J-S34020-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

JERRY ALLEN REED

                        Appellant                  No. 2023 MDA 2014


        Appeal from the Judgment of Sentence September 5, 2014
            In the Court of Common Pleas of Lancaster County
           Criminal Division at No(s): CP-36-CR-0000323-2014
                         CP-36-CR-0005013-2012


BEFORE: BOWES, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                       FILED SEPTEMBER 09, 2015

     Jerry Allen Reed appeals the judgment of sentence entered September

5, 2014, in the Lancaster County Court of Common Pleas, made final by the

denial of post-sentence motions on October 1, 2014. Reed was charged with

multiple offenses in two separate informations for the sexual assault of his

minor daughter, A.G., which are as follows: (1) the charges at Docket No.

323-2014, arose from sexual acts that occurred in 2007, when A.G. was 14

years old; and (2) the charges at Docket No. 5013-2012, arose from sexual

acts that occurred in 2010, when A.G. was 17 years old. After a jury found

Reed guilty of all charges, the trial court imposed an aggregate sentence of

21 to 50 years’ imprisonment. On appeal, Reed challenges the trial court’s

ruling permitting the Commonwealth to introduce evidence of prior bad acts,
J-S34020-15



and the court’s denial of his motion to sever the cases for trial. Based on

the following, we affirm.

        The facts underlying this appeal are as follows. Reed is the uncle of

K.G., the mother of A.G., who is the victim in the present case. K.G. claims

that Reed raped her twice, the first time in 1980, when she was 16 years

old, and the second time in 1992, when she was 28 years old.          The first

incident occurred at her parents’ home in Reading, Pennsylvania, when she

was home alone.          K.G. contends Reed entered the house without her

knowledge or consent, and “engaged in sexual intercourse with [her] against

her will.”   Trial Court Opinion, 10/31/2014, at 15.    Although she told her

mother about the incident, no criminal investigation was conducted.           The

second incident occurred at Reed’s home in Lancaster, Pennsylvania. K.G.

claims she met with Reed to discuss her father (Reed’s brother), but he

“grabbed hold of her and forcibly engaged in sexual intercourse with her.”

Id. at 15. Again, K.G. did not report the incident to police. However, as a

result of the second rape, she became pregnant with A.G. A.G. is, therefore,

both Reed’s daughter and great-niece.1

        The charges herein arose from Reed’s sexual abuse of A.G. in July of

2007 and November of 2010. The charges at Docket No. 323-2014, resulted

from the following incident:

____________________________________________


1
    Reed does not dispute he is the father of A.G. N.T., 4/29/2014, at 345.




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J-S34020-15


      [O]n July 1, 2007, at 10:30 p.m., [Reed] told A.G., then 14
      years old, to go to his garage located to the rear of the home,
      and she complied.4 Once inside the garage, [Reed] exposed his
      penis, told her to grasp it and she did. [Reed] then told A.G. to
      perform oral sex on him but she refused. A.G.’s two brothers
      and a friend observed what was going on in the garage through
      a peephole and banged on the door until [Reed] allowed A.G. to
      exit the garage. A.G. allegedly did not know [Reed] was her
      father at that time, although [Reed] knew A.G. was his
      daughter. No criminal charges were filed against [Reed] at that
      time.

      __________
      4
         The evidence suggests that the victim, A.G., had some mental
      deficiencies. [The parties stipulated at trial that A.G. “has an IQ
      of 69 and functions at a range of mild mental retardation.” N.T.,
      4/28/2014, at 73.].

Trial Court Opinion, 10/31/2014, at 2 (record citations omitted). Although

A.G., accompanied by her mother, K.G., reported the incident to police, the

investigation was initially closed after A.G. repeatedly failed to appear for a

forensic interview. Id. at 11.

