J-A20032-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    GARY L. CAIN JR.                           :
                                               :
                       Appellant               :      No. 1200 MDA 2018

       Appeal from the Judgment of Sentence Entered February 8, 2018
                In the Court of Common Pleas of Centre County
            Criminal Division at No(s): CP-14-CR-0000280-2017


BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.E.:                       FILED OCTOBER 25, 2019

       Appellant, Gary L. Cain Jr., appeals from the judgment of sentence

entered in the Centre County Court of Common Pleas, following his jury trial

convictions for one count each of rape, statutory sexual assault, involuntary

deviate sexual intercourse (“IDSI”) with a person less than 16 years old,

attempted IDSI with a person less than 16 years old, sexual assault, and

corruption of minors (“COM”), two counts of indecent assault, and sixteen

counts of unlawful contact with a minor.1 We affirm.

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

March 17, 2017, the Commonwealth charged Appellant with 158 counts of

various sex offenses in relation to sexual assaults Appellant committed on

____________________________________________


1 18 Pa.C.S.A. §§ 3121(a)(1); 3122.1; 3123(a)(7); 901 (section 3123(a)(7)
related); 3124.1; 6301(a)(1)(ii); 3126(a)(1), (8); 6318(a)(1), respectively.
J-A20032-19


Victim between January 1, 2007 and June 30, 2016, beginning when Victim

was 12 years old. Victim was acquainted with Appellant because he was a

neighbor, and Appellant and his family lived with Victim for a short time after

Appellant’s house was damaged by fire. Specifically, the affidavit of probable

cause alleged, inter alia:

         The following are [V]ictim’s [recollections] of the assaults.
         It is believed Probable Cause exists to indicate that
         [Appellant] had anally raped [Victim] on (13) different
         occasions, once while she was less than 13 [years old]. He
         had also attempted to have sex with her on another
         occasion and indecently assaulted her on a separate one.

         - At a time period when [Appellant] was rebuilding his house
         in Unionville ([h]is original house burnt down in Dec 2012)
         he put [V]ictim’s head between his legs while both were
         clothed. Only inappropriate touching occurred. Victim
         believed to be 12 [years old] at [the] time.

         - On another occasion while [Appellant] was rebuilding his
         house, he was sitting on a chair with [Victim] in the living
         room and performed anal sex on her against her wishes.
         She was believed to be 12 [years old] at the time.

         - When [Victim] lived beside [Appellant] in Unionville, he
         had her come into his bedroom and performed anal sex on
         her against her wishes. She was believed to be 13 [years
         old] at the time.

         - When at [Victim’s] house in Unionville, [Appellant] had
         anal sex with her while he and his family were staying with
         them until he could move into his rebuilt house ([f]rom Dec
         2012-Jan 2013). She would have been 13 [years old] at the
         time.

         - When [Victim] was over at [Appellant’s] house after the
         rebuild, [Appellant] forced anal sex with her in his
         daughter’s bedroom when no one else was home. She
         would have been 13 [years old].


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       - At [Appellant’s] residence in the bathroom after the
       rebuild. His other family members were busy at the time
       with company. He performed anal sex with her. [Victim]
       would have been 13 years old at [the] time.

       - At [Appellant’s] house after the rebuild in his living room
       on the couch. It was just her and [Appellant] present at
       [the] time. He took off his pants and had her get [on top]
       of him and began “humping” her with clothes on before
       someone came to the residence door. [Victim] would have
       been 13 [years old].

       - At [Victim’s] house [in Milesburg] in her bedroom.
       [Victim’s] mother and sisters were there. He forced her to
       have anal sex with her. She would have been 14 [years old]
       at this time.

       - In [Appellant’s] truck when [Victim] lived…in Milesburg.
       [Appellant] drove his truck back somewhere away from
       houses not far from where she was living. He parked it and
       performed anal sex on her. She was 14 [years old] at this
       time.

       - At the Howard Dam at [the] time when [Victim] was still
       living [in Milesburg]. [Appellant’s wife] had picked her up
       and taken her there. The three of them were there when
       [Appellant] sent [his wife] to get something in the car.
       [Appellant] then forced her to have anal sex. She was 14
       [years old] at the time.

