J-A28007-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellant

                     v.

ROSEANNE M. SIMEONE

                          Appellee                   No. 813 EDA 2015


                     Appeal from the Order March 18, 2015
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0001102-2014


BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J.

MEMORANDUM BY GANTMAN, P.J.:                    FILED DECEMBER 29, 2015

        Appellant, the Commonwealth of Pennsylvania, appeals from the order

entered in the Monroe County Court of Common Pleas, which granted in part

and denied in part the Commonwealth’s notices of intent to introduce

evidence of prior bad acts against Appellee, Roseanne M. Simeone.         We

affirm in part and reverse in part.

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

On November 5, 2013, police filed a criminal complaint against Ms. Simeone

for crimes which took place between September 17, 2013 and October 7,

2013.    In the affidavit of probable cause, Detective John Bohrman related

the following facts. On September 17, 2013, Victim called police to report

harassment by Ms. Simeone, Victim’s ex-girlfriend. Victim admitted he had

an affair with Ms. Simeone.     When Victim ended the relationship, he said
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that Ms. Simeone became obsessed with him and refused to accept that the

relationship was over. Ms. Simeone told Victim’s wife about the affair and

showed up at Victim’s residence to convince Victim to continue their

relationship. When police confronted Ms. Simeone about her appearance at

Victim’s residence, Ms. Simeone claimed she went to Victim’s house to

confront him because he had raped her. Ms. Simeone subsequently went to

the police station and filed a formal report of the alleged rape. Ms. Simeone

described the rape to police in great detail, which Ms. Simeone alleged had

occurred on or about September 10, 2013.          Ms. Simeone insisted Victim

threatened to kill or hurt her if she told anyone he had raped her.

       Nearly every night after Ms. Simeone filed the report accusing Victim

of rape, Ms. Simeone contacted police to report that someone had

vandalized the road in front of her house with spray paint. Ms. Simeone told

police she believed Victim was the perpetrator of each act of vandalism. In

total, Ms. Simeone reported fourteen (14) separate acts of vandalism

implicating Victim as the perpetrator.1 Meanwhile, Victim also reported acts

of vandalism at his residence and vacation home.

       On September 18, 2013, Ms. Simeone obtained a temporary protection

from abuse (“PFA”) order against Victim.          Following a PFA hearing on
____________________________________________


1
   Ms. Simeone alleged         the perpetrator spray-painted vulgar messages
including but not limited     to: “Die Jew Lover,” “I’m Gonna Kill U,” and “Ur
Chicken 4 Running.” In        one instance, Ms. Simeone also reported that the
perpetrator had burned a      fire on her lawn.



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October 7, 2013, the court dismissed the temporary PFA order.              Ms.

Simeone called police that night and reported that, upon her return home,

she discovered the words “U Lost Bitch” spray-painted in the road in front of

her house.       Ms. Simeone said she photographed the vandalism with her

iPhone; Ms. Simeone e-mailed the picture to police. Ms. Simeone informed

police she hid in a ditch later that evening in case the perpetrator returned,

and Ms. Simeone eventually saw someone who looked like Victim drive by

her house. Ms. Simeone said she took a picture of the car and captured the

license plate.    Ms. Simeone sent this picture to police as well, and police

confirmed that the license plate in the picture matched Victim’s registration.

      Upon examination of Ms. Simeone’s pictures, police also discovered

Ms. Simeone had taken the picture of the spray-painted language at 3:45

p.m. on October 7, 2013.        Regarding the picture of the license plate,

however, police determined Ms. Simeone had edited that photo.              Ms.

Simeone denied editing the picture. Consequently, police obtained a search

warrant for Ms. Simeone’s iPhone on October 17, 2013.             After police

obtained the search warrant, Ms. Simeone did not report any further acts of

vandalism.

      When police executed the search warrant on Ms. Simeone’s iPhone,

police discovered numerous text messages from Ms. Simeone to Victim

occurring after the alleged rape, which were inconsistent with messages

between an alleged rape victim and her alleged rapist.      For example, the


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messages showed Ms. Simeone pleading with Victim to stop ignoring her and

to spend more time with her, and showed an effort by Ms. Simeone to

continue her relationship with Victim. Additionally, a closer examination of

the picture of the license plate Ms. Simeone had sent to police revealed Ms.

