J-A08013-18

                                   2018 PA Super 190


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    WILLIAM J. LYNN                            :   No. 1298 EDA 2017

                      Appeal from the Order April 19, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0003530-2011


BEFORE:      PANELLA, J., LAZARUS, J., and STRASSBURGER*, J.

OPINION BY PANELLA, J.                                    FILED JUNE 28, 2018

       Rule 404 of the Pennsylvania Rules of Evidence prohibits the use of “a

crime, wrong, or other act … to prove a person’s character in order to show

that on a particular occasion the person acted in accordance with the

character.” Pa.R.E. 404(b)(1). After finding the admission of twenty-one

instances of “other-acts” evidence unduly prejudiced the jury trial of Appellee,

William J. Lynn, a panel of this Court granted Lynn a new trial.

       Prior to retrial, the Commonwealth attempted to secure the introduction

of nine of these instances of other-acts evidence, for such evidence may be

admissible when relevant to another purpose, such as “proving motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of



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*   Retired Senior Judge assigned to the Superior Court.
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mistake, or lack of accident.” Pa.R.E. 404(b)(2). The trial court limited the

Commonwealth to just three.

       The Commonwealth appeals,1 alleging the introduction of additional

other-acts evidence is necessary to prove its case. After concluding that the

trial court’s decision to limit the introduction of other-acts evidence was within

its discretionary powers, we affirm.

       Because our Supreme Court has provided a detailed description of the

facts underlying this matter in its prior opinion, Commonwealth v. Lynn,

114 A.3d 796, 798-808 (Pa. 2015) (“Lynn II”), we need not recite the

entirety of this case’s history here. See also Commonwealth v. Lynn, 83

A.3d 434, 437-445 (Pa. Super. 2013) (“Lynn I”), rev’d Lynn II (providing

summary of facts and procedural history).

       Relevant to the current appeal, Lynn was appointed Associate Vicar in

the Office of the Vicar for the Administration in the Archdiocese of Philadelphia

in January 1991. As part of his duties as Associate Vicar, Lynn assisted

Monsignor James Malloy and served as the Secretary for Clergy for the

Archdiocese of Philadelphia from 1992 until 2004. As part of his duties as

secretary, Lynn was responsible for receiving and investigating allegations of

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1 The Commonwealth has certified that the trial court’s order substantially
handicaps the prosecution, and that the appeal is not intended for delay
purposes. Thus, we may review it. See Pa.R.A.P. 311(d); see also
Commonwealth v. Gordon, 673 A.2d 866, 868 (Pa. 1996) (holding that the
denial of a motion in limine seeking to admit evidence falls within the rule that
the Commonwealth may appeal pretrial orders which terminate or
substantially handicap the prosecution).

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sexual abuse by priests within the Archdiocese, as well as suggesting

placements for, and supervising, priests previously accused of abuse.

       In 2011, following a grand jury investigation into claims of sexual abuse

by priests and concealment of this abuse by the Archdiocese, Lynn was

arrested and charged with two counts of endangering the welfare of children

(“EWOC”), 18 Pa.C.S.A. § 4304, and two counts of conspiracy to commit

EWOC, 18 Pa.C.S.A. § 903. Lynn’s charges arose from allegations that he, in

his capacity as Secretary for Clergy, negligently supervised two priests,

Reverend Edward V. Avery and Reverend James Brennan. 2 Due to previous

complaints, Lynn knew that both Avery and Brennan had been accused of

sexually abusing juvenile parishioners. Despite this knowledge, in 1993, Lynn

recommended Avery live in the rectory at nearby St. Jerome’s Church—a

church with a grade school attached. Several years after Avery was placed at

St. Jerome’s rectory, D.G., a student at St. Jerome’s grade school, alleged he

had been sexually abused by Avery.3



____________________________________________


2 The Commonwealth charged one count each of EWOC and conspiracy to
commit EWOC in relation to Lynn’s supervision of Avery and Brennan,
respectively.

3 In his brief, counsel for Lynn do not refer to D.G. by his initials, but rather
by his full name. D.G. was a minor at the time of the alleged sexual abuse.
The use of his full name is prohibited by statute. See 42 Pa.C.S.A. § 5988(a)
Release of name prohibited. We therefore order counsel to file within seven
days of this decision a substituted brief redacting D.G.’s full name. Our Deputy
Prothonotary has already sealed Lynn’s filed brief.



