J-S15041-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

AARON EVANS,

                            Appellant                No. 2497 EDA 2012


              Appeal from the Judgment of Sentence July 27, 2012
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0002396-2010


BEFORE: BENDER, P.J.E., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED FEBRUARY 29, 2016

        Appellant, Aaron Evans, appeals from the judgment of sentence

imposed after his jury conviction of one count each of rape, attempted rape,

involuntary deviate sexual intercourse, terroristic threats, and two counts

each of endangering the welfare of children, corruption of minors, and

possession of an instrument of crime.1 We affirm.

        We begin by noting that this case is a procedural quagmire replete

with represented Appellant’s pro se filings, his multiple counseled requests


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  18 Pa.C.S.A. §§ 3121(a)(6), 901(a), 3123(a)(6), 2706(a)(1), 4304(a),
6301(a)(1), and 907(a), respectively.
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for remand, counsel’s stated intent to file an Anders2 brief, and then his

later decision to complete a merits brief, and the unavailability of certain

notes of testimony. In light of this, we will present only the relevant factual

and procedural histories, which we take from the trial court’s January 29,

2015 opinion and our independent review of the record.

        On March 18, 2010, the Commonwealth filed an information against

Appellant for his rape and related crimes against the victim who was the

minor granddaughter of his paramour, with whom he had lived for several

years. On January 5, 2011, the Commonwealth filed a notice of its intent to

introduce    evidence     of   other    crimes,   wrongs,   or   acts   pursuant   to

Pennsylvania Rule of Evidence 404(b).3 Specifically, the notice provided that

the Commonwealth intended to introduce

        evidence that [Appellant] had sexual contact with [the victim’s
        younger sister, K.B.] Specifically, when [K.B.] was 12 years old,
        [Appellant] squeezed her vagina while “play fighting” and
        attempted to put his hand up her shirt to touch her bare breast.
        This occurred at 1316 S. Hicks St. where [Appellant] lived with
        [K.B.’s] grandmother.

              This evidence will be introduced for several reasons,
        including but not limited to the following: to show [Appellant’s]
        common plan, scheme or design; to bolster the credibility of the
        victim; to show [Appellant’s] intent; to show [Appellant’s] state
____________________________________________


2
    Anders v. California, 386 U.S. 738 (1967).
3
  “In a criminal case the prosecutor must provide reasonable notice in
advance of trial . . . of the general nature of any such evidence [of a
defendant’s crime, wrong, or other act] the prosecutor intends to introduce
at trial.” Pa.R.E. 404(b)(3).



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       of mind; to help establish the elements of charges such as
       [r]ape and related offenses.

(Notice of Intent to Introduce Other Acts Evidence, 1/05/11, at 1).

       The court permitted the Commonwealth to present the other acts

evidence.4 The jury trial commenced on March 24, 2011.

       The victim was seventeen years old at the time of trial. She testified

that Appellant was her grandmother’s live-in boyfriend, and that he had a

close relationship with the family. However, she stated that in 2002, when

she was nine or ten years old, Appellant forcibly raped her at her

grandmother’s house while threatening her with a knife he took out of a bed

stand. He threatened to kill her, her mother, and her baby cousin if she told

anyone about the rape. Therefore, although the victim’s vagina continued to

hurt, and her mother found blood on her panties days later, she denied to
____________________________________________


4
    Because a relevant transcript on this issue does not exist, this Court
ordered Appellant to file a Rule 1923 statement in lieu of transcript on July
15, 2014. (See Per Curiam Order, 7/15/14); see also Pa.R.E. 404(b);
Pa.R.A.P. 1923. Appellant complied with the mandates of Rule 1923 and the
trial court approved his Rule 1923 statement, and adds that it “agrees that
the [Rule 404(b) evidentiary issue was] addressed and resolved on the
record, either in open court or in chambers, and that the record would be
contained in the missing notes.” (Trial Court Opinion, 1/29/15, at 4).