Simeone had edited an earlier photograph taken on November 27, 2012.

        On October 19, 2013, police interviewed Elizabeth O’Brien, one of Ms.

Simeone’s best friends. Ms. O’Brien told police she knew Ms. Simeone was

responsible for some of the spray painting committed at Victim’s vacation

home and on the road in front of Ms. Simeone’s house.             Ms. O’Brien

admitted she participated in some of the spray painting at Victim’s house

with Ms. Simeone and was present when Ms. Simeone did some of the spray

painting by herself.

        The Commonwealth initially charged Ms. Simeone with two counts of

false reports to law enforcement authorities (one count involving her

allegation of rape and one count involving her allegation of vandalism), and

one count each of tampering with or fabricating physical evidence and

criminal mischief.2 The Commonwealth subsequently amended the criminal

information, with leave of court, adding thirteen (13) counts of false reports

to law enforcement authorities for the additional, separate allegations of

vandalism to or near Ms. Simeone’s property.

____________________________________________


2
    18 Pa.C.S.A. §§ 4906(a); 4910(2); 3304(a)(4), respectively.



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     On January 16, 2015, the Commonwealth filed notice of its intent to

introduce evidence of prior bad acts pursuant to Pa.R.E. 404(b).      The

Commonwealth sought to introduce the following evidence:

        a. On or about August 4, 2009, [Ms. Simeone] vandalized
        ex-paramour S.M.’s vehicle with green spray paint shortly
        after the dissolution of the relationship;

        b. On or about July 7, 2010 and again on July 12, 2010,
        [Ms. Simeone] flattened tires on ex-paramour J.V.’s
        vehicle shortly after the dissolution of the relationship;

        c. On or about June 20, 2011, again on June 21, 2011,
        and a third time on July 8, 2011, [Ms. Simeone] threw
        rocks at vehicles belonging to ex-paramour D.J., twice
        breaking windows on the vehicle and once causing a dent
        in a bumper and on June 20, 2011[, Ms. Simeone] also
        vandalized one vehicle with spray paint;

        d. On or about July 29, 2012, following an argument with
        paramour T.H., [Ms. Simeone] told her paramour she knew
        how to get him in trouble and then reported a domestic
        assault to police;

        e. Between April 2013 and October 2013, [Ms. Simeone],
        on at least (6) occasions did vandalize [Victim’s] property
        in Green Township, Pike County by spray painting
        messages such as “Kill All Jews” and “You’re an Asshole”;

        f. On or about November 18, 2013, shortly after a break
        up with paramour J.S., [Ms. Simeone] appeared at her ex-
        paramour’s residence uninvited and when he would not let
        her inside the residence, [Ms. Simeone] threatened to call
        and eventually did call the police to report a domestic
        assault.

(Commonwealth’s Notice of Intent to Introduce Pa.R.E. 404(b) Evidence,

filed January 16, 2015, at 2-3; R.R. at 17a-18a).      The Commonwealth

alleged, inter alia, the evidence sought to be admitted is relevant to


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establish a common plan or scheme.             The Commonwealth also maintained

the probative value of its proposed evidence outweighs any prejudice. Ms.

Simeone responded on January 27, 2015, opposing admission of the

evidence.     Ms. Simeone claimed the evidence sought to be admitted was

“plainly inadmissible” prior bad acts evidence, which is irrelevant and “totally

outweighed by undue prejudice” to Ms. Simeone.

        On January 29, 2015, the Commonwealth amended its notice of intent

to introduce evidence of prior bad acts. The Commonwealth indicated it no

longer intended to produce evidence of Ms. Simeone’s acts of vandalism

against J.V. on July 7, 2010 and July 12, 2010.3                Additionally, the

Commonwealth listed two more incidents of prior bad acts it sought to

introduce, which occurred on September 11, 2009 and September 13, 2009,

when Ms. Simeone conspired with others to vandalize her ex-paramour,

C.O.’s, vehicle with spray paint on both occasions. Ms. Simeone pled guilty

to conspiracy to commit criminal mischief in relation to both events.4

(Commonwealth’s Amended Notice of Intent to Introduce Pa.R.E. 404(b)

Evidence, filed January 29, 2015, at 2; R.R. at 27a).              Ms. Simeone

responded on February 3, 2015, opposing admission of the evidence for the

same reasons advanced in her earlier response.