       - Two occasions in the woods when [Victim] was living [in
       Milesburg]. [Victim] was going to her [grandmother’s]
       house in Unionville when [Appellant] asked her to go back
       in the woods with him. He performed sex on her from the
       front and she believed she was bleeding. He still made her
       have anal sex with him. She stated that her “butt” and front
       hurt after the incident(s).

       - There was an incident in the weeds by [Victim’s
       grandmother’s] house in Unionville. [Victim] was living [in
       Milesburg]. [Appellant] forced her to have anal sex with
       him. She would have been 14 [years old] at the time.

       - At a hotel on Benner Pike in Bellefonte. Believed it was

                                   -3-
J-A20032-19


         Econolodge. [Victim] lived in Bellefonte at the time and
         [Appellant] picked her up under the premise that he was
         going to get tires on his truck. He rented a room for a few
         hours and had anal sex with her. She was 16 [years old] at
         the time.

         - At the Kepler Pool parking lot when [Victim] was living in
         Bellefonte. He forced her to have anal sex with him. She
         would have been 16 [years old] at the time.

         All of the aforementioned incidents happened against
         [V]ictim’s wishes.

(Affidavit of Probable Cause, dated February 10, 2017, at 1-2).

      On November 3, 2017, the Commonwealth filed a motion in limine for

introduction of evidence of prior bad acts, pursuant to Pa.R.E. 404(b).

Specifically, the Commonwealth sought to introduce the following evidence:

(1) in July of 1994, Appellant lured 13-year-old E.S. into his car in the middle

of the night under false pretenses; Appellant drove E.S. to a secluded parking

lot and forcibly raped her; Appellant told E.S. not to tell anyone; (2) on July

25, 2000, Appellant pled guilty to six counts of statutory sexual assault and

one count each of COM and aggravated indecent assault, in connection with

Appellant’s sexual assaults on J.D.; Appellant had sex with J.D. six times

between September 11, 1999 and November 20, 1999; J.D. was 13 years old

at the time; the court sentenced Appellant on April 25, 2001, to an aggregate

5 to 10 years’ imprisonment; (3) on July 25, 2000, Appellant pled guilty to

three counts of statutory sexual assault and one count of COM, in connection

with Appellant’s sexual assaults on A.H.; Appellant had sex with A.H. three

times between September 1, 1999 and November 26, 1999; A.H. was

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approximately 15 years old at the time; the court sentenced Appellant to an

aggregate 5 to 10 years’ imprisonment (concurrent with the sentence imposed

relative to J.D.); (4) on July 25, 2000, Appellant pled guilty to one count each

of aggravated indecent assault and COM, and three counts of indecent assault,

in connection with Appellant’s sexual assaults on M.V.; Appellant had sexual

contact with M.V. twice between November 1, 1999 and January 28, 2000;

M.V. was approximately 14 years old at the time; Appellant took M.V. for a

ride to a secluded location and assaulted her in his car; the court sentenced

Appellant to an aggregate 5 to 10 years’ imprisonment (concurrent with the

sentence imposed relative to J.D. and A.H.), plus 10 years’ probation.

      The Commonwealth argued evidence of Appellant’s prior bad acts was

strikingly similar to the current offenses, highly probative, and demonstrated

a common plan, scheme or design. The Commonwealth emphasized that each

of Appellant’s victims was a young teenage girl, between the ages of 12 and

15 when the assaults began, who was an acquaintance or neighbor of

Appellant. In each instance, Appellant found ways to be alone with his victims.

The Commonwealth insisted Appellant’s prior offenses were similar to the

current offenses, in which Appellant sexually assaulted Victim over a dozen

times when she was between 12 and 16 years old, in multiple parking lots,

secluded locations, and in his or Victim’s bathroom or bedroom.             The

Commonwealth maintained the proffered evidence showed a clear pattern of

behavior. The Commonwealth contended its substantial need to present the


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proffered evidence because Appellant assaulted Victim in private over a period

of years, leading to a lack of forensic evidence. As well, the Commonwealth

claimed the proffered evidence was necessary to rebut Appellant’s theory that

Victim fabricated the allegations.   The Commonwealth further averred the

court should exclude the time of Appellant’s incarceration (from March 28,

2000 to December 4, 2006) when conducting a remoteness analysis.