      The charges at Docket No. 5013-2012, resulted from an assault that

occurred   in   November   of    2010.   The   trial   court   summarized   the

circumstances regarding this incident as follows:

      In November 2010, K.G. and her family were living in a motel in
      Lancaster. A.G. had gone to Florida to visit her sister. At the
      time, she had her 18-month-old daughter with her. When she
      returned from Florida in November of 2010, [Reed] picked her
      and her daughter up at the Philadelphia Airport and took them
      back to his apartment [in] Lancaster City. [A.G.] and her
      daughter spent the next two weeks at [Reed’s] home during
      which time he forcibly engaged in sexual intercourse with A.G.
      six or seven times, at least once while her young child was in the
      room. [Reed] held A.G. down, and she could not move or get
      up, although she screamed.        Fear kept [A.G.] from telling
      anyone about what was going on. A.G. eventually called her

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J-S34020-15


        mother who took A.G. and her child to live with her [when she
        moved from the hotel into a house].

               A.G. discovered she was pregnant in December 2010.
        After contacting the police, A.G. underwent a forensic
        examination at Lancaster County Children’s Alliance on
        December 14, 2010, where she revealed the sexual abuse
        perpetrated upon her by [Reed] between November 15, 2010,
        and November 29, 2010. However, A.G. was initially reluctant
        to press charges against [Reed]. With the birth of her second
        child, C.G., on August 2, 2011, and a confirmed paternity test
        showing [Reed], her father/great-uncle as the father of that
        child,13 A.G. decided she “had to get something done about it.”

        __________
        13
           Forensic scientist and paternal DNA analyst Season Elizabeth
        Seferyn testified that she tested the buccal swab samples from
        [Reed], the victim, A.G., the victim’s mother K.G., and the
        victim’s daughter, C.G. Ms. Seferyn concluded that [Reed] is the
        biological father of A.G. and C.G. … The relative probability of
        paternity for each is 99.9999%.

Id. at 11-12 (record citations and some footnotes omitted).

        On August 21, 2012, Reed was charged, at Docket No. 5013-2012,

with rape, incest, sexual assault, unlawful contact with minor, and corruption

of minors2 for the incident that occurred in November of 2010. Thereafter,

on December 18, 2013, Reed was charged, at Docket No. 323-2014, with

attempted involuntary deviate sexual intercourse, unlawful contact with a

minor, indecent assault, corruption of minors and indecent exposure3 for the


____________________________________________


2
    18 Pa.C.S. §§ 3121(a)(1), 4302, 3124.1, 6318, and 6301, respectively.
3
  18 Pa.C.S. §§ 901 and 3123, 6318, 3126(a)(8), 6301, and 3127,
respectively.




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incident that occurred in July of 2007.            On February 12, 2014, the

Commonwealth filed notice of its intent to consolidate the cases for trial.

       Relevant to this appeal, in October 2013 and January 2014, the

Commonwealth filed three separate notices of its intent to introduce

evidence of Reed’s prior bad acts. Specifically, the Commonwealth intended

to present evidence of (1) Reed’s alleged sexual assault of K.G. in 1980 and

1992, (2) Reed’s alleged sexual assault of another niece, D.B., when she

was eight to 14 years old,4 and (3) Reed’s alleged sexual assault of the

victim, A.G., when she was five years old.5                See Commonwealth’s

Memorandum of Law in Support of its Rule 404(b) Motions, 4/7/2014, at 2-

4. In response, on February 20, 2014, Reed filed a motion in limine seeking

to exclude this evidence.        Additionally, Reed filed another pre-trial motion

that same day seeking both suppression of statements he made to police,

and severance of the cases for trial. Following a March 28, 2014, hearing on

all of the pre-trial motions, the court denied Reed’s request to suppress

evidence and sever the cases for trial. However, the trial court directed the

____________________________________________


4
  The assault of D.B. led to criminal charges against Reed. However, after a
trial resulted in a hung jury, Reed was not re-tried. See Commonwealth’s
Notice of Intent to Introduce Evidence of Prior Bad Acts, 1/14/2014, at ¶ 4.
5
  The Commonwealth averred that when              A.G. was five years old, she
reported to her grandmother that Reed had         “touched her ‘coochie’ (vaginal
area).” Trial Court Opinion, 10/31/2014, at       17. Although the incident was
reported to the Children and Youth Agency,        no criminal charges were filed.
Id.