       The certified record contains a March 23, 2011 order granting the
Commonwealth’s “motion” to introduce other acts evidence. (See Order,
3/23/11). However, this order does not appear on the docket, and is not
signed by the trial judge, although his name is typed under the signature
line. (See id.). Moreover, the Commonwealth filed a notice, not a motion.
However, it is undisputed that the trial court addressed Appellant’s objection
to the Rule 404(b) notice, and resolved the matter in the Commonwealth’s
favor.



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her mother that anyone had touched her. Appellant continued to harass her

anytime she went to her grandmother’s house thereafter.

      In 2009, Appellant cornered the victim in a bathroom at her

grandmother’s house, with his penis exposed, and attempted again to rape

her at knife point. This time the victim was able to fight back, and in spite

of severely injuring her wrist in Appellant’s attack, she again did not tell her

parents out of fear of reprisal.     Ultimately, a school nurse noticed the

victim’s wrist injury and her father took her to the hospital, where they

diagnosed her with a fracture. Later that year, due to the victim acting out,

her mother placed her in a program for troubled teens. As a result of the

program, the victim wrote a letter to her mother in which she finally told her

what Appellant had done to her in 2002 and 2009.

      The Commonwealth introduced the testimony of the victim’s younger

sister, K.B., about other bad acts perpetrated by Appellant on her.        K.B.

testified consistent with the Commonwealth’s January 5, 2011 other acts

notice that, in 2009, when she was twelve years old, she was at her

grandmother’s house when Appellant rubbed her stomach, tried to touch her

breasts, and squeezed her vagina.

      Appellant testified on his own behalf.         He described his close

relationship to his paramour’s family and denied any wrongdoing, and stated

that he neither carried a knife nor kept one in the bed stand.




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       The trial court provided the jury with a limiting instruction on the

permissible uses of K.B.’s other bad acts testimony. On March 28, 2011, at

the conclusion of trial, the jury convicted Appellant of the aforementioned

charges.    On July 27, 2012, after granting several continuances, the trial

court sentenced Appellant to an aggregate term of not less than twelve-and-

one-half nor more than twenty-five years’ incarceration.         Appellant timely

appealed on August 23, 2012.5

       Appellant raises one issue for our review:6

____________________________________________


5
   In response to the trial court’s order that he file a Rule 1925(b) statement,
Appellant’s counsel initially filed a notice of his intent to file an Anders brief.
See Pa.R.A.P. 1925(b), (c)(4). Thereafter, as stated previously, this case
became a procedural quagmire, thus causing multiple delays of its
disposition. However, pertinent to this review, Appellant’s counsel ultimately
filed a Rule 1925(b) statement nunc pro tunc on August 22, 2014. See
Pa.R.A.P. 1925(b). The trial court filed an opinion on January 29, 2015.
See Pa.R.A.P. 1925(a).
6
   Appellant observes that our June 9, 2015 Order vacated a then-existing
briefing schedule without prejudice to this merits panel’s finding of waiver
for any issue that had not been included in Appellant’s previously filed March
19, 2014 brief. (See Per Curiam Order, 6/09/15; see also Appellant’s Brief,
at 17-19). We accept his claim that waiver is not appropriate. Our June 15,
2014 Order granted his petition for remand for the preparation of a Rule
1923 statement in lieu of transcript, and provided that, if any non-frivolous
errors were apparent from the record, he could request to file a Rule
1925(b) statement nunc pro tunc, and our Prothonotary would establish a
new briefing schedule.     (See Per Curiam Order, 7/15/14).           Appellant
complied with our Order by submitting a Rule 1923 statement to the trial
court for approval, and requesting the trial court that he be allowed to file a
Rule 1925(b) statement nunc pro tunc. After the court’s approval, Appellant
filed a Rule 1925(b) statement nunc pro tunc, our Prothonotary established
a new briefing schedule, and Appellant filed the brief currently under review.
Therefore, due to the procedural posture of this case, we agree with
(Footnote Continued Next Page)