      On November 6, 2017, Appellant filed a motion in limine to admit

evidence of “manipulation” and a “civil conspiracy to fabricate.” Specifically,

Appellant alleged, inter alia, he has two daughters who were sexually

assaulted by William Beck.    Appellant maintained the Commonwealth was

currently prosecuting William Beck for those sexual assaults.        Appellant

claimed David Beck (William Beck’s brother) dates or is best friends with

Victim. Appellant insisted William Beck was arrested on or around June 8,

2016. Appellant emphasized that David Beck called police on or around June

22, 2016, to report the current sexual offenses by Appellant on Victim.

Appellant sought to introduce evidence of various jailhouse recordings

between William Beck and other members of the Beck family during June

2016, in which William Beck stated he would only get 5 to 10 years’

imprisonment in connection with his sexual assaults on Appellant’s daughters,

if he could implicate Appellant in any type of criminal wrongdoing. Appellant

contended   the   jailhouse   recordings   expressly   discussed   Victim   and

encouraged Victim to report Appellant’s assaults.       Appellant insisted the


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proffered evidence showed a relationship between Victim and the Beck family

and Victim was fabricating the allegations against Appellant in retaliation for

Appellant’s accusations that William Beck had sexually assaulted his

daughters.

       The court held a motion in limine hearing on November 7, 2017. On

November 9, 2017, the court denied both motions.               That day, the

Commonwealth filed a motion for reconsideration. The court held a hearing

on the Commonwealth’s motion for reconsideration on November 13, 2017.

At the conclusion of the hearing, the court permitted the Commonwealth to

introduce evidence of Appellant’s prior bad acts concerning only M.V. and A.H.

       Appellant proceeded to a jury trial on November 14, 2017.            On

November 15, 2017, the jury convicted Appellant of one count each of rape,

statutory sexual assault, IDSI with a person less than 16 years old, attempted

IDSI with a person less than 16 years old, sexual assault, and COM, two counts

of indecent assault, and sixteen counts of unlawful contact with a minor. The

court sentenced Appellant on February 8, 2018, to an aggregate 175 to 350

years’ imprisonment.         Appellant timely filed post-sentence motions on

Tuesday, February 20, 2018.2 The court held a hearing on Appellant’s post-

sentence motions on May 11, 2018, and denied relief on June 22, 2018.


____________________________________________


2 February 18, 2018 was a Sunday and the court was closed on Monday,
February 19, 2018 for Presidents’ Day. See 1 Pa.C.S.A. § 1908 (explaining
whenever last day of any filing period falls on Saturday or Sunday, or on any
legal holiday, that day shall be omitted from computation).

                                           -7-
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Appellant timely filed a notice of appeal on July 18, 2018. On August 9, 2018,

the court ordered Appellant to file a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b), which Appellant timely filed on

August 22, 2018.

      Appellant raises two issues for our review:

         WHETHER THE TRIAL COURT ERRED IN PROHIBITING
         APPELLANT FROM INTRODUCING RELEVANT, RELIABLE,
         AND EXCULPATORY EVIDENCE IN THE FORM OF WILLIAM
         BECK’S JAILHOUSE RECORDINGS AT TRIAL?

         WHETHER THE TRIAL COURT ERRED IN GRANTING THE
         COMMONWEALTH’S MOTION FOR RECONSIDERATION,
         WHICH PERMITTED THE ADMISSION OF PRIOR BAD ACT
         EVIDENCE IN THE FORM OF APPELLANT’S PAST CRIMINAL
         CONVICTIONS    FOR  CONDUCT    THAT    WAS    NOT
         SUFFICIENTLY SIMILAR TO THE CHARGES AT ISSUE,
         WHERE THE PRIOR BAD ACTS WERE ADMITTEDLY BEING
         USED TO SHOW PROPENSITY ON BEHALF OF APPELLANT
         AND BOLSTER THE TESTIMONY OF THE COMPLAINING
         WITNESS, AND WHERE THE PREJUDICIAL EFFECT OF THIS
         EVIDENCE GREATLY OUTWEIGHED ANY ARGUABLE
         PROBATIVE VALUE?

(Appellant’s Brief at 11).