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J-S34020-15



parties to submit briefs on the issue of the admissibility of prior bad acts

evidence. Thereafter, on April 17, 2014, the court entered an order denying

in part and granting in part Reed’s motion in limine. Specifically, the court

ruled that evidence of Reed’s prior sexual assault of K.G. and A.G. would be

admissible in the Commonwealth’s case-in-chief.      However, with regard to

Reed’s prior assault of D.B., the court ruled that the evidence would not be

admissible in the case-in-chief, but reserved judgment on whether the

evidence might be admissible in rebuttal. See Order, 4/17/2014.

       The cases proceeded to a jury trial in April of 2014. On April 29, 2014,

the jury returned a verdict of guilty on all charges.         The trial court,

thereafter, directed that Reed undergo an assessment by the Sexual

Offenders Assessment Board (“SOAB”) to determine whether he met the

criteria for classification as a sexually violent predator (“SVP”) under the

Sexual Offenders Registration and Notification Act (“SORNA”), 42 Pa.C.S. §§

9799.10-9799.14.

       On September 5, 2014, the trial court held a combined SVP/sentencing

hearing. After considering testimony by the SOAB evaluator, the court first

determined that Reed met the criteria for classification as a sexually violent

predator. Next, the court proceeded to sentence Reed to an aggregate term

of 21 to 50 years’ imprisonment.6 Reed filed a timely post-sentence motion,

____________________________________________


6
 At Docket No. 5013-2012, the court imposed a sentence of eight and one-
half to 20 years’ imprisonment for the charge of rape and a consecutive term
(Footnote Continued Next Page)


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J-S34020-15



in which he challenged both the weight and sufficiency of the evidence, as

well as the court’s denial of his pre-trial motions, and requested modification

of his sentence. By order entered October 31, 2014, the court denied Reed’s

post-sentence motion, and this timely appeal followed.7

      Reed’s first issue on appeal challenges the trial court’s denial of his

motion in limine to preclude evidence of his purported prior assault of K.G.8


                       _______________________
(Footnote Continued)

of five to 10 years’ imprisonment for the charge of incest. Additionally, the
court imposed concurrent sentences of eight and one-half to 20 years for
unlawful contact with minors and one and one-half to five years for
corruption of minors. The sexual assault charge merged for sentencing
purposes.

      At Docket No. 323-2014, the court imposed concurrent sentences of
seven and one-half to 20 years’ imprisonment for attempted IDSI, seven
and one-half to 20 years’ imprisonment for unlawful contact with minors,
one to two years for indecent assault, one and one-half to five years for
corruption of minors, and one to five years for indecent exposure. The court
further directed that the charges at each docket run consecutive to one
another.
7
  On November 24, 2014, the trial court ordered Reed to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Reed complied with the court’s directive and filed a concise statement on
December 15, 2014. Thereafter, the court entered a Rule 1925(a) opinion
relying on its October 31, 2014, opinion that denied Reed’s post-sentence
motions.
8
   Although Reed also challenges the court’s ruling permitting evidence
regarding the alleged sexual assault on A.G. when she was five years old, as
the Commonwealth notes in its brief, no evidence or testimony regarding
that incident was presented at trial. Accordingly, Reed cannot demonstrate
that he was harmed by the court’s pretrial ruling, and we need not address
this claim on appeal.




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      Our review of an evidentiary claim is well-established:

      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.”

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

(internal citations omitted).

      Pennsylvania Rule     of Evidence     404(b) prohibits evidence     of a

defendant’s prior bad acts “to prove a person’s character” or demonstrate

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

character.” Pa.R.E. 404(b)(1). Nevertheless, the Rule further provides that

prior bad acts 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)(2).

