisable for [DePaoli]
     to return to the active ministry in another diocese" and assisted
     with Father DePaoli's placement in the Metuchen, NJ diocese.

TCO, at 14-48.


                                  - 21 -
J-A23005-13



      Appellant did interact with some of these priests during his own

tenure. However, Father Gausch was not in active ministry when Appellant

received new information in 1994 concerning Gausch’s previously unknown

molestation of a victim in the 1980’s, as Father Gausch had retired in 1992.

There is also no indication in the record that Appellant had a supervisory role

over Father Gausch when the priest was repeatedly reassigned to different

parishes in the 1960’s and 1970’s following allegations of sexual impropriety.

Thus, it cannot be fairly said from Appellant’s dealings with Gausch that

Appellant had exalted the Archdiocese’s reputation over an ongoing risk to

children, which ostensibly was the purpose for which this other-acts

evidence was admitted against him.       At best, this evidence demonstrated

that Appellant valued the Archdiocese’s reputation over the value inherent in

exposing Father Gausch’s prior misdeeds.        That motive only tenuously

relates to the distinct motive sought to be proven by the Commonwealth—

that Appellant actively exposed children to the risk of molestation so as to

protect the Archdiocese from scrutiny.

      Indeed, it strains credulity to construe the crimes for which Appellant

was charged as having grown “out of” or as having been “caused by” the

Archdiocese’s prior dealings with Gausch. Ross, supra. Nevertheless, even

if the evidence concerning Father Gausch was properly construed as

probative as to motive (a highly questionable proposition), it was certainly

not highly or substantially probative of Appellant’s motive in dealing with

Avery and Brennan.

                                    - 22 -
J-A23005-13



      By contrast, Appellant’s dealings with Father Cudemo were more

relevant and probative of this motive. Appellant spent the better part of a

decade addressing accusations against Cudemo, and had concluded that

Father Cudemo was a diagnosed pedophile.         TCO, at 32.    Despite this,

Appellant, at the behest of or in conjunction with Cardinal Bevilacqua,

permitted Father Cudemo to perform public Mass as a retired priest “in good

standing,”   and   repeatedly   misrepresented   Father   Cudemo’s   past    to

individuals who came forward with new allegations against the priest.       Id.

Still, it not clear that Appellant’s current crimes grew “out of[,]” or were

“caused by[,]” Appellant’s prior dealings with Cudemo. Ross, supra.

      This contrast between the evidence concerning Fathers Cudemo and

Gausch highlights a failure to distinguish between significantly probative and

minimally probative evidence.       While the evidence concerning Father

Cudemo did serve to demonstrate motive, based on ostensibly similar

circumstances to Appellant’s dealings with Avery and Brennan, the evidence

concerning the Archdiocese’s dealings Father Gausch only tended to

demonstrate this in the most attenuated and remote fashion, if at all. And,

while more probative of Appellant’s motive than the evidence concerning

Father Gausch, it is a stretch to say the evidence concerning Father Cudemo

was “highly” probative of Appellant’s motive in this case.     Despite some

similarities, Appellant’s experiences with Father Cudemo were far from

identical to his experiences with Avery and Brennan.




                                    - 23 -
J-A23005-13



      Relatedly,   the   trial   court   also     allowed   evidence   of   Appellant’s

predecessors’ overreliance on the diagnoses of psychiatric professionals:

      [Appellant]'s predecessors required psychiatric professionals who
      evaluated priests to relay their conclusions to the Archdiocese.
      The Secret Archives revealed that [Appellant]'s predecessors
      grounded their decisions about how to manage priests in the
      conclusions offered by the Archdiocese's doctors, despite the fact
      that their findings were often facially incredible.

TCO, at 152.