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            Did not the trial court err in admitting “other acts”
      evidence at trial since the allegations presented by the
      Commonwealth in its “Notice of Intent to Introduce Other Acts
      Evidence” were insufficient to support the admission at trial of
      evidence of other acts by [Appellant], and where the evidence
      was prohibited pursuant to Pa.R.E. 404, where no proper non-
      propensity purpose existed for the admission of said evidence,
      and where even if such a non-propensity purpose did exist, the
      probative value of the evidence did not outweigh its potential for
      unfair prejudice?

(Appellant’s Brief, at 3).7

      Our standard of review of this matter is well-settled:

      Admission of evidence rests within the discretion of the trial
      court, and we will not reverse absent an abuse of discretion.
      Discretion is abused when the course pursued represents not
      merely an error of judgment, but where the judgment is
      manifestly unreasonable or where the law is not applied or
      where the record shows that the action is a result of partiality,
      prejudice, bias or ill will.

            Generally speaking, evidence is admissible if it is relevant,
      that is, if it logically tends to establish a material fact in the
      case, tends to make a fact at issue more or less probable or
      supports a reasonable inference or presumption regarding a
      material fact.       Pa.R.E. 402.     It is settled law in this
      Commonwealth that other bad acts evidence is inadmissible to
      prove a defendant’s propensity to commit crime. Nonetheless,
      bad acts evidence may be introduced for other limited purposes,
      including, but not limited to, establishing motive, opportunity,
      intent, preparation, plan, knowledge, identity or absence of
      mistake or accident, common scheme or design, modus
      operandi, and the natural history of the case. Pa.R.E. 404(b)(2).
                       _______________________
(Footnote Continued)

Appellant that he did not waive his appellate issue, and we will review its
merits.
7
 The Commonwealth has not filed a brief in this matter, despite the fact that
we granted its application for an extension of time within which to do so.
(See Per Curiam Order, 10/28/15).



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       This evidence is admissible only if the probative value of the
       evidence outweighs its potential for unfair prejudice.

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

citations and quotation marks omitted).          Further, we note that “[t]he

particular prejudice that Rule 404(b)(3) seeks to prevent is the misuse of

the other-offense evidence-specifically, that jurors might convict a defendant

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

commit crimes.”       Commonwealth v. Cascardo, 981 A.2d 245, 251 (Pa.

Super. 2009), appeal denied, 12 A.3d 750 (Pa. 2010).

       Here, Appellant maintains that the trial court erred in allowing the

Commonwealth to admit prior bad acts evidence because the evidence of the

other acts was presented to the court “in a vacuum.” (Appellant’s Brief, at

23).   Specifically, Appellant argues that “there was simply no showing of

relevance or of sufficiently weighty probative value of the ‘other acts’

evidence, as is required by Rule 404(b).” (Id. at 26). We disagree.8

       We first observe that:

             “In criminal cases, the prosecution shall provide
       reasonable notice in advance of trial . . . of the general nature of
       any such evidence it intends to introduce at trial.” Pa.R.E.
       404(b)(4).   The purpose of this rule “is to prevent unfair
       surprise, and to give the defendant reasonable time to prepare
____________________________________________


8
   Appellant argues that the trial court erred in justifying a pre-trial
evidentiary decision on the basis of evidence presented at trial. (See
Appellant’s Brief, at 25). However, the court’s decision is supported by the
allegations contained in the certified record as it existed when the court
decided the issue.



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     an objection to, or ready a rebuttal for, such evidence.” Pa.R.E.
     404, cmt.

Commonwealth v. Lynch, 57 A.3d 120, 125-26 (Pa. Super. 2012), appeal

denied, 63 A.3d 1245 (Pa. 2013).

     In this case, the Commonwealth properly filed its notice of intent to

introduce other acts evidence over two months before this case went to trial.