      Our standard of review of a trial court’s admission or exclusion of

evidence is well established and very narrow:

         Admission of evidence is a matter within the sound
         discretion of the trial court, and will not be reversed absent
         a showing that the trial court clearly abused its discretion.
         Not merely an error in judgment, an abuse of discretion
         occurs when the law is overridden or misapplied, or the
         judgment exercised is manifestly unreasonable, or the
         result of partiality, prejudice, bias, or ill-will, as shown by
         the evidence on record.

Commonwealth v. Montalvo, 604 Pa. 386, 403, 986 A.2d 84, 94 (2009),

                                      -8-
J-A20032-19


cert. denied, 562 U.S. 857, 131 S.Ct. 127, 178 L.Ed.2d 77 (2010) (internal

citations and quotation marks omitted). Our scope of review in cases where

the trial court explains the basis for its evidentiary ruling is limited to an

examination of the stated reason. Commonwealth v. Stephens, 74 A.3d

1034, 1037 (Pa.Super. 2013). “We must also be mindful that a discretionary

ruling cannot be overturned simply because a reviewing court disagrees with

the trial court’s conclusion.” Commonwealth v. O’Brien, 836 A.2d 966, 968

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

      In     his   first   issue,   Appellant   argues   the     jailhouse   recordings

demonstrated Victim’s relationship with the Beck family and suggested

Victim’s motive to fabricate the allegations against Appellant.              Appellant

asserts the recordings were reliable, relevant, and exculpatory evidence

because they showed Victim’s bias against Appellant. Appellant claims the

recordings are not hearsay because Appellant offered them only to show

Victim’s motive to lie, and not for the truth of the matter asserted. In any

event, Appellant contends the recordings were admissible under the

“statement against interest” hearsay exception.            Appellant maintains the

probative value of the recordings vastly outweighed its prejudicial effect.

Appellant insists the recordings were the only way to prove Victim’s motive to

fabricate.    Appellant highlights a remark from the notes of a Children and

Youth Services (“CYS”) caseworker expressing concern that Mary Beck was

“filling [Victim’s] head full of stuff in retaliation.”        Appellant contends the


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caseworker’s note supported his claim of a motive to fabricate.          Appellant

concludes the trial court’s exclusion of the jailhouse recordings was improper,

and this Court must reverse and remand for a new trial.3 We disagree.

       “The threshold inquiry with the admission of evidence is whether the

evidence is relevant.”        Commonwealth v. Stokes, 78 A.3d 644, 654

(Pa.Super. 2013), appeal denied, 625 Pa. 636, 89 A.3d 661 (2014). “Evidence

is relevant if it logically tends to establish a material fact in the case, tends to

make a fact at issue more or less probable, or supports a reasonable inference

or presumption regarding the existence of a material fact.” Id. See also

Pa.R.E. 401 (defining relevant evidence).          Nevertheless, “[t]he court may

exclude relevant evidence if its probative value is outweighed by a danger of

one or more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.” Pa.R.E. 403. See also Commonwealth v. Cook, 544

Pa. 361, 676 A.2d 639 (1996), cert. denied, 519 U.S. 1119, 117 S.Ct. 967,

136 L.Ed.2d 851 (1997) (holding trial court properly excluded defendant’s

proffered testimony from four witnesses, that victim owed money to his drug

supplier, to support defense theory that Appellant did not commit crimes at


____________________________________________


3 To the extent Appellant raises a due process argument on appeal, that
particular claim is waived for failure to specify it in his Rule 1925(b) statement.
See Commonwealth v. Hansley, 24 A.3d 410 (Pa.Super. 2011), appeal
denied, 613 Pa. 642, 32 A.3d 1275 (2011) (explaining vague concise
statement is functional equivalent of no statement at all; failure to specify
claim of error in concise statement constitutes waiver on appeal).

                                          - 10 -
J-A20032-19


issue; proffered evidence was merely speculative and had little to no probative

value).

      Instantly, the trial court addressed this issue as follows:

          [Appellant] sought to introduce jailhouse recordings of
          William Beck and [Mr.] Beck’s family. The recordings clearly
          indicate William Beck’s hatred of [Appellant] and [Mr.]
          Beck’s willful desire to…provide testimony against
          [Appellant]. There is nothing in the records demonstrating
          a plan to have [V]ictim in this case fabricate allegations or
          testimony. The [c]ourt determined that this speculative
          evidence must be excluded because its probative value was
          significantly outweighed by its likelihood to confuse the
          issues and mislead the jury.