      The probative value of a different Secretary’s dealings with an

unrelated priest’s (mis)diagnosis had, at best, a remote and vague bearing

on Appellant’s motive in this case.      It again strains credulity that Appellant’s

crimes in this case grew “out of[,]” or were “caused by[,]” Appellant’s

predecessor’s overreliance on psychiatric professionals’ examinations of

priests other than Avery and Brennan. Ross, supra. The trial court’s own

understanding of the purpose of this evidence reveals that its introduction

was not even based directly upon Appellant’s own prior conduct, but instead

on his association with the Archdiocese:

      [Appellant]'s predecessors might have created the impression
      that the Archdiocese was acting responsibly, but blindly adopting
      recommendations proffered after inadequate psychological
      testing only helped sexually abusive priests to remain at large.

TCO, at 153.

      The thread that connected these events to Appellant’s case was his

possession and control of the Secret Archive, which documented Appellant’s

predecessors’ mishandling of problematic priests within the Archdiocese.

However,   evidence      of   Appellant’s   predecessor’s      overreliance    on   the

                                         - 24 -
J-A23005-13



diagnoses     of   psychiatric     professionals   was   purportedly   offered   to

demonstrate Appellant’s motive with respect to his failure to mitigate or

eliminate the risks posed by Avery and Brennan to children in the

Archdiocese. The conduct of different people in relation to different sexual

predators, different victims, and in different times, is on its face minimally

probative of this motive, if probative at all.

        Also typical of this marginally probative other-acts evidence of motive

were the facts presented to the jury that were related to Father Leneweaver.

In 1968, Father Leneweaver admitted to Archdiocese authorities that he had

engaged in a two-year homosexual affair with a Catholic high school

student.     Despite this behavior, he was not removed from his post at

Cardinal O’Hara High School.7          Three years later, the principal at Cardinal

O’Hara reported that Father Leneweaver had been supplying alcohol to

minors. As a result, in 1971, Father Leneweaver was reassigned to be an

assistant pastor at St. Monica’s Parish. By 1975, it came to light that Father

Leneweaver had engaged in sexual activities with three students at St.

Monica’s. He was given a leave of absence and evaluated by a psychiatrist

who ultimately concluded that Father Leneweaver showed no signs of a

serious mental disorder, and had merely acted out in reaction to difficulties

with his family. Father Leneweaver was subsequently reassigned, yet again,


____________________________________________


7
    The student/victim was from a different Catholic high school.



                                          - 25 -
J-A23005-13



to St. Agnes Parish, but without his new assignment being published. Five

years later, it came to light that Father Leneweaver had molested an eighth-

grade student at St. Agnes on multiple occasions. After confessing to these

acts, Father Leneweaver was sent for treatment at St. John Vianney. During

this time, Archdiocese authorities learned that Father Leneweaver was

visiting the homes of St. Agnes parishioners, including those with minor

children. Further investigation revealed that Father Leneweaver had made

sexual advances toward those children as well. After these events, Father

Leneweaver was again assigned to another Parish in Bucks County.       With

regard to this assignment, the Chancellor of the Catholic Schools in the

Archdiocese told one of the doctors who had counseled Father Leneweaver

that the Bucks County assignment was made “because it is one of the few

remaining areas where his scandalous actions may not be known.” TCO, at

116 (quoting from Exhibit C-134, N.T., 3/29/2012, at 59).        Ultimately,

Father Leneweaver himself requested a permanent leave of absence from

the Archdiocese in 1980, which apparently was granted.

     Appellant placed Father Leneweaver on a list of priests who were

“Guilty of Sexual Misconduct with Minors” in 1994, based on Father

Leneweaver’s admissions in 1968, as recounted in the Secret Archive.     In

1997, or thereabouts, Father Leneweaver requested to be reinstated in the

Archdiocese, and Appellant recommended to Cardinal Bevilacqua that Father

Leneweaver not be accepted back.            In making this recommendation,

Appellant stated that Father Leneweaver presented too great a risk to “the

                                   - 26 -
J-A23005-13



diocese, for the Bishop, for himself and the legal repercussions of having him

in ministry.” TCO, at 117 (quoting Exhibit C-152, N.T., 3/29/2012, at 78-

80).