____________________________________________


3
    J.V. informed police he did not want any involvement in the case.
4
    Ms. Simeone states on appeal that her convictions were for harassment.



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       On February 27, 2015, the court held a pre-trial hearing regarding

admissibility    of    the    Commonwealth’s      proposed   evidence. 5   The

Commonwealth recited its proposed evidence as detailed in its notice and

amended notice of intent to introduce evidence of prior bad acts. 6        The

Commonwealth indicated each ex-paramour described in the notice or

amended notice (except for J.V. in relation to the withdrawn incidents of

vandalism) would be available and willing to testify at trial.             The

Commonwealth claimed its proposed evidence establishes, inter alia, a

common plan or scheme in which Ms. Simeone vandalizes the property of, or

makes false reports against, ex-paramours as acts of retribution following

dissolution of their relationships.        The Commonwealth insisted all events

occurred continuously between 2009 and 2013, which is a relatively short

timeframe.      Ms. Simeone responded that the majority of the alleged

incidents did not result in convictions, the incidents are irrelevant to the

charges against her, and even if relevant, all proposed evidence is highly

prejudicial.

       On March 18, 2015, the court granted in part and denied in part the

____________________________________________


5
 The court also heard argument regarding two of the Commonwealth’s
motions in limine, the rulings on which are not at issue in this appeal.
6
  With respect to the incident of Ms. Simeone’s false report against J.S. on
November 18, 2013, the Commonwealth added that a responding police
officer had observed Ms. Simeone inflict injuries on herself in the area of her
body where she alleged J.S. had committed the assault against her.



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Commonwealth’s notice and amended notice to introduce evidence of prior

bad acts. Specifically, the court permitted the Commonwealth to introduce

evidence of Ms. Simeone’s vandalism to Victim’s property between April

2013    and      October   2013.       Nevertheless,     the    court   prohibited   the

Commonwealth from introducing all other proposed evidence involving any

other ex-paramour as irrelevant, not indicative of a common plan or

scheme,     or    outweighed     by    the     danger   of   unfair   prejudice.     The

Commonwealth timely filed a notice of appeal on March 19, 2015, pursuant

to   Pa.R.A.P.     311(d).7      On    April    9,   2015,   the   court   ordered   the

Commonwealth to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), which the Commonwealth timely filed on

April 15, 2015.

       The Commonwealth raises one issue for our review:

          WHETHER THE [TRIAL] COURT ABUSED ITS DISCRETION
          IN DENYING THE ADMISSION AT TRIAL OF THE MAJORITY
          OF THE COMMONWEALTH’S PROFFERED EVIDENCE
          PURSUANT TO PENNSYLVANIA RULE OF EVIDENCE 404(B)
          AFTER ERRONEOUSLY CONCLUDING THAT THE EVIDENCE
          WAS IRRELEVANT, NOT SIMILAR ENOUGH, OFFERED TO
          SHOW CRIMINAL PROPENSITY, WOULD BE MORE
          PREJUDICIAL THAN PROBATIVE, THE COMMONWEALTH’S
          NEED FOR THE EVIDENCE WAS SLIGHT IN LIGHT OF
          OTHER EVIDENCE, AND/OR THE EVIDENCE WAS NOT
          OTHERWISE OFFERED FOR A PERMITTED USE UNDER
____________________________________________


7
  See Pa.R.A.P. 311(d) (stating in criminal cases, Commonwealth may take
appeal as of right from order that does not end entire case where
Commonwealth certifies in notice of appeal that order appealed from will
terminate or substantially handicap prosecution of case).



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         RULE 404(B)?

(Commonwealth’s Brief at 4).

