J-A26033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                           :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                              :        PENNSYLVANIA
                                           :
                      Appellant            :
                                           :
                                           :
               v.                          :
                                           :
                                           :   No. 773 MDA 2017
 KEVIN SCOTT BOWER, JR.                    :

                 Appeal from the Order Entered April 28, 2017
      In the Court of Common Pleas of Clinton County Criminal Division at
                        No(s): CP-18-CR-0000536-2015


BEFORE:     BOWES, J., OLSON, J., and RANSOM, J.

CONCURRING MEMORANDUM BY OLSON, J.:                      FILED APRIL 16, 2018

       I agree with the learned Majority that the trial court did not err in

denying the Commonwealth of Pennsylvania’s motion to admit evidence of

prior bad acts committed by Appellee pursuant to Pa.R.E. 404(b).           I write

separately, however, to explain the basis for my view that the trial court acted

properly and to address some of the points raised by the learned Dissent.

       I begin by emphasizing that our standard of review requires a finding

that the trial court abused its discretion in denying the Commonwealth’s

motion.    Commonwealth v. Hicks, 156 A.3d 1114, 1125 (Pa. 2017)

(“Admissibility of evidence is within the sound discretion of the trial court and

we will not disturb an evidentiary ruling absent an abuse of that discretion.”)

Most importantly, “an abuse of discretion may not be found merely because

the    appellate    court   might   have   reached   a    different   conclusion.”
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Commonwealth v. Williams, 91 A.3d 240, 248-249 (Pa. Super. 2014),

quoting Commonwealth v. Garcia, 661 A.2d 1388, 1394-1395 (Pa. Super.

1995).   Here, the trial court heard argument on this matter and made a

decision that is supported by the evidence of record.      Thus, even though

another jurist might reach a different conclusion after looking at the facts of

record, I cannot conclude that the trial court abused its discretion in denying

the Commonwealth’s motion.

      It is well established that “evidence of prior bad acts, while generally

not admissible to prove bad character or criminal propensity, is admissible

when proffered for some other relevant purpose so long as the probative value

outweighs the prejudicial effect.”     Hicks, 156 A.3d at 1125, quoting

Commonwealth v. Boczkowski, 846 A.2d 75, 88 (Pa. 2004). Our Supreme

Court “has long recognized an exception to the general inadmissibility of other

crimes evidence where there is a striking similarity – or logical connection –

between the proffered bad acts and the underlying charged crime.” Hicks,

156 A.3d at 1125. In further explaining the logical connection standard, the

Pennsylvania Supreme Court has noted, “much more is demanded than the

mere repeated commission of crimes of the same class, such as repeated

burglaries or thefts. The device used must be so unusual or distinctive as

to be like a signature.”     Id. at 1125-1126, quoting Commonwealth v.

Rush, 646 A.2d 557, 560-61 (Pa. 1994) (emphasis added). Thus, to prove a

common scheme, as the Commonwealth asserts is present in this case, the

crimes must have striking similarities that establish a logical connection

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sufficient to present a “virtual signature.” Hicks, 156 A.3d at 1128. It is not

enough for the Commonwealth to present “insignificant details of crimes of

the same class, where there is nothing distinctive to separate them from, for

example, common street crimes.” Id.

       In looking carefully at the record before us, I must conclude that,

although the crime of indecent assault to which Appellee pled guilty in 2009

shares some common details with the crimes for which Appellee was charged

in the case sub judice, these similarities are not sufficient to establish a “virtual

signature.” Instead, the events merely involve crimes of the same general

class; i.e., indecent assault. In fact, I believe that the facts surrounding the

two incidents at issue are sufficiently dissimilar so as to prevent any finding

of a “virtual signature.”

       Appellee pled guilty to the crime of indecent assault in 2009; however,

the certified record in this case does not contain a copy of the transcript of the

plea colloquy. Instead, the only statement of the facts is contained in the

criminal complaint filed on May 26, 2009.1 See Appellee’s Memorandum in

Opposition to Commonwealth’s Rule 404(b) Motion, Exhibit 1. The criminal

complaint sets forth the following relevant facts:

       [J.G.] stated that an ex-boyfriend of hers, [Appellee], had forced
       her to have sexual intercourse with him in her bedroom after she
       had allowed [Appellee] to stay at her residence after an evening
____________________________________________


1Counsel for the Commonwealth indicated during argument on its Rule 404(b)
motion that J.G., the victim in the 2009 assault, died of a drug overdose.
Therefore, she would not be available to testify at the trial in this case. N.T.,
4/24/17, at 8.