       The trial court admitted this evidence as probative of Appellant’s

motive to “[k]eep parishioners in the dark” about clergy sex abuse. Id. at

154. However, it again strains credulity to believe that Appellant’s criminal

conduct relating to Avery and Brennan grew “out of[,]” or was “caused

by[,]” Appellant’s limited dealings with Leneweaver. Appellant did not assist

Father Leneweaver in any way, did not appoint or recommend that he be

appointed to any position within the Archdiocese, and, in fact, Appellant

recommended that Father Leneweaver not be permitted to return to the

Archdiocese in any capacity.       Thus, the likelihood that Appellant’s current

crimes grew “out of[,]” or were “caused by[,]” the facts concerning Father

Leneweaver     is   virtually   nil.    Ross,    supra.      While   Appellant’s

recommendation to not permit Father Leneweaver to return may have been

callous with respect to the threat his return might present to potential

victims, it is clear that this evidence was, at best, of trivial probative value

as to Appellant’s motive with regard to the offenses concerning Avery and

Brennan.

       Although the preceding evidence is largely representative of the other-

acts evidence at issue, the magnitude of the other-acts evidence at issue is

so large that further consideration of its probative value is impractical, as

additional analysis could easily consume dozens if not hundreds of additional

                                       - 27 -
J-A23005-13



pages.    Having thoroughly reviewed this evidence, however, we can

confidently conclude that the trial court’s description of this evidence as

being “highly probative” of Appellant’s mens rea with respect to crimes

related to Avery and Brennan is a substantial overstatement that risks

mischaracterizing the nature of the specific evidence actually introduced.

Some of this evidence, including but not limited to the examples cited

above, is only marginally probative of any Rule 404(b)(2) category. None of

the evidence concerned the actual victim(s) in this case, and none of it

directly concerned Appellant’s prior dealings with either Avery or Brennan.

In this regard, the trial court has apparently mistaken quantity for quality in

construing the probative value of this evidence en masse. Consequently, we

disagree with the trial court’s characterization, and conclude instead that,

while some of this evidence was probative of Appellant’s mens rea vis-à-vis

the various Rule 404(b)(2) categories, the probative value of significant

quantities of this evidence was trivial or minimal.

             Potential Prejudice of the Other-Acts Evidence

      Merely crossing the threshold of demonstrating that other-acts

evidence was probative of some Rule 404(b)(2) category does not, by itself,

demonstrate admissibility.   “In a criminal case this evidence is admissible

only if the probative value of the evidence outweighs its potential for unfair

prejudice.” Pa.R.E. 404(b)(2) (emphasis added). In this context, “‘[u]nfair

prejudice’ means a tendency to suggest decision on an improper basis or to




                                     - 28 -
J-A23005-13



divert the jury's attention away from its duty of weighing the evidence

impartially.” Commonwealth v. Dillon, 925 A.2d 131, 141 (Pa. 2007).

      Often cited in conjunction with this balancing test, as invoked by the

trial court in this case, is our Supreme Court’s elucidation on the topic of

prejudice in Commonwealth v. Lark, 543 A.2d 491 (Pa. 1988):

      Not surprisingly, criminal defendants always wish to excise
      evidence of unpleasant and unpalatable circumstances
      surrounding a criminal offense from the Commonwealth's
      presentation at trial. Of course, the courts must make sure that
      evidence of such circumstances have some relevance to the case
      and are not offered solely to inflame the jury or arouse prejudice
      against the defendant. The court is not, however, required to
      sanitize the trial to eliminate all unpleasant facts from the jury's
      consideration where those facts are relevant to the issues at
      hand and form part of the history and natural development of
      the events and offenses for which the defendant is charged, as
      appellant would have preferred.

Id. at 501.