      The Commonwealth argues Ms. Simeone formulated a scheme to exact

revenge on Victim for his termination of their relationship by accusing him of

rape and vandalism.     The Commonwealth asserts these acts are strikingly

similar to the incidents described in its notice and amended notice of intent

to introduce evidence of prior bad acts.     The Commonwealth claims the

manner of each offense is the same in that they involve Ms. Simeone’s

attack on an ex-paramour’s property or character at the end of a

relationship. The Commonwealth maintains Ms. Simeone employed similar

“weapons” in each incident by using spray paint in the majority of the

vandalism events or her words to lodge false reports to law enforcement.

The Commonwealth insists Ms. Simeone committed each act for the same

purpose—to seek public retribution against an ex-paramour following

dissolution of the relationship. The Commonwealth highlights that all victims

were Ms. Simeone’s ex-paramours.        The Commonwealth also avers the

timeframe of Ms. Simeone’s actions was continuous from 2009 to 2013, and

demonstrates a clear pattern at the end of her relationships.             The

Commonwealth emphasizes that Ms. Simeone vandalized the property of

S.M., C.O., and D.J., and that Ms. Simeone threatened T.H. and J.S. with

false reports of domestic assaults. The Commonwealth avers Victim suffered

similar false accusations of rape and vandalism by Ms. Simeone.           The


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Commonwealth submits the primary difference between this case and the

prior incidents of vandalism involving her ex-paramours is that Ms. Simeone

vandalized her ex-paramours’ property at their respective homes; here, Ms.

Simeone vandalized her own property and accused Victim of those actions.

The Commonwealth submits the similarities between its proposed evidence

and the facts of the present case reveal a common plan or scheme

admissible under Pa.R.E. 404(b).8

       Additionally, the Commonwealth argues the need for its proposed

evidence is great.          The Commonwealth asserts its case is      largely

circumstantial because the Commonwealth does not have receipts for spray

paint Ms. Simeone purchased or video surveillance confirming Ms. Simeone

bought spray paint. The Commonwealth claims it has only one eyewitness

(Ms. O’Brien) to one act of Ms. Simeone spray painting her own property.

The Commonwealth maintains its case has serious hurdles before a jury due

to the “he said/she said” nature of the case, the obvious question of why Ms.

Simeone would vandalize her own property, and Ms. Simeone’s insistence

that Victim raped her.       The Commonwealth contends it does not offer the

proposed evidence solely to demonstrate Ms. Simeone’s propensity to

commit crimes, but to show her common plan or scheme and her identity as

____________________________________________


8
  Because the Commonwealth no longer seeks to introduce evidence that Ms.
Simeone also vandalized J.V.’s property, we do not consider the events
related to J.V.



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the culprit of the offenses charged.       The Commonwealth emphasizes the

probative value of its proposed evidence is strong, and Ms. Simeone offers

only a blanket allegation of prejudice.       The Commonwealth suggests the

court can issue a cautionary instruction to the jury to consider its proposed

evidence only for its intended purpose. The Commonwealth concludes the

trial court abused its discretion by denying in large part the Commonwealth’s

notice and amended notice to introduce evidence of prior bad acts, and this

Court must reverse. We agree.

      “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).

      Pennsylvania Rule of Evidence 404(b) provides as follows:

         Rule 404. Character Evidence; Crimes or Other Acts

                                 *     *      *


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         (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.

                                  *     *      *

Pa.R.E. 404(b)(1)-(2). “[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) (en banc). 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, evidence of other crimes or bad acts 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,

evidence of prior crimes or bad acts 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,


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190 L.Ed.2d 118 (2014).

     This Court recently explained:

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

Commonwealth v. Tyson, 119 A.3d 353, 358-59 (Pa.Super. 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)). See

also Commonwealth v. Weakley, 972 A.2d 1182 (Pa.Super. 2009),

appeal denied, 604 Pa. 696, 986 A.2d 150 (2009) (explaining in comparing

methods and circumstances of separate crimes, court must necessarily look


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for similarities in number of factors, including: (1) manner in which crimes

were committed; (2) weapons used; (3) ostensible purpose of crime; (4)

location; and (5) type of victims).