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       Lynn proceeded to trial on March 26, 2012.4 As part of its case-in-chief,

the Commonwealth introduced other-acts evidence of the Archdiocese’s

handling of abuse allegations raised against twenty-one other priests.5 This

evidence consumed twenty-five of the thirty-two days the Commonwealth

devoted to its case-in-chief. After two months of testimony, the jury convicted

Lynn of one count of EWOC, relating to his supervision of Avery.6 On July 24,

2012, the trial court sentenced Lynn to a term of three to six years’

imprisonment.

____________________________________________


4 Initially, Lynn was scheduled to be tried along with co-defendants Avery and
Brennan. However, prior to the commencement of trial, Avery pleaded guilty
to one count of involuntary deviate sexual intercourse, 18 Pa.C.S.A. § 3123,
and one count of conspiracy to commit EWOC. Brennan remained Lynn’s co-
defendant until the conclusion of the trial.

5 In our review of the record, as well as previous opinions and memoranda
written in his case, we note that the exact number of priests accused of sexual
abuse and admitted as other-acts evidence varies between twenty and
twenty-one. Compare Lynn I, 83 A.3d at 446 (referencing twenty-one other
priests), and Commonwealth v. Lynn, No. 2171 EDA 2012, at 13, 15, 2015
WL 9320082, at *6 (Pa. Super., filed 12/22/15) (unpublished memorandum)
(“Lynn III”) (discussing allegations leveled against twenty-one other
priests), with Lynn II, 114 A.3d at 809 (stating trial court permitted
Commonwealth to introduce evidence pertaining to twenty other priests).
However, the trial court’s initial order permitting the introduction of other-acts
evidence clearly reveals it permitted the Commonwealth to introduce evidence
relating to twenty-one other priests against Lynn. See Trial Court Order,
2/6/12. As such, we will utilize this number in our opinion.

6Following the conclusion of the Commonwealth’s case, the trial court granted
Lynn’s motion for judgment of acquittal for the conspiracy count related to his
supervision of Brennan. Thereafter, in reaching its verdict, the jury acquitted
Lynn of the conspiracy count related to his supervision of Avery and the EWOC
count related to his supervision of Brennan. The jury failed to reach a verdict
on any of the charges leveled against Brennan.

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         Following a series of appeals, a panel of this Court vacated the judgment

of sentence and granted Lynn a new trial upon concluding the trial court

abused its discretion by admitting a “high volume of unfairly prejudicial other-

acts evidence.” Lynn III, No. 2171 EDA 2012, at 1, 2015 WL 9320082, at

*1. Specifically, the Court found that

         the probative value of the individual portions that made up the
         large quantity of other-acts evidence in this case differed greatly.
         A limited portion of that evidence was substantially relevant to, or
         probative of, permitted uses under Rule 404(b)(2), but far more
         was only marginally relevant for such purposes. The potential for
         this evidence to unfairly prejudice [Lynn] was high, both because
         it involved the sexually abusive acts of numerous priests
         committed against children over several decades, and because of
         the high volume of the evidence admitted. Therefore, we conclude
         that the probative value of that evidence, in toto, did not outweigh
         its potential for unfair prejudice….

Id., at 42-43, 2015 WL 9320082, at *20.

         Prior to retrial, Lynn filed an omnibus pretrial motion seeking, in part,

to exclude all of the other-acts evidence the Commonwealth utilized in the

first trial. Lynn maintained that evidence of sexual abuse by Archdiocesan

priests, other than Avery, was neither probative nor relevant to proving Lynn’s

EWOC charge. As Lynn believed the evidence was irrelevant, he claimed that

admission of this evidence would, again, unduly prejudice him if presented at

trial.




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       In response, the Commonwealth filed a motion in limine seeking the

admission of nine7 of the twenty-one instances of other-acts evidence

introduced at Lynn’s first trial. Specifically, the Commonwealth sought the

admission of evidence related to accusations levied against nine priests within

the Archdiocese, claiming the admission of all nine of the instances was

necessary to demonstrate the general scheme Lynn created in which he

concealed evidence of sexually abusive priests to protect the Archdiocese.

       Following a hearing on the matter, the trial court determined that, while

the evidence of sexual abuse by these priests was relevant under Rule 404(b),

the prejudicial effect of the admission of all nine proffered instances of other-

acts evidence on the jury would substantially outweigh its probative value.