      Naturally, as the Lark Court suggests, relevant evidence of Appellant’s

culpability for the charged offenses should not be excluded merely because it

tends to demonstrate his guilt.      However, our Supreme Court has also

advised that, “to be admissible under the [motive] exception, evidence of a

distinct crime, even if relevant to motive, ‘must give sufficient ground to

believe that the crime currently being considered grew out of or was in any

way caused by the prior set of facts and circumstances.’” Commonwealth

v. Roman, 351 A.2d 214, 218-19 (Pa. 1976) (emphasis added). Thus, we

must not forget that the rule being applied is that other-acts evidence is by

default inadmissible unless a Rule 404(b)(2) category or similar justification


                                     - 29 -
J-A23005-13



applies, and the probative value of that evidence outweighs its potential for

prejudice. The burden is on the party seeking admission to demonstrate the

applicability of the exception to the general rule; in this case, that burden

fell on the Commonwealth.       There is no presumption of admissibility of

other-acts evidence merely because it is somewhat relevant for a non-

propensity purpose.

      The context of the Lark Court’s warning is relevant to the balancing

test in the instant case.   In Lark, the appellant disputed the propriety of

trying him jointly for multiple offenses, claiming that the crimes “were not of

a similar character and had not arisen from a single criminal transaction, and

that he would be unduly prejudiced by consolidation of these offenses at

trial.” Lark, 543 A.2d at 496. The Lark court determined that Lark was not

unduly prejudiced by consolidation based on the following facts: Lark had

robbed the victim at gunpoint, but was immediately apprehended thereafter.

The day before that victim was scheduled to testify against Lark at the

preliminary hearing for the robbery, the victim was murdered at his place of

business. Witnesses testified that Lark had made statements while out on

bail for the robbery indicating his intent to kill the victim before he was

allowed to testify, and that, after the killing, Lark had bragged about it.

Evidence also demonstrated that Lark later threatened both prosecutors and

detectives involved in the robbery and murder cases.

      Thus, in Lark, the other-acts evidence at issue directly involved Lark’s

attempt to cover his tracks following his robbery of the victim, which

                                    - 30 -
J-A23005-13



manifested with the murder of the victim and the multiple threats issued to

the various authorities who were attempting to bring him to justice. Thus,

the facts that constituted the multiple crimes for which Lark was jointly tried

were inextricably intertwined. Lark’s first crime was the direct impetus that

motivated each subsequent crime.       Notably, all of the other-acts/other-

crimes evidence at issue in Lark related directly to Lark’s own aberrant

behavior. Moreover, a substantial portion of other-acts evidence at issue in

Lark directly provided the factual basis for the charged offenses for which

Lark was being jointly tried.

      Appellant’s mishandling of priests other than Avery and Brennan, who

molested different children, and in different circumstances, was not clearly

within the web of facts pertaining to Appellant’s misconduct with Brennan

and Avery.    This is true regardless of whether his actions in those other

cases tended to speak to an overarching motive to protect the Church

and/or Archdiocese from ill-repute at the expense of the safety of children in

the Archdiocese.   Moreover, the other-acts evidence that did not relate to

Appellant’s prior conduct, but instead to the conduct of his predecessors,

was not at all within the web of facts that pertained to Appellant’s

mishandling of Avery and Brennan.

      Notably, the trial court spends virtually no time addressing the

prejudicial value of the copious amounts of other-acts evidence at issue in

this case.   After discussing the probative value of this evidence at great

length, see TCO, at 132-180, the trial court summarily concludes that any

                                    - 31 -
J-A23005-13



such prejudice was outweighed by its probative value, id. at 180. Therefore,

in more than 160 pages discussing other-acts evidence (110 plus pages

summarizing the other-acts evidence, and 50 plus pages of analysis), the

trial court dedicated precisely one sentence to discussing the potential for

that evidence to prejudice Appellant.

      Nevertheless, we conclude that the potential for unfair prejudice was

great when the court admitted evidence of the sexual molestation of children

at the hands of sexually deviant priests other than those directly at issue in

the case at hand.    When that evidence involved acts that occurred long

before Appellant bore any responsibility for problematic priests within the

Archdiocese, the potential for unfair prejudice was even greater.