      Significantly, “[t]he common scheme exception does not require that

the two scenarios be identical in every respect.” Tyson, supra at 360 n.3

(emphasis in original) (reversing trial court’s exclusion of defendant’s prior

rape conviction in case charging defendant with rape, sexual assault,

indecent assault, and aggravated indecent assault; evidence of prior rape

conviction was admissible under common plan or scheme exception where

facts of prior conviction and facts of current case showed defendant was

invited guest in each victim’s home, was cognizant of each victim’s

compromised state, and had vaginal intercourse with each victim while

victim was unconscious; differences between incidents concerned details

which were not essential to alleged common scheme).        Further, although

“remoteness in time is a factor to be considered in determining the probative

value of other crimes evidence under the theory of common scheme, plan or

design, the importance of the time period is inversely proportional to the

similarity of the crimes in question.” Id. at 359 (quoting Commonwealth

v. Aikens, 990 A.2d 1181, 1185 (Pa.Super. 2010), appeal denied, 607 Pa.

694, 4 A.3d 157 (2010)).

      Evidence of relevant prior crimes or bad acts is admissible “if the

probative value of the evidence outweighs its potential for unfair prejudice.”


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Commonwealth v. Kinard, 95 A.3d 279, 284 (Pa.Super. 2014) (en banc).

“‘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.”   Commonwealth v. Dillon, 592 Pa. 351, 366, 925

A.2d 131, 141 (2007) (quoting Pa.R.E. 403, Comment).

        Evidence will not be prohibited merely because it is
        harmful to the defendant. This Court has stated that it is
        not 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.          Moreover, we have
        upheld the admission of other crimes evidence, when
        relevant, even where the details of the other crime were
        extremely grotesque and highly prejudicial.

Tyson, supra at 360 (quoting Dillon, supra at 367, 925 A.2d at 141).

Where the Commonwealth seeks to introduce evidence of prior bad acts or

other crimes in a case based largely upon circumstantial evidence, admission

of such evidence is particularly important. Weakley, supra at 1191.

     “Additionally, when examining the potential for undue prejudice, a

cautionary jury instruction may ameliorate the prejudicial effect of the

proffered evidence.      …   Jurors are presumed to follow the trial court’s

instructions.” Hairston, supra at 160, 84 A.3d at 666 (holding extraneous

offense of arson was admissible under Rule 404(b) as res gestae evidence in

prosecution for murder; trial court’s instruction on how arson evidence

should be considered minimized likelihood that arson evidence would inflame

jury or cause it to convict defendant on improper basis).           See also

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Commonwealth v. Arrington, 624 Pa. 506, 86 A.3d 831 (2014), cert.

denied, ___ U.S. ___, 135 S.Ct. 479, 190 L.Ed.2d 363 (2014) (holding

evidence of defendant’s prior acts of violence and intimidation against three

other girlfriends was admissible under common plan or scheme exception in

defendant’s trial for murder of most recent girlfriend; evidence concerning

defendant’s treatment of other girlfriends demonstrated repeated efforts by

defendant    to   preserve        intimate   relationships   through    harassment,

intimidation, and physical violence culminating in use of deadly weapon

against murder victim; in each incident, defendant monitored his girlfriend’s

daily activities, resorted to violence when she wanted to end relationship or

interacted with other men, inflicted head or neck injuries with his fist,

handgun, or edged weapon, and harmed or threatened to harm members of

each girlfriend’s family or male acquaintances who defendant viewed as

romantic    rivals;    evidence    was   relevant,   reliable,   and   probative   of

defendant’s guilt; evidence of defendant’s prior bad acts also played

important role where charges in current case were based largely on

circumstantial evidence; although details of prior bad acts were undoubtedly

harmful to defense, those events were significant because they proved

defendant was capable of using deadly force to prevent woman from leaving

him; these considerations, coupled with court’s cautionary instructions at

trial, established that probative value of prior bad acts evidence exceeded

prejudicial impact).


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      Instantly, the Commonwealth charged Ms. Simeone with one count of

false reports to law enforcement authorities in connection with her allegation

of rape against Victim, fourteen (14) counts of false reports to law

enforcement authorities in connection with each act of vandalism Ms.

Simeone reported and accused Victim of perpetrating, one count of

tampering with or fabricating physical evidence in connection with Ms.

Simeone’s submission of photographs of the alleged vandalism and

perpetrator to police, and one count of criminal mischief in connection with

Ms. Simeone’s vandalism to her property and the road in front of her home.