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      out at Angelo’s Bar in Lock Haven. [J.G.] stated that as they were
      lying in bed and she attempted to go to sleep, [Appellee] began
      rubbing her back, arms and legs and fondling her and telling
      [J.G.], “you know you want it.” Eventually, [Appellee] said that
      he wanted to have sex with [J.G.] and rolled her over onto her
      side, pinned her arms down and began to pull down her sweat
      pants. [J.G.] stated that [Appellee] tried for some time before
      getting her pants down as she yelled and screamed at [Appellee]
      to stop. [Appellee] kept telling [J.G.], “you know you want it”,
      and, eventually, [Appellee] was able to pull [J.G.’s] underwear off,
      at which point, while still holding [J.G.] down by holding her arms
      and hands and lying on top of her, [Appellee] was able to
      eventually penetrate [J.G.’s] vagina with his penis. [J.G.] stated
      that [Appellee] actually put one hand around [J.G.’s] neck after
      shoving her to the top of the bed with her head between the
      headboard and the mattress and held her there until [Appellee]
      was finished and ejaculated inside of [J.G.].

Id. The criminal complaint goes on to state:

      [Appellee] stated that at first the sex was consensual in [J.G.’s]
      bed; however, as he and [J.G.] were having sexual intercourse,
      [J.G.] told [Appellee] “no” and wanted [Appellee] to stop.
      [Appellee] stated that he told [J.G.] to let him finish and then he
      would leave [J.G.’s] house.

Id.   Thus, in the 2009 incident, Appellee went to a bar with J.G., an ex-

girlfriend. Later, J.G. invited Appellee to stay at her residence and allowed

him into her bed. J.G. wanted to go to sleep; however, Appellee made sexual

advances by rubbing J.G.’s back, arms and legs. Appellee then told J.G. that

he wanted to have sex at which time he rolled her over in bed, got on top of

her and pinned down her arms. J.G. screamed at Appellee and told him to

stop; however, he continued to remove her sweat pants and underpants and

then he had sexual intercourse with her. He grabbed her around the neck and

shoved her head up against the headboard until he was done. While being


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interviewed by the police, Appellee stated that the sex, at first, was

consensual; however, as they progressed, J.G. told him to stop.     Appellee

asked J.G. to let him finish and then he would leave her house.

     In the instant case, N.D. knew Appellee for approximately six months.

They did not have much contact during that six months – they “had hung out”

at a friend’s house and N.D. had given Appellee a ride in the past.     N.T.,

12/22/15, at 27. They did not date. Id. On the evening of August 9, 2015,

N.D. was back in town and, therefore, went out with some friends, including

Appellant. They started the evening at a bar called Hangar 9. Id. at 7-8. At

Hangar 9, N.D. had approximately 3 1/3 beers and a possibly a shot. Id. at

9, 28. Appellee bought a beer for her that “tasted a little funny”. Id. at 9.

N.D. consumed the funny tasting beer. When Appellee bought her another

beer, N.D. said that it did not taste right; therefore, she asked one of her

other friends to try it. Id. at 9-10. The friend agreed that it did not taste

right and the bartender poured her a new beer that tasted fine. Id. at 10.

     N.D., Appellee and the friends then went to the American Legion where

N.D. drank more. Id. at 10-11. At the American Legion, Appellee took N.D.’s

car keys and he drove N.D. from the American Legion to the Shamrock bar

where N.D. had one or two more beers. Id. at 11-13. From there, the group

went to the Valley Hotel. Id. at 13. Appellee again drove N.D. in N.D.’s car.

Id. at 14. At the Valley Hotel, N.D. drank only ½ of a beer and then stopped




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because she did not feel right. Id. at 14. N.D. testified that it was at this

time that “things kind of get fuzzy.” Id.