      By Appellant’s calculation, the presentation of this contested evidence

consumed more than three-quarters of his trial (25 of 32 days)—an estimate

undisputed by the Commonwealth and, by our own estimation, a reasonably

accurate representation of the bulk of Appellant’s trial.       Indeed, this

imbalance is also reflected in the trial court’s summary of the evidence. The

court’s summary of facts pertaining to Appellant’s handling of Avery

encompasses approximately 17 pages of the court’s Rule 1925(a) opinion,

see TCO, at 2-18, while the court’s summary of the other-acts evidence




                                    - 32 -
J-A23005-13



consumes nearly 113 pages of that same opinion, see TCO, at 20-132.8

Thus, regarding the trial court’s summary of the facts adduced at Appellant’s

trial, more than 85% of that summary concerns the acts of, and the

Archdiocese’s response to, priests other than Avery and Brennan.         By any

formulation, therefore, it is clear that the vast majority of evidence offered

by the Commonwealth against Appellant concerned his handling of sexually

abusive priests in cases not directly related to the offenses for which he was

tried or, in some cases, the activities of sexually abusive priests who were

predominately handled by Appellant’s predecessors.

       We recognize that our Supreme Court has suggested that a high

volume of potentially prejudicial, other-acts evidence is not, by itself,

grounds for excluding it. In Commonwealth v. Boczkowski, 846 A.2d 75

(Pa. 2004), the appellant was convicted of murdering his wife, Maryann, by

strangulation. The circumstances of Maryann’s death suggested that, after

strangling her, the appellant had staged the scene to make it appear as if

she had drowned in their hot tub. On appeal, the appellant argued that he

was unduly prejudiced by the Commonwealth’s presentation of other-acts

evidence concerning the suspicious death of his former wife, Elaine, who had




____________________________________________


8
  This latter figure does not include the trial court’s legal analysis concerning
the admission of the ‘other acts’ evidence, which required an additional 49
pages in its opinion. See TCO, at 132-180.



                                          - 33 -
J-A23005-13



been found dead in a bathtub just four years prior to the death of his current

wife, under remarkably similar circumstances.

       The appellant in Boczkowski did not dispute that this evidence could

be admitted for limited purposes (motive, lack of mistake, etc.) under Rule

404(b)(2).     Instead, he argued that the “sheer volume of the testimony

concerning Elaine's death was … an abuse of the trial court's discretion.”

Boczkowski, 846 A.2d at 93. In this regard, the appellant highlighted that

“‘twenty-one percent’ of the Commonwealth's witnesses testified exclusively

about Elaine's death in North Carolina, while a number of the witnesses who

testified regarding Maryann's murder also testified about Elaine's murder.

[The a]ppellant calculate[ed] that ‘fifty-two percent’ of the Commonwealth's

witnesses testified in whole or in part about Elaine's death.” Id.

       Our Supreme Court rejected this claim—not by disputing the assertion

that a high volume could influence the balancing of probative value versus

potential for prejudice of other-acts evidence—but by noting the focused

nature of that evidence and the presence of cautionary instructions.9

Notably, despite the high volume of that evidence and the high potential for

prejudice, that evidence focused on a single prior bad act—the killing of the
____________________________________________


9
  The evidence had also conformed to a previous decision of the Superior
Court addressing the Commonwealth’s interlocutory appeal from a pre-trial
order that had precluded the Elaine-related evidence on the basis that it was
not admissible to show lack of mistake in the Commonwealth’s case-in-chief.
The trial court had initially ruled that evidence of lack of mistake was only
admissible to rebut a defense that her death was accidental.



                                          - 34 -
J-A23005-13



appellant’s previous wife—in virtually identical circumstances as the offense

for which the appellant was being tried.        Thus, while evidence of the

appellant’s prior wife’s suspicious death may have been highly prejudicial in

a general sense, both in that it qualitatively described the details of a prior

suspicious death and quantitatively made up a substantial portion of the

Commonwealth’s case, that prejudice was not unfair precisely because it was

profoundly relevant to prove motive, absence of mistake, or lack of accident,

given the substantial similarities between the two deaths.

      By contrast, in the instant case, the high volume of prejudicial other-

acts evidence involved Appellant’s supervision of other priests with varying

psychiatric diagnoses, priests who committed crimes or bad acts in a wide

variety of different circumstances, against different types of victims and, in

some cases, which did not even involve Appellant’s prior acts at all, but

instead those of his predecessors.    This was not a case like Boczkowski

where the jury was provided a significant volume of facts that constituted

contextual details concerning a single prior bad act, and one which was

nearly identical to the crime for which the appellant was being tried.