      In its notice and amended notice of intent to introduce evidence of

prior bad acts, the Commonwealth sought to introduce the following

evidence: (1) on or about August 4, 2009, Ms. Simeone vandalized ex-

paramour S.M.’s vehicle with green spray paint shortly after the dissolution

of the relationship; (2) on or about June 20, 2011, again on June 21, 2011,

and a third time on July 8, 2011, Ms. Simeone threw rocks at vehicles

belonging to ex-paramour D.J., twice breaking windows on the vehicle and

once causing a dent in a bumper and on June 20, 2011, Ms. Simeone also

vandalized one vehicle with spray paint; (3) on or about July 29, 2012,

following an argument with paramour T.H., Ms. Simeone told her paramour

she knew how to get him in trouble and then reported a domestic assault to

police; (4) between April 2013 and October 2013, Ms. Simeone, on at least

six occasions, vandalized Victim’s property in Green Township, Pike County


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by spray painting messages such as “Kill All Jews” and “You’re an Asshole”;

(5) on or about November 18, 2013, shortly after a break up with paramour

J.S., Ms. Simeone appeared at her ex-paramour’s residence uninvited and

when he would not let her inside the residence, Ms. Simeone threatened to

call and eventually did call the police to report a domestic assault; and (6)

on September 11, 2009 and September 13, 2009, Ms. Simeone conspired

with others to vandalize her ex-paramour, C.O.’s, vehicle with spray paint on

both occasions.

        Following a pre-trial hearing on February 27, 2015, the court granted

in part and denied in part the Commonwealth’s requested relief on March 18,

2015.     Specifically, the court permitted the Commonwealth to introduce

evidence of Ms. Simeone’s vandalism to Victim’s property between April

2013 and October 2013.        The court prohibited the Commonwealth from

introducing all other proposed evidence involving any other ex-paramour as

irrelevant, not indicative of a common plan or scheme, or outweighed by the

danger of unfair prejudice.

        Nevertheless, the record reveals the following factual similarities

between the present case and Ms. Simeone’s prior bad acts. In each case,

the victim of Ms. Simeone’s actions was an ex-paramour.             Following

dissolution of each relationship, Ms. Simeone vandalized the ex-paramour’s

property (S.M., D.J., Victim, and C.O.) or accused her ex-paramour of

committing some type of assault on her (T.H., J.S., and now Victim). Ms.


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Simeone used spray paint as her primary “weapon” for destruction of the ex-

paramour’s property in the majority of the incidents involving Ms. Simeone’s

vandalism.    Similarly, the present case involves thirteen (out of fourteen)

allegations by Ms. Simeone of vandalism to the road in front of her property

using spray paint.    With respect to the incidents involving Ms. Simeone’s

accusations against her ex-paramours, Ms. Simeone’s “weapon” was her

words publicly attacking the ex-paramour’s reputation in order to support

criminal charges. Likewise, the present case involves fifteen allegations by

Ms. Simeone accusing Victim of criminal acts (one allegation of rape and

fourteen allegations of vandalism). The ostensible purpose of Ms. Simeone’s

prior acts was to exact revenge on her ex-paramours after they ended their

relationships with her.   In the present case, Victim reported to police that

Ms. Simeone’s actions resulted from her apparent dissatisfaction with and

refusal to accept Victim’s termination of their relationship. Thus, the nature

of the victims of Ms. Simeone’s prior bad acts, the manner in which Ms.

Simeone committed those acts, the “weapons” she used to commit those

acts, and the ostensible purpose of Ms. Simeone’s prior bad acts are nearly

identical to the present case.      See Arrington, supra; Tyson, supra;

Weakley, supra.        The details and surrounding circumstances of each

incident reveal criminal conduct that is sufficiently distinctive to establish Ms.