      Where, as here, the prior bad acts evidence is proffered under the

common plan or scheme exception, we must bear in mind the following:



         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


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J-S34020-15


       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. G.D.M., Sr., 926 A.2d 984, 987 (Pa. Super.
     2007), appeal denied, 596 Pa. 715, 944 A.2d 756 (2008)
     (quoting Commonwealth v. Smith, 431 Pa.Super. 91, 635
     A.2d 1086, 1089 (Pa. Super. 1993)).

     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.” Commonwealth v. Aikens, 990 A.2d
     1181, 1185 (Pa. Super. 2010), appeal denied, 607 Pa. 694, 4
     A.3d 157 (2010) (holding evidence of defendant’s prior sexual
     assault was admissible under common scheme exception despite
     nearly ten-year gap between periods of abuse, where victims
     were of similar age and both were daughters of defendant;
     defendant initiated contact with each victim during overnight
     visit in his apartment; defendant began sexual abuse by showing
     victims pornographic movies; and assaults occurred in bed at
     night). See also Commonwealth v. Luktisch, 451 Pa.Super.
     500, 680 A.2d 877 (Pa. Super. 1996) (holding common scheme
     exception justified admission of testimony regarding defendant’s
     previous sexual assaults despite six-year lapse between periods
     of abuse, where three victims were nearly same age, victims

                                   -9-
J-S34020-15


      were either daughter or step-daughter of defendant and lived
      with him when acts occurred; and pattern of molestation—from
      improper touching to oral sex to sexual intercourse—was highly
      similar with respect to two victims).

Com. v. Tyson, ___ A.3d ___, ___, 2015 PA Super 138, *3-4 (Pa. Super.

2015).

      Here, Reed contends the trial court erred when it determined the

evidence was admissible pursuant to the common plan, scheme or design

exception. Specifically, he asserts the prior bad acts do not share a “unique

similarity” in facts with the present charges, and, indeed, “[t]he only

constant was the nature of the familial relationship [Reed] shared with A.G.

and K.G.” Reed’s Brief at 12. Moreover, Reed states the “locations, dates,

and circumstances of the acts as to K.G. and A.G. were markedly different.”

Id. at 13.    For example, K.G. testified Reed first assaulted her at her

parents’ home when she was 16 years old, and, later, at his home when she

was 28 years old.   Conversely, the first alleged sexual assault of A.G., an

attempted involuntary deviate sexual intercourse, occurred in Reed’s garage,

when A.G. was 14 years old.     Moreover, the second incident, a purported

rape, occurred at Reed’s home when A.G., then 17 years old, was staying

with him. Accordingly, Reed contends the acts were not sufficiently similar

to demonstrate a common plan, scheme or design.           Additionally, Reed

argues any probative value assigned to the testimony regarding his prior bad

acts was far outweighed by the danger of unfair prejudice.        Id. at 16.

Specifically, he contends the remoteness in time of the prior incidents is

“substantial.” Id. at 17.

                                   - 10 -
J-S34020-15



      The trial court concluded, however, that evidence of Reed’s prior

sexual assault of K.G., the victim’s mother, was admissible to demonstrate a

common plan, scheme or design.      In particular, the court emphasized the

following:

      [T]here were strong similarities between [Reed’s] conduct on
      A.G. and his prior conduct on A.G.’s mother, K.G. K.G., like
      A.G,. was a minor female at the time of the first assault. K.G.,
      like A.G., was a niece of [Reed’s]. [Reed] used the family
      relationship and opportunity to be alone with K.G. to force her to
      engage in incestuous sexual intercourse with him, just as he
      used the same factors to isolate and assault A.G. Both K.G. and
      A.G. indicate[d] they were held down by [Reed] during the
      assaults.   K.G., like A.G., got pregnant as a result of the
      assaults.

Trial Court Opinion, 10/31/2014, at 20.