Instead, there were numerous prior bad acts introduced in this case that

varied greatly in their relevance to the purpose for which they were

admitted.   Thus, it is not just the volume of other-acts evidence that is

notably greater than was at issue in Boczkowski, the other-acts evidence in

this case was, by and large, not nearly as probative of or relevant to the

Rule 404(b)(2) exceptions under which it was admitted.

                                     - 35 -
J-A23005-13



      The trial court indicates that any unfair prejudice in this case was

adequately mitigated by the court’s cautionary instructions, and that the

split verdict indicates that the jury was able to carefully consider the

evidence for its proper purpose.    The Commonwealth agrees, arguing that

any undue prejudice was harmless because it was “eliminated by the court’s

limiting instructions.”   Commonwealth’s Brief, at 42.    As proof of this, the

Commonwealth directs our attention to the fact that Appellant was acquitted

“of three of the four offenses charged[,]” id. at 43, an argument that

dovetails with the trial court’s own analysis, see TCO, at 137-38.

      First, we reject the notion that the jury’s verdict, by itself, is

particularly strong or useful evidence that the trial court’s instructions

effectively eliminated all or most of the unfair prejudice that resulted from

the admission of vast quantities of other-acts evidence. A different narrative

could easily be constructed to suggest just the opposite conclusion: that the

evidence of Appellant’s guilt was demonstrably weak by virtue of the three

acquittals, and that the single conviction reflected the effect of the unduly

prejudicial evidence—or that it reflected the jury’s intent to punish Appellant

as a scapegoat for the policies of the Archdiocese, despite having concluded

that his culpability for these specific offenses was not proven beyond a

reasonable doubt. However, rather than adopting any of these narratives, it

is preferable judicial policy to avoid such speculation. This Court is ill-suited

to the task of reading the minds of twelve jurors so as to ascertain why they

chose to acquit Appellant of some charges but not others, and it is beyond

                                     - 36 -
J-A23005-13



our province to engage in such speculation in any event.        Instead, our

evaluation must center on whether the trial court abused its discretion when

it was asked to determine whether “the probative value of the evidence

outweighs its potential for unfair prejudice.” Pa.R.E. 404(b)(2) (emphasis

added).

     The trial court cites Commonwealth v. Williams, 9 A.3d 613 (Pa.

2010), to suggest that it may evaluate the jury verdict to assess the balance

between the probative value and potential prejudice of the at-issue prior-

acts evidence. See TCO, at 137-138. Notably, the quoted language in the

trial court’s opinion does not even appear in that case, although the

Williams Court did opine on the topic of prejudice. Nevertheless, Williams

does not stand for the proposition that we may, on direct review, rely upon

the jury verdict to determine whether jury instructions were sufficient to

mitigate unfair prejudice resulting from the admission of copious amounts of

other-acts evidence.   Indeed, the Williams Court did not engage in the

balancing test that is at issue with regard to the admission of other-acts

evidence under Rule 404 at all, but instead dealt with the prejudice prong of

ineffectiveness of counsel claim. The prejudice standard on direct review of

claims of evidentiary error is not as strict as that which is required for

proving ineffectiveness claims on collateral review. As our Supreme Court

has explained:

     Derivative claims of ineffective assistance of counsel are
     analytically distinct from the defaulted direct review claims that
     were (or could have been) raised on direct appeal.

                                   - 37 -
J-A23005-13


      Commonwealth v. Collins, 585 Pa. 45, 888 A.2d 564, 572–73
      (2005). As noted, Strickland [v. Washington, 466 U.S. 668
      (1984),] requires a showing of actual prejudice, not the
      presumed prejudice arising from [United States v.] Cronic[,
      466 U.S. 648 (1984)], nor the harmless error standard that
      governs ordinary claims of trial court error on direct review, nor
      the presumption of harm arising on direct review [certain
      claims]. This Court has long recognized the distinction between
      Strickland prejudice and the harmless error standard applicable
      in the direct review context, and this distinction can be outcome-
      determinative. See, e.g., Commonwealth v. Howard, 538 Pa.
      86, 645 A.2d 1300, 1307 (1994).