Simeone engaged in a common plan or scheme in which she takes revenge

on her ex-paramours at the end of a relationship. See Arrington, supra;


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Tyson, supra; G.D.M., Sr., supra.              Thus, the Commonwealth’s proposed

evidence was relevant to demonstrate a common plan or scheme under Rule

404.9 See Pa.R.E. 404(b)(2).

       Additionally, evidence of Ms. Simeone’s prior bad acts is not too

remote to negate its probative value. Ms. Simeone vandalized S.M.’s vehicle

in August 2009, conspired with others to vandalize C.O.’s vehicle on two

occasions in September 2009, vandalized D.J.’s vehicles on three occasions

in June and July 2011, accused T.H. of domestic assault in July 2012,

vandalized Victim’s property on six occasions between April 2013 and

October 2013, and accused J.S. of domestic assault in November 2013.10

____________________________________________


9
  To the extent differences exist between Ms. Simeone’s prior bad acts and
the conduct charged, these details are not essential to the common scheme.
For example, Ms. Simeone threw rocks at D.J.’s vehicle on two occasions,
whereas in the majority of the other vandalism acts she used spray paint.
The common scheme, however, does not require the use of spray paint to
vandalize an ex-paramour’s property. The salient facts of each case are that
Ms. Simeone took revenge on an ex-paramour by destroying his property or
his reputation.     The method in which Ms. Simeone committed that
destruction is not dispositive, as the exception does not require the
scenarios to be identical in every respect. See Tyson, supra. Likewise,
the fact that Ms. Simeone vandalized the property of her ex-paramours in
the prior incidents and vandalized her own property in this case, does not
negate the common scheme exception. See id. To the contrary, Ms.
Simeone’s destruction of her own property and subsequent accusation of
blame on Victim reveals an escalation of her prior bad acts because it
implicates Victim in criminal activity causing damage to his reputation (and
perhaps livelihood) instead of just his property. See Arrington, supra.
10
   In its amended notice of intent to introduce evidence of prior bad acts, the
Commonwealth withdrew its proffered evidence of Ms. Simeone’s vandalism
of J.V.’s property that took place on two occasions in July 2010.



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Consequently, Ms. Simeone’s actions have been continuous from 2009 to

2013; any lapse in time is certainly not “excessive.”       See Tyson, supra.

Moreover, the similarities of the prior bad acts and the facts of the current

case render any remoteness even less important. See id.; Aikens, supra.

      Further,   the   probative   value   of   the   Commonwealth’s   proposed

evidence outweighs its potential for unfair prejudice.      Ms. Simeone’s prior

bad acts should not be shielded from the factfinder merely because they are

harmful to Ms. Simeone; the question is whether evidence of her prior bad

acts would be unfairly prejudicial. See Dillon, supra; Tyson, supra. The

substantial similarities between the prior bad acts and the facts of this case

give the Commonwealth’s proposed evidence considerable probative value.

Ms. Simeone’s prior bad acts are particularly important in this case because

the Commonwealth’s evidence against Ms. Simeone is largely circumstantial.

The Commonwealth lacks direct evidence to show Ms. Simeone purchased

spray paint to deface her own property and lacks eyewitnesses to the

majority of the crimes charged.      The Commonwealth contends it has only

one eyewitness who will testify Ms. Simeone was the actual perpetrator of

only one of the fourteen acts of vandalism on or near Ms. Simeone’s

property.   Regarding the false reports charge involving Ms. Simeone’s

allegation of rape against Victim, the record confirms that Ms. Simeone still

insists Victim raped her, suggesting a “he said/she said” scenario will play

out at trial. See Weakley, supra.


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      Moreover, to alleviate the potential for unfair prejudice, the court can

issue a cautionary instruction to the jury regarding the limited purpose of

the evidence and clarify that the jury cannot treat the prior bad acts as proof

of Ms. Simeone’s bad character or criminal tendencies.          See Hairston,

supra. Jurors are presumed to follow the trial court’s instructions. See id.

Given the substantial similarities between the current crimes and Ms.

Simeone’s prior bad acts, and the importance of the common scheme

evidence to the Commonwealth’s case, we conclude the trial court erred

when it found the Commonwealth’s proposed evidence relative to ex-

paramours other than Victim was inadmissible under the common scheme

exception to Rule 404. Accordingly, we affirm the order granting admission

of   the    Commonwealth’s   evidence   concerning    Ms.   Simeone’s   acts   of

vandalism on Victim’s property; we reverse the court’s order in all other

respects.

      Order affirmed in part, reversed in part.      Case remanded for further

proceedings. Jurisdiction is relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/2015



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