      When Appellee and N.D. left the Valley Hotel, N.D. thought that Appellee

was taking her to her brother’s house. Id. at 15. Instead, Appellee drove to

a park behind a Walmart. Id. at 16. Appellee crawled over on top of N.D.

who was sitting in the front passenger seat. N.D. told him this was something

that she did not want to do. Appellee asked her if she wanted him to stop and

she said “yes”; however, he continued to remove one of her pant legs and

underwear legs. Id. at 16, 19. N.D. could not recall if Appellee took his pants

off or whether he just opened them. Id. at 19. Appellee then penetrated

N.D.’s vagina with his penis and N.D. believed that Appellee ejaculated. Id.

at 19-20. N.D. stated that she was “in and out of it” at this point. Id. at 21.

The next thing that she recalls is she awoke in a bed next to Appellee at

approximately 5:30 a.m. They were in Appellee’s parents’ trailer. Id. at 21-

22. N.D. did not know how she got there. Id. at 21. N.D. got up and left at

which time she contacted a detective from the State College Police. Id. at 22.

      After she left, Appellee and N.D. communicated via text messaging.

Appellee apologized and said that it was the alcohol. Id. at 24-25. In the

text messages, N.D. told Appellee that she did not want to have sex and that

she felt violated. Id. at 25. Appellee kept apologizing. Id. at 25-26.

      When Appellee was questioned by the police, he originally told them

that N.D. had consented to the sexual activity that occurred in the front seat


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of her car.     Statement of Facts, Criminal Complaint, 11/17/15, at 2.       A

polygraph test was then administered to Appellee that indicated deception. It

was at this time that Appellee admitted that N.D. said “we shouldn’t be doing

this”. Id. Appellee said he originally lied because he was scared. Id.

       In comparing the two factual scenarios surrounding the crimes in

question, it is clear that there are some similarities – Appellee had sexual

intercourse with two women, both of whom told him to stop and did not

consent.2 The similarities, however, end there. In 2009, Appellee and an ex-

girlfriend went to Angelo’s Bar.3 J.G. then invited Appellee to spend the night

at her house and allowed him to be in the same bed with her. J.G. wanted to

go to sleep, but Appellee tried to initiate sex by rubbing J.G.’s back, arms and

legs. Appellee then got on top of J.G. and pinned down her arms. J.G. told

Appellee to stop but he continued by removing J.G.’s sweat pants and

____________________________________________


2 The Dissent “disagrees with the majority’s conclusion that the two sexual
assaults did not share relevant similarities.” Dissenting Memorandum at 11.
I agree with the learned Dissent that the two sexual encounters “share
relevant similarities”. However, in order to find a common scheme or design
for purposes of Pa.R.E. 404(b), our Supreme Court has made it clear that the
proffered prior bad acts and the underlying charged crime must be strikingly
similar so as to present a “virtual signature.” Hicks, 156 A.3d at 1125, 1128.
Sharing “relevant similarities” is not sufficient.

3 The learned Dissent states that Appellee and his ex-girlfriend, J.G. “spent an
evening out drinking alcoholic beverages at a local bar in Lock Haven.”
Dissenting Memorandum at 4. Thus, the implication is that Appellee and/or
J.G. were intoxicated. There is nothing in the 2009 criminal complaint that
indicates that Appellee and J.G. were drinking alcoholic beverages at Angelo’s
Bar or that either was impaired in any way. See Criminal Complaint, 5/26/09.



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underwear. He grabbed J.G. around the neck and shoved her head up to the

headboard. He held her there until he finished. When questioned about the

events by the police, Appellee said that, at first, the sex was consensual but

as he and J.G. were having sexual intercourse, J.G. told him to stop.