Commonwealth v. Reaves, 923 A.2d 1119, 1130 (Pa. 2007).

      Here, we review the trial court’s evidentiary decision for its potential to

cause unfair prejudice in relation to the probative value of that evidence, not

for actual prejudice as is required to assess derivative claims on collateral

review. In light of this distinction, the jury’s verdict tells us very little about

whether it was able to dutifully sort through the barrage of other-acts

evidence in accordance with the trial court’s cautionary instructions.

      Second,    we   disagree    that   the   trial   court’s   limiting/cautionary

instructions eliminated the potential for unfair prejudice.         The trial court

indicates that it instructed the jury “on nine different occasions about the

limited scope for which the ‘other acts’ evidence could be considered.” TCO,

at 136. The court went on say:

      Each charge was the same or a very slight variation on what this
      Court stated on March 29, 2012:

         Good morning, ladies and gentlemen. I'm going to give
         you this morning, and I will give you through the trial this
         same or similar instruction.      It's called a cautionary
         charge. It just alerts you about how you should handle or
         accept certain evidence. You will hear evidence concerning


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       alleged improper behavior up to and included [sic] the
       alleged sexual abuse of children by priests other than what
       has been alleged as to Edward Avery and James Brennan.
       In some of these cases, Defendant Lynn handled these
       allegations personally and documented his actions and
       recommendations in memorandum — or I guess
       memoranda, since it's plural.

       As regards [sic] to other cases, he reviewed documents
       pertaining to these allegations in files kept in the Secret
       Archives of the Archdiocese of Philadelphia. This so-called
       other-acts evidence is being admitted for limited purposes.
       The Commonwealth may introduce evidence relating to
       Defendant Lynn's handling of or knowledge about
       accusations made against priests other than Edward Avery
       and James Brennan for the following purposes:

       1. To assist the jury in assessing motive, opportunity,
       intent, preparation, plan, knowledge or absence of mistake
       or accident.

       2. To allow the jurors to understand the complete story so
       they can draw the proper inferences from the evidence.

       3. To demonstrate that Defendant Lynn's actions in this
       case were part of a common plan, scheme and design.

       4. To demonstrate the relationship between Defendant
       Lynn, other Archdiocese officials, and accused priests in
       order to allow the jury to determine whether Defendant
       Lynn participated in a conspiracy to endanger children
       supervised by Edward Avery and James Brennan.

       Of course, it is for you and you alone, you the jurors, to
       determine whether you believe this evidence, and if you do
       believe it, whether you accept it for the purpose proffered
       or offered to you. You may give it such weight as in your
       judgment it deserves, but only for the limited purposes
       that I have just described for you. Defendant Monsignor
       Lynn is not on trial for committing or conspiring to commit
       any of the acts attributed to other priests other than what
       is alleged as to Edward Avery and James Brennan, and is
       not on trial for endangering the welfare of any of the
       children allegedly abused or molested by priests other than
       Edward Avery and James Brennan. You may not consider
       the evidence of these other acts as a substitute for proof

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J-A23005-13


         that Defendant Monsignor Lynn committed the crime of
         endangering the welfare of children supervised by Edward
         Avery and James Brennan.

         You may not consider this evidence as proof that
         Defendant Monsignor Lynn has a bad character or any
         propensity to commit crimes. Remember that Defendant
         Monsignor Lynn is on trial here because he has been
         accused of endangering the welfare and conspiring with
         others to endanger the welfare of children that were
         supervised by Edward Avery and James Brennan, not for
         these other acts. So I just wanted you to be aware of that
         so that you can have it in the proper context. I will give
         you this repeatedly throughout the trial because a great
         deal of the evidence that you are hearing concerns these
         other matters and not the actions as are alleged against
         Edward Avery and James Brennan. Thank you.