(Opinion in Support of Denial of Post-Sentence Motions, filed June 22, 2018,

at 1-2). We see no reason to disrupt the court’s analysis. See Montalvo,

supra; Stephens, supra; O’Brien, supra.

      The record shows Victim was not a party to any of the proffered jailhouse

recordings. Additionally, the recordings did not indicate a plan for Victim to

fabricate allegations. To the contrary, the recordings demonstrated only that

Victim disclosed Appellant’s sexual abuse to a member of the Beck family.

The fact that William Beck believed he might receive a more lenient sentence

in his own case for providing information about Appellant’s abuse of Victim did

not mean Victim fabricated the abuse. Consequently, the recordings were not

exculpatory, and the trial court properly excluded them as speculative,

confusing, and not probative. See Pa.R.E. 403; Cook, supra.

      Moreover,     the    jury    heard      testimony    regarding      Victim’s

friendship/relationship with David Beck, William Beck’s pending charges for

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sexually assaulting Appellant’s daughters, CYS’ warning to Victim’s mother to

keep Victim away from David Beck, and David Beck’s initial report to police of

Appellant’s sexual assaults on Victim. Thus, the jury heard other evidence to

support Appellant’s theory of fabrication but rejected that theory. Therefore,

Appellant’s first issue merits no relief.4

       In his second issue, Appellant argues the Commonwealth’s proffered

evidence of prior bad acts was not substantially similar to the crimes charged

in the current case. Appellant emphasizes Victim’s allegations of anal sex at

various locations, which Appellant insists are wholly different from the

allegations of A.H. and M.V. Appellant contends his convictions involving A.H.

and M.V. are almost 20 years old. Appellant stresses the probative value of

the prior bad acts evidence was outweighed by unfair prejudice. Appellant

claims the Commonwealth’s position that the prior bad acts evidence was

particularly important to rebut Appellant’s theory of fabrication was baseless,

because the court had already precluded the jailhouse recordings. Appellant

concludes the admission of evidence of Appellant’s prior bad acts was

improper, and this Court must reverse and remand for a new trial. 5        We


____________________________________________


4Due to our disposition, we do not have to decide whether the recordings met
any hearsay exception.

5 Appellant also argues the Commonwealth conceded in its motion for
reconsideration that it sought to introduce evidence of Appellant’s prior bad
acts to show Appellant’s propensity to commit crimes. When read in its
entirety, however, the motion for reconsideration plainly sought to introduce
evidence of prior bad acts to demonstrate a common plan or scheme.

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disagree.

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

         Rule 404. Character Evidence; Crimes or Other Acts

                                  *     *      *

         (b)   Crimes, Wrongs or Other Acts.

         (1) Prohibited Uses. Evidence of a crime, wrong, or other
         act is not admissible to prove a person’s character in order
         to show that on a particular occasion the person acted in
         accordance with the character.

         (2) Permitted Uses. This evidence may be admissible for
         another purpose, such as proving motive, opportunity,
         intent, preparation, plan, knowledge, identity, absence of
         mistake, or lack of accident. In a criminal case this evidence
         is admissible only if the probative value of the evidence
         outweighs its potential for unfair prejudice.

                                  *     *      *

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) (emphasis added).        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,


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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,

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

     This Court has 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), appeal denied, 633 Pa. 787, 128 A.3d 220 (2015) (quoting

Commonwealth v. G.D.M., Sr., 926 A.2d 984, 987 (Pa.Super. 2007), appeal

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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 that, in comparing methods and circumstances

of separate crimes, court must necessarily look for similarities including: (1)

manner in which crimes were committed; (2) weapons used; (3) ostensible

purpose of crime; (4) location; and (5) type of victims). “The common scheme

exception does not require that the two scenarios be identical in every

respect.” Tyson, supra at 360 n.3 (emphasis in original).

      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)). Significantly, time spent

incarcerated is excluded from the calculation of elapsed time between crimes.

See Commonwealth v. Rush, 538 Pa. 104, 646 A.2d 557 (1994) (excluding

defendant’s period of incarceration for remoteness analysis); O’Brien, supra

(holding defendant’s prior convictions from 1985 for similar sexual offenses

were not too remote in time from current January 1996 offenses where

defendant was incarcerated for prior offenses until April 1990; relevant

timeframe for remoteness analysis was less than six years).