      We find this Court’s decision in Commonwealth v. Aikens, 990 A.2d

1181 (Pa. Super. 2010), appeal denied, 4 A.3d 157 (Pa. 2010), instructive.

In that case, the appellant was convicted of, inter alia, indecent assault for

the sexual abuse of his 14-year-old daughter, T.S. Id. at 1182. At trial, the

Commonwealth presented the testimony of V.B., the appellant’s then 32-

year old daughter by another woman, who claimed appellant had sexually

abused her when she was 15 years old. On appeal, the appellant challenged

the court’s admission of this evidence under the common plan, scheme or

design exception. In concluding the ruling was not an abuse of discretion, a

panel of this Court stated:

      In both cases, the victims were of like ages: T.S. was fourteen
      years old, and V.B. was fifteen years old. Both victims were
      Appellant’s biological daughters. Appellant initiated the contact


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J-S34020-15


     during an overnight visit in his apartment. He began the sexual
     abuse by showing the girls pornographic movies. The assaults
     occurred in bed at night.       While Appellant raped V.B. and
     indecently assaulted T.S., T.S. stopped Appellant from disrobing
     her and committing the more serious sexual assault.            In
     addition, Appellant mimicked the grinding movements of sexual
     intercourse on T.S. in order to sexually gratify himself. These
     matching characteristics elevate the incidents into a unique
     pattern that distinguishes them from a typical or routine child-
     abuse factual pattern. Hence, we reject Appellant's position that
     we are pigeonholing sexual abuse cases to such an extent that
     any prior instance of child abuse would be admissible in a
     subsequent child abuse prosecution. See also Commonwealth
     v. Hughes, 521 Pa. 423, 555 A.2d 1264 (1989) (evidence about
     prior rape correctly allowed at rape-murder trial since crimes
     were committed in similar geographic location, at similar time,
     characteristics of victim matched, and defendant used same
     method of attack). As was the case in Hughes, the similarities
     at issue herein were “not confined to insignificant details that
     would likely be common elements regardless of who committed
     the crimes.” Id. at 1283.

     Concededly, the time lapse at issue in this case was lengthy.
     V.B.’s abuse started in fall 1986 and ended in approximately
     1990. N.T. Motion, 7/29/02, at 4. The rape introduced at this
     trial occurred fifteen years prior to the assault at issue. Id. at 3.
     Thus, there was a ten-to-eleven-year period between the end of
     that abuse and the present abuse. However, as we noted
     [supra,] remoteness is merely one factor to be considered in
     determining admissibility; the importance of the gap in time is
     inversely proportional to the similarity between the crimes. In
     this case, the parallels are striking. The abuse was perpetrated
     in an identical manner on victims with identical characteristics
     and in an identical setting. The only exception was that the
     victim herein was able to stop the abuse from escalating.
     Hence, the fact that V.B.’s abuse occurred remotely to that in
     the present case was not determinative of the issue. In addition,
     since the crimes were comparable, the probative value of the
     evidence of V.B.’s abuse outweighed its prejudicial impact.

Id. at 1185-1186.




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       We find the same true here.                While the particular circumstances

surrounding the prior incidences were not identical, with respect to both K.G.

and A.G., Reed preyed upon his teenaged nieces, who were both about the

same age at the time he first vaginally raped them by holding them down. 9

See N.T., 4/28/2014, at 82, 152.               Moreover, both rapes involved physical

force, as opposed to only intimidation. See id. at 87, 155. Although K.G.

was 28 years old the second time Reed raped her, he was able to get her

alone only after taking advantage of their familial relationship. Indeed, K.G.

testified she only agreed to meet with Reed at his house, upon his

suggestion, to discuss her strained relationship with her own father. Id. at

153.   Further, as a result of that assault, K.G. became pregnant with the

victim herein, A.G. Accordingly, we find no abuse of discretion on the part

of the trial court in admitting evidence of Reed’s sexual assault of the

victim’s mother under the common plan, scheme and design exception.