(See Notice of Intent to Introduce Other Acts Evidence, 1/05/11).        The

notice stated that the victim’s minor sister, K.B., would testify about

Appellant’s inappropriate sexual contact with her in her grandmother’s

home. (See id.).    It also apprised Appellant of the reasons for which the

Commonwealth sought to introduce the evidence. (See id.). Therefore, the

notice provided Appellant with “the general nature of [the] evidence it

intend[ed] to introduce at trial” and prevented any unfair surprise, by

allowing him time to object to the proposed testimony.     Lynch, supra at

126; see also Pa.R.E. 404(b)(3).

     On March 23, 2011, when the court considered Appellant’s objection to

the proposed evidence, it was aware of the factual background of this case

and the allegations against Appellant based on the documents contained in

the record.   For instance, the affidavit of probable cause recited that the

minor victim reported that, seven years prior, when she was nine or ten

years old, she had been raped and sexually assaulted by Appellant, i.e., her

grandmother’s boyfriend, in her grandmother’s home; that Appellant had

threatened her with a knife if she resisted; and that she was afraid to say

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anything sooner because he stated he would harm her family if she told

anyone.   (See Affidavit of Probable Cause, 12/15/09, at 2).       The victim’s

mother stated that she remembered the victim complaining of a stomach

ache around that time, and that the victim had blood on her underwear, but

that she denied that anyone had touched her.         (See id.).   The criminal

complaint, in addition to the foregoing, included the fact that, in the summer

of 2009, the victim stated that Appellant again attempted to rape her at her

grandmother’s home while brandishing a knife.        (See Criminal Complaint,

2/22/10, at unnumbered page 2).

      In explaining its decision to allow the Commonwealth to introduce the

proposed evidence, the trial court stated:

      Due to the lapse of time, the fact that the victim’s testimony was
      to a large extent uncorroborated, and [Appellant’s] denials of the
      events, the evidence of the other acts was needed by the
      Commonwealth for all the permitted purposes set forth in the
      Rule and delineated in its notice. The probative similarities in all
      of the details of the incidents allowed a reasonable fact finder to
      conclude that there were logical connections between them, and
      the court’s instructions safeguarded him against any potential
      undue prejudice. . . .

(Trial Ct. Op., at 11).

      We agree and conclude Appellant’s argument, that the court could not

decide the relevancy of the proposed bad acts evidence, to be unpersuasive.

The notice stated that the victim’s sister would testify that, when twelve

years’ old, Appellant, who was her grandmother’s live-in boyfriend, sexually

assaulted her at her grandmother’s house.          (See Notice of Intent to


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Introduce Other Acts Evidence, 1/05/11). Similarly, Appellant was charged

with raping the victim, the witness’s sister, at the grandmother’s house

when the victim was approximately ten years’ old, and attempting to do so

again when she was sixteen. (See Affidavit of Probable Cause, 12/15/09, at

2; Criminal Complaint, 2/22/10, at unnumbered page 2).

      The similarities between Appellant’s actions against the victim in this

case, and his alleged behavior with the victim’s sister, rendered the sister’s

proposed testimony not only relevant, but necessary to enable the

Commonwealth to establish Appellant’s common plan, scheme, or design,

and his modus operandi.         See Kinard, supra at 284; see also

Commonwealth v. Aikens, 990 A.2d 1181, 1185-86 (Pa. Super. 2010),

appeal denied, 4 A.3d 157 (Pa. 2010) (concluding court properly allowed

other acts evidence where victim and witness were of similar ages, both had

same familial relationship with defendant, and he initiated sexual contact

under very similar circumstances). Therefore, Appellant’s claim lacks merit.

See Cascardo, supra at 251.

      Therefore, we conclude that the trial court did not palpably abuse its

discretion when it allowed the Commonwealth to introduce other bad acts

evidence. See Kinard, supra at 284; Aikens, supra at 1185-86.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/29/2016




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