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


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

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 that

evidence is particularly important. Weakley, supra at 1191. Likewise, the

Commonwealth’s need to present prior bad acts evidence under the common

plan exception is greater where the victim’s credibility is undermined at trial.

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

Commonwealth’s need to present prior bad acts testimony was increased after

victim’s credibility was “crippled” at trial; at that point, prior bad act testimony

became more probative than prejudicial).

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

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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).

      Instantly, the Commonwealth charged Appellant with 158 counts of

various sex offenses in relation to numerous sexual assaults Appellant

committed on Victim between January 1, 2007 and June 30, 2016, beginning

when Victim was 12 years old. These incidents took place in Victim’s home,

Appellant’s home, Appellant’s truck, a hotel room, and in the woods. Before

each incident, Appellant isolated Victim in a private area and/or lured her

under false pretenses to take a ride in his car.

      The court admitted prior bad acts evidence concerning Appellant’s prior

sexual assaults on M.V. and A.H., and the record reveals the following factual

similarities between the current offenses and those prior acts. In each case,

the victim of Appellant’s actions was an acquaintance or “friend” of Appellant.

Each victim was a young, teenage girl between the ages of 12 and 15 when

the abuse began. In each case, Appellant found ways to isolate his victim.

Appellant’s “weapon” in each case was his mind and body, which he used to

manipulate, prey on, and sexually assault the victims. The ostensible purpose


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of Appellant’s acts was sexual gratification. Thus, the nature of the victims,

the manner Appellant used to commit those acts, the “weapons” used to

commit those acts, and the ostensible purpose of the acts are nearly identical

to the present case.    See Tyson, supra; Weakley, supra.            Thus, the

Commonwealth’s proposed evidence was relevant to demonstrate a common

plan or scheme under Rule 404.       See Pa.R.E. 404(b)(2); Tyson, supra;

G.D.M., Sr., supra.

      Additionally, the prior bad acts evidence was not too remote to negate

its probative value. Appellant sexually assaulted A.H. three times between

September 1, 1999 and November 26, 1999, and sexually assaulted M.V.

twice between November 1, 1999 and January 28, 2000. Appellant’s assaults

on Victim occurred between January 1, 2007 and June 30, 2016. Importantly,

the record shows Appellant was in prison from approximately March 28, 2000

to December 4, 2006.      Appellant’s assaults against Victim began within a

month of Appellant’s release from prison.      Excluding Appellant’s period of

incarceration from the “look back” calculation, less than one year elapsed

between Appellant’s assaults on A.H. and M.V., and Appellant’s assaults on

Victim.   Any lapse in time is certainly not “excessive” under these

circumstances. See Tyson, supra; O’Brien, supra.

      Further, the probative value of the evidence of Appellant’s prior bad acts

outweighed its potential for unfair prejudice. Appellant’s prior bad acts should

not be shielded from the factfinder merely because they are harmful to


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Appellant; the question is whether evidence of his prior bad acts would be

unfairly prejudicial.    See Dillon, supra; Tyson, supra.           Evidence of

Appellant’s prior bad acts was particularly important in this case because the

Commonwealth’s evidence relied largely on Victim’s testimony, which

Appellant ferociously attacked at trial. The Commonwealth lacked forensic

evidence to corroborate Victim’s testimony. Appellant testified in his defense

and flatly denied all allegations, essentially leaving the jurors with a “he

said/she said” scenario. See Weakley, supra. As well, Appellant explored

the relationship between Victim and the Beck family at length at trial in an

effort to undermine Victim’s credibility and demonstrate her motive to

fabricate her allegations. See Luktisch, supra.

      Moreover, the court issued a cautionary instruction to the jury regarding

the limited purpose of the evidence and clarified that the jury could not treat

the prior bad acts as proof of Appellant’s bad character or criminal tendencies.

See Hairston, supra. We can presume the jurors followed the trial court’s

instructions. See id. Under these circumstances, Appellant’s second issue

merits no relief. We see no basis to call the verdict into question. Accordingly,

we affirm.




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     Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 10/25/2019




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