However, the trial court found the appropriate balance between the probative

value of this evidence and its prejudicial effect could be found by allowing the

Commonwealth to present other-acts evidence related to sexual abuse claims

against Father Robert Brennan, Father Cudemo, and Father Bolesta in its case-

in-chief, while excluding other-acts evidence relating to claims against the

others. This timely appeal follows.

____________________________________________


7In its original motion, the Commonwealth sought to introduce twelve of the
original twenty-one instances of other-acts evidence. See Commonwealth’s
Motion in Limine to Admit Evidence of Other Bad Acts Pursuant to Pa.R.E.
404(b), 12/14/16. However, at the hearing on the matter, the Commonwealth
withdrew its request to admit evidence relating to three other priests. See
N.T., Hearing, 3/28/17, at 6, 9, 18. The Commonwealth’s decision to pursue
only nine instances of other-acts evidence is reflected in the trial court’s order
granting in part, and denying in part, the Commonwealth’s motion. See Order,
4/19/17.

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      On appeal, the Commonwealth challenges the trial court’s decision to

limit the introduction of other-acts evidence to the three instances of sexual

abuse claims outlined above. Admissibility of evidence is within the sound

discretion of the trial court and will not be disturbed absent an abuse of

discretion. See Commonwealth v. Arrington, 86 A.3d 831, 842 (Pa. 2014).

“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. Sitler, 144 A.3d

156, 163 (Pa. Super. 2016) (en banc) (citation omitted).

      Relevance    is   the   threshold    for   admissibility   of   evidence.   See

Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008). “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 a material fact.” Commonwealth v. Drumheller,

808 A.2d 893, 904 (Pa. 2002) (citation omitted). “All relevant evidence is

admissible, except as otherwise provided by law.” Pa.R.E. 402.

      One such law that limits the admissibility of relevant evidence is Rule

404. Under Rule 404, evidence of “a crime, wrong, or other act” is inadmissible

“to prove a person’s character in order to show that on a particular occasion

the person acted in accordance with the character.” Pa.R.E. 404(b)(1).

However, this evidence may be admissible when relevant for another purpose,

such as “proving motive, opportunity, intent, preparation, plan, knowledge,

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identity, absence of mistake, or lack of accident.” Pa.R.E. 404(b)(2). “In a

criminal case this evidence is admissible only if the probative value of the

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

       Here, the trial court did not analyze each of the Commonwealth’s nine

proffered instances of other-acts evidence to determine if the evidence was

relevant for another purpose under Rule 404(b)(2). Instead, the trial court

presumed that prior rulings had adjudicated all nine of these instances of

other-acts evidence relevant to proving one of the categories set forth in Rule

404(b)(2). See Trial Court Opinion, 8/4/17, at 4 (citing Lynn III for the

notion that “merely crossing the threshold of demonstrating that other-acts

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

demonstrate admissibility.”)8 The Commonwealth does not challenge the trial

court’s presumption. Indeed, the crux of the Commonwealth’s appeal is its

contention that the trial court abused its discretion in conducting this

balancing test and excluding six of the nine proffered instances of other-acts

____________________________________________


8 While the trial court appears to believe that Lynn III ruled each of the
twenty-one acts offered by the Commonwealth (and subsequently, the nine
acts the Commonwealth derived from the original twenty-one acts) at least
minimally probative of a permissible Rule 404(b)(2) category, we note that
this Court in Lynn III did not analyze these acts to determine their relevance
to the categories. See Lynn III, No. 2171 EDA 2012, at 15, 2015 WL
9320082, at *8 (“For the purposes of this analysis, we assume that each of
the 21 instances of other-acts evidence served at least some minimal
probative value with regard to the permissible categories set forth in Rule
404(b)(2)….”) (emphasis added).




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evidence because the evidence excluded is “highly probative and not

improperly prejudicial.” Commonwealth’s Brief, at 13. Therefore, we shall

confine our review to the balancing test the trial court performed, between

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

evidence to unfairly prejudice Lynn at the new trial.9

       The prior panel of this Court in Lynn III aptly summarized the balancing

test the trial court must employ to determine if the probative value of Rule

404(b) evidence outweighs its prejudicial nature. The panel explained that

       [m]erely crossing the threshold of demonstrating that other-acts
       evidence was probative of some Rule 404(b)(2) category does
       not, by itself, demonstrate admissibility. “In a criminal case this
       evidence is admissible only if the probative value of the evidence
       outweighs its potential for unfair prejudice.” Pa.R.E. 404(b)(2)
       (emphasis added). In this context, “‘[u]nfair prejudice’ means a
       tendency to suggest decision on an improper basis or to divert the
       jury’s attention away from its duty of weighing the evidence
       impartially.” Commonwealth v. Dillon, 925 A.2d 131, 141 (Pa.
       2007).