      N.T. 3/29/2012 at 22-25.

TCO, at 136-37.

      We must assess the effect of these cautionary instructions in the

context of this case. We begin with the presumption that a jury follows the

curative instructions of the trial court.    Commonwealth v. Hairston, 84

A.3d 657, 666 (Pa. 2014) (“Jurors are presumed to follow the trial court's

instructions.”).   However, this presumption is not unassailable.         Our

Supreme Court has indicated that “when examining the potential for undue

prejudice,” in the context of Rule 404, “a cautionary jury instruction may

ameliorate the prejudicial effect of the proffered evidence.” Id. (emphasis

added). In the exceptional circumstances of this case, we conclude that this

presumption has been overcome by the varied and often questionable

probative value of the admitted other-acts evidence, its significant potential




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J-A23005-13



for unfair prejudice, and, importantly, the vast quantity of other-acts

evidence that the jury was asked to evaluate.

     In this regard, although the trial court issued some variation of the

above instruction on multiple occasions, we do not believe the instruction

carried the same weight that it would have carried in relation to more

focused and less voluminous other-acts evidence. The other-acts evidence

dominated Appellant’s trial to such a degree that we are unable to conclude

that the jury could have dutifully followed the court’s instructions, which

effectively demanded that the jury ignore the elephant in the room.     The

elephant being the tendency of the other-acts evidence to suggest that

Appellant had the general propensity to coddle sexual predators based on

facts not directly related to the crimes for which he was being tried. While

the jury might reasonably be expected to follow such instructions in normal

circumstances, the high volume of other-acts evidence involved in this case,

coupled with is high potential for prejudice and minimal probative value,

made such an expectation unreasonable.

     Neither the trial court nor the Commonwealth cite to any case where

this presumption was applied in circumstances substantially similar to the

instant case in terms of the quantity and quality of the at-issue other-acts

evidence. Likewise, nowhere in our review of the numerous cases applying

the aforementioned presumption have we found a            case where the

presumption was applied in such exceptional circumstances.     As discussed

above, in Boczkowski, the volume of prior-acts evidence was high, but the

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J-A23005-13



scope of that evidence concerned only a single prior bad act—the

defendant’s ostensible/alleged killing of his former wife. Our Supreme Court

indicated in that case that “the court's repeated cautionary charges

concerning the limited purpose of the evidence served to minimize any

potential for unfair prejudice.”   Boczkowski, 846 A.2d at 93.          In the

instant, case, however, the volume of other-acts evidence was much higher,

and its scope spanned decades of prior bad acts committed within and by

the Archdiocese, much of which had little to do with Appellant’s supervision

of Avery and Brennan.     The jury’s ability to apply the court’s instructions

dutifully to such a high volume of other-acts evidence was likely to be

significantly hampered. Thus, we reject the trial court’s conclusion, as well

as the Commonwealth’s corresponding argument, that any unfair prejudice

resulting from the admission of other-acts evidence in this case was

ameliorated by the court’s cautionary instructions.

      In sum, we conclude that the probative value of the individual portions

that made up the large quantity of other-acts evidence in this case differed

greatly. A limited portion of that evidence was substantially relevant to, or

probative of, permitted uses under Rule 404(b)(2), but far more was only

marginally relevant for such purposes.       The potential for this evidence to

unfairly prejudice Appellant was high, both because it involved the sexually

abusive acts of numerous priests committed against children over several

decades, and because of the high volume of the evidence admitted.

Therefore, we conclude that the probative value of that evidence, in toto, did

                                    - 42 -
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not outweigh its potential for unfair prejudice, and that this potential

prejudice was not overcome by the trial court’s cautionary instructions.

Consequently, we hold that the trial court abused its discretion in its

application of Rule 404(b)(2).    As our judgement requires that Appellant

receive a new trial, we decline to address Appellant’s remaining claims of

error.

         Judgment of sentence vacated.       Case remanded for a new trial.

Jurisdiction relinquished.

         Judge Musmanno joins this memorandum.

         Judge Donohue files a concurring and dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2015




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