       In the instant action, Appellee and N.D. were mere acquaintances who

went barhopping with a group of friends. N.D. consumed a significant amount

of alcohol throughout the evening and was clearly intoxicated.4 By the end of

the evening, she was feeling “fuzzy” and “in and out of it”. N.D. inferred that

someone (most likely Appellee) spiked her drinks at the Hangar 9 as the beer

tasted funny. After leaving the Valley Hotel, Appellee drove N.D. to a park

behind a Walmart. He stopped the car, crawled on top of N.D., removed one


____________________________________________


4 The Dissent notes that “the Commonwealth seeks to introduce evidence of
Appellee’s 2009 conviction for indecent assault to establish that he engaged
in a course of conduct with N.D. targeted towards taking advantage of
N.D.’s weakened capacity so that he could have sexual intercourse with
her.” Dissenting Memorandum at 7 (emphasis added). The Dissent goes onto
state that “[s]imilarly, in 2009, Appellee took advantage of J.G.’s
inebriated state after a night spent drinking alcohol”.              Id. at 8
(emphasis added). Thus, the learned Dissent concludes that “the significant
similarity [between the 2009 and the 2015 incidents], in my view, is the
manner in which Appellee preyed on his victims and intentionally arranged the
circumstances so that he was in a position to take advantage of their
weakened state.” Id. Again, I note that nothing in the certified record before
us indicates that J.G. and Appellee spent the night drinking alcohol or that
J.G. was inebriated or in a “weakened state.” The only evidence is that
Appellee and J.G. spent the evening at Angelo’s Bar. Moreover, although
Appellee is alleged to have “intentionally arranged the circumstances so that
he was in a position to take advantage” of N.D., by taking her car keys, the
evidence surrounding the 2009 incident was that J.G. invited Appellee into
her home and into her bed. Nothing in the record reflects that Appellee
“intentionally arranged the circumstances” to get J.G. in bed.

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of N.D.’s pant legs and underwear legs, and penetrated her vaginally with his

penis. N.D. next recalls waking up in bed with Appellee at Appellee’s parents’

trailer. When questioned by the police about this incident, Appellee said that

the sex was consensual. It was not until Appellee failed a polygraph test that

he admitted N.D. told him to stop.

      In my view, the facts surrounding the 2009 and the 2015 assaults show

crimes of the same class; i.e., indecent assault. However, the facts do not

support a finding that the crimes were “so unusual or distinctive as to be

like a signature.” Hicks, 156 A.3d at 1125-1126 (emphasis added). One

incident involved a former girlfriend who invited Appellee to her home and into

her bed. There is no evidence that the victim was intoxicated or impaired in

any way. Appellee wanted to have sex with the victim who said “no”. He then

crawled on top of her, pinned her arms down while he removed her pants and

underwear. Appellee then grabbed the victim by her neck and shoved her

head up against the headboard while he penetrated her. When asked about

the incident, Appellee said that the sexual encounter started out as consensual

but that the victim told him to stop in the middle of the encounter. The other

incident, that occurred over six years later, involved an acquaintance of

Appellee’s who was clearly intoxicated or impaired as the evening continued.

In fact, the victim inferred that someone (most likely Appellee) spiked her

drinks. Appellee drove the victim to a park behind a Walmart at which time

he crawled on top of her, held her down by his body weight, removed one of


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her pant legs and had intercourse.5 Appellee first told the police that it was

consensual; however, when a polygraph test revealed deception, he admitted

that the victim told him “no”. The 2009 incident involved a former girlfriend

and the assault, which was much more violent, occurred in the victim’s bed.

Appellee immediately told the police that, although the sexual encounter

started out as consensual, the victim told him to stop during the sexual

encounter but he continued.             The 2015 incident involved an impaired

acquaintance who was assaulted in the front seat of a car behind a Walmart.

Appellee did not admit that the sexual encounter was non-consensual until

after he failed a lie detector test.      I do not believe that these facts compel a

finding that there are striking similarities between the two events that

establish a logical connection tantamount to a “virtual signature.”

       Moreover, I do not believe, as the learned Dissent does, that the assault

carried out against J.G. is admissible to show the absence of mistake on the

part of Appellee as to whether N.D. consented to sexual intercourse. First, as

I previously discussed, I do not find that the assaults were strikingly similar.

Secondly, although the record establishes that J.G., like N.D., did not consent

to sexual intercourse, I cannot conclude that J.G., like N.D., lacked awareness

as to what was occurring. Nothing in the 2009 criminal complaint indicates

that J.G. was impaired or unaware in any way. Accordingly, I believe that the


____________________________________________


5 Unlike the 2009 assault against J.G., there is no evidence that Appellee
pinned down N.D.’s arms or grabbed her by the neck.

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trial court did not abuse its discretion in prohibiting the Commonwealth from

introducing evidence of the 2009 crime.

      In light of our standard of review and after finding that the two incidents

are not strikingly similar, I am compelled to find that the trial court did not

abuse its discretion. Thus, I agree with the learned Majority that the trial

court should be affirmed.




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