             Often cited in conjunction with this balancing test, as
       invoked by the trial court in this case, is our Supreme Court’s

____________________________________________


9 Similar to the ruling made by the trial court originally in relation to the other-
acts evidence, the trial court here ruled on the other-acts evidence by
balancing its collective probative value against its collective prejudice. See
Trial Court Opinion, 8/4/17, at 3-4 (“On balance, the nine . . . instances,
cumulatively would be excessive[,] would have minimal relevance to Lynn’s
conduct, and would unduly prejudice [Lynn]”). Because the Commonwealth
does not specifically claim that the trial court erred by treating this evidence
collectively, and fails to adequately justify the admission of the evidence on a
case-by-case basis, once again, as in Lynn III, No. 2171 EDA 2012, at 16,
2015 WL 9320082, at *8, “we will review the trial court’s admission of the
totality of this evidence in kind.”


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      elucidation on the topic of prejudice in Commonwealth v. Lark,
      543 A.2d 491 (Pa. 1988):

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

      Id. at 501.

             Naturally, as the Lark Court suggests, relevant evidence of
      [Lynn’s] culpability for the charged offenses should not be
      excluded merely because it tends to demonstrate his guilt.
      However, our Supreme Court has also advised that, “to be
      admissible under the [motive] exception, evidence of a distinct
      crime, even if relevant to motive, ‘must give sufficient ground to
      believe that the crime currently being considered grew out of or
      was in any way caused by the prior set of facts and
      circumstances.’” Commonwealth v. Roman, 351 A.2d 214, 218-
      219 (Pa. 1976) (emphasis added). Thus, we must not forget that
      the rule being applied is that other-acts evidence is by default
      inadmissible unless a Rule 404(b)(2) category or similar
      justification applies, and the probative value of that evidence
      outweighs its potential for prejudice. The burden is on the party
      seeking admission to demonstrate the applicability of the
      exception to the general rule; in this case, that burden fell on the
      Commonwealth. There is no presumption of admissibility of other-
      acts evidence merely because it is somewhat relevant for a non-
      propensity purpose.

Lynn III, No. 2171 EDA 2012, at 29-30, 2015 WL 9320082, at *14 (emphasis

in original).


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       Turning to the Commonwealth’s assertion that the trial court erred in

failing to find the excluded evidence “highly probative,” the Commonwealth

contends that the additional evidence is “highly relevant” to establishing the

important aspects of the supervisory plan Lynn devised and executed. The

Commonwealth attempts to bolster this argument by asserting that, without

the additional evidence to firmly establish the existence of a criminal element,

it would be unable to establish that Lynn knowingly violated a duty of care,

and therefore unable to establish all of the elements in EWOC.10 And the

Commonwealth argues that the exclusion of this evidence not only undermines

its argument that Lynn operated pursuant to a criminal plan, but improperly

allows Lynn to argue that his actions were the result of a mistake.

       The trial court determined that the other-acts evidence pertaining to

Bolesta, Brennan, and Cudemo would “adequately cover the area the

Commonwealth sought to establish[.]” Trial Court Opinion, 8/4/17, at 5. And

the trial court found that “the Commonwealth’s goal to show knowledge, and




____________________________________________


10For the purposes of Lynn’s case, the Commonwealth is operating under the
EWOC statute, effective from 1995 through 2004, which defined the offense
as follows: “A parent, guardian or other person supervising the welfare of a
child under 18 years of age commits a misdemeanor of the second degree if
he knowingly endangers the welfare of the child by violating a duty of care,
protection or support.” 18 Pa.C.S.A. § 4304(a). Our Supreme Court previously
found that Lynn, in his position as Secretary for Clergy, owed the children a
duty to protect them from sexual predator priests. See Lynn II, 114 A.2d at
819.

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refute an isolated mistake on the part of Lynn could be established with the

three [instances of other-acts evidence] that were permitted.” Id., at 4.

      The Commonwealth argues that the trial court’s decision to limit its

other-acts evidence to three instances inadequately reveals the details of the

criminal plan Lynn devised. However, the Commonwealth completely fails to

demonstrate how its burden to prove the details of Lynn’s alleged criminal

plan can only be satisfied by the inclusion of the six additional instances of

other-acts evidence. In fact, in its brief, the Commonwealth admits that the

same pattern or criminal scheme it finds imperative in the six excluded

instances “can be perceived in the three cases the lower court did decide to

allow[.]” Commonwealth’s Brief, at 9 n.3. Given this, we cannot fault the trial

court for concluding that the excluded evidence is cumulative and, thus, of

dubious additional probative value.

      Additionally, the Commonwealth contends the exclusion of these six acts

would prevent it from proving the “knowledge” element of EWOC. In support,

the Commonwealth relies heavily upon our decision in Hutchinson ex. rel

Hutchinson v. Luddy, 763 A.2d 826 (Pa. Super. 2000), vacated on other

grounds Hutchinson ex. rel. Hutchinson v. Luddy, 870 A.2d 766 (Pa.

2005).

      In Hutchinson, a plaintiff who, as a child, was sexually abused by a

priest, brought a civil action against both the priest and parties involved in the

church’s hierarchy (“Diocesan Parties”). See 763 A.2d at 829. Hutchinson


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claimed that the Diocesan Parties negligently supervised the priest and in

response the trial court ruled that Hutchinson could introduce eleven instances

of how the Diocesan Parties handled sexually abusive priests. See id., at 829-

830. Following an appeal by the Diocesan Parties, a panel of this Court found

that the trial court did not abuse its discretion in admitting this evidence

because it was relevant to establishing that the Diocesan Parties had dealt

with these issues before and therefore should have been aware of the priest’s

behavior in this instance. See id., at 843, 845.

      The Commonwealth invites us to read Hutchinson to require the

admission of extensive evidence of other bad acts in order to prove

knowledge, and to prevent claims that Lynn had no knowledge of Avery’s

danger to children. The Commonwealth’s interpretation of Hutchinson is

misguided. We did not hold in Hutchinson that extensive evidence was

required to prove knowledge—only that the evidence was relevant to proving

knowledge. See id., at 845. We did not hold that the admission of extensive

evidence of other bad acts is required to defeat a defense of lack of knowledge.

Our ruling in Hutchinson focused on the conclusion that the trial court did

not abuse its broad discretion in determining that the eleven instances were

highly relevant, and that the probative value of the evidence outweighed any

prejudicial effect.

      In this case, given our standard of review, we cannot find that the trial

court abused its discretion in limiting the evidence of other acts simply


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because the trial court in Hutchinson weighed the evidence differently. The

trial court here found that the six excluded instances of other-acts evidence

were only minimally relevant as proof of Lynn’s conduct. The record simply

does not support a finding that this was an abuse of discretion.

       Moving to the next portion of the balancing test, the Commonwealth

argues “the excluded evidence carries virtually no risk of improper prejudice.”

Commonwealth’s Brief, at 20-23. Specifically, the Commonwealth notes that

improper prejudice is not plausible in this case because the other acts the

Commonwealth is seeking to admit do not consist of crimes previously

committed by Lynn, but rather crimes committed by Lynn’s supervisees.

       This argument is specious. Indeed, the previous panel, in examining the

exact same evidence, found that “the potential for unfair prejudice was great

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

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

at hand.” Lynn III, No. 2171 EDA 2012, at 32, 2015 WL 9320082, at *15.

Though the Commonwealth now seeks to admit fewer instances of other-acts

evidence, we cannot ignore our prior determination that the prejudicial nature

of the proffered other-acts evidence is great and readily apparent.11




____________________________________________


11 We direct the interested reader to Lynn III, No. 2171 EDA 2012, at 28-36,
2015 WL 9320082, at *14-*16, for a complete discussion of the potential
prejudicial nature of the other-act evidence the Commonwealth seeks to
introduce.

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      Because we find no error in the trial court’s determination that the six

excluded instances of other-acts evidence were marginally probative but

highly prejudicial, we cannot find that the trial court abused its discretion by

excluding these instances pursuant to the balancing test.

      Order affirmed. Counsel for Lynn directed to file substituted brief.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/28/18




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