       Nonetheless, prior bad acts evidence is admissible in a criminal case

“only if the probative value of the evidence outweighs its potential for unfair

prejudice.” Pa.R.E. 404(b)(2). With respect to this balancing test, the trial

court opined:
____________________________________________


9
  We note, too, that both K.G. and A.G. were teenaged mothers at the time
they were raped. The first time Reed forced K.G. to have sex, she was alone
at her parents’ home with her infant son. See N.T., 4/28/2014, at 152.
Similarly, the first time, Reed forced A.G. to have sex with him, she was
staying at his house with her one-year-old daughter. Id. at 84-87.




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      In the instant case, I found that the probative value of the
      evidence outweighed its prejudicial effect. Although evidence of
      the prior sexual assaults on the victim, A.G., and her mother,
      K.G., may have been prejudicial, it was not unduly so. As the
      comment to Rule 403 instructs, “‘[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.” Pa.R.E. 403 cmt. The sexual assault evidence,
      introduced for legitimate purposes, was not so prejudicial that it
      likely diverted the jury’s attention away from its duty of
      weighing the evidence impartially.

            Moreover, “[w]hether relevant evidence is unduly
      prejudicial is a function in part of the degree to which it is
      necessary to prove the case of the opposing party.”
      Commonwealth v. Gordon, 543 Pa. 513, 521, 673 A.2d 866,
      870 (1996). Here, the Commonwealth was required to prove
      the elements of rape, indecent assault, IDSI, sexual assault,
      unlawful contact and indecent exposure, which include forcible
      compulsion and non-consensual touching. [Reed] denied that
      the contact occurred, and since the uncorroborated testimony of
      the victim in this case might have reasonably led a jury to
      determine that there was a reasonable doubt as to whether
      [Reed] committed the crimes charged, it was fair to conclude
      that the other crimes evidence was necessary for the prosecution
      of the case. Without doubt, the other crimes evidence was
      prejudicial to [Reed]. That is what it is designed to be. On the
      facts of this case, however, it was not unduly prejudicial, as it
      was required for the Commonwealth’s case.

Trial Court Opinion, 10/31/2014, at 24-25.

      We agree. While Reed emphasizes the “remoteness of time” between

the sexual assault against A.G., and his prior assault of her mother, we find

that the probative value of the prior bad acts evidence outweighed any

potential prejudice. Indeed, the remoteness of time between the acts was

solely the result of Reed’s decision to sexually abuse and impregnate one

niece, and subsequently, sexually abuse and impregnate the daughter born

as a result of the first assault.   Although the evidence demonstrated the

                                    - 14 -
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baby born to A.G. in 2011 was Reed’s biological child, the only evidence that

the pregnancy was the result of a rape was A.G.’s own testimony.

Accordingly, the testimony of her mother, that A.G., too, was the product of

a rape by the same defendant, was of significant probative value.

Therefore, Reed’s challenge to the trial court’s admission of testimony

regarding his prior bad acts fails.

      In his second issue, Reed argues the trial court erred in denying his

motion to sever the cases for trial.      Our review of such a claim is well-

settled:

      In reviewing a trial court decision to consolidate or to sever
      offenses for trial, our standard is abuse of discretion. Offenses
      charged in separate informations may be tried together if they
      are “based on the same act or transaction” or if “the evidence of
      each of the offenses would be admissible in a separate trial for
      the other and is capable of separation by the jury so that there is
      no danger of confusion.” Pa.R.Crim.Pro. 582(A)(1). The court
      has discretion to order separate trials if “it appears that any
      party may be prejudiced” by consolidating the charges.
      Pa.R.Crim.Pro. 583.

      Our Supreme Court has established a three part test,
      incorporating these two rules, for deciding the issue of joinder
      versus severance of offenses from different informations. The
      court must determine

           whether the evidence of each of the offenses would be
           admissible in a separate trial for the other; whether such
           evidence is capable of separation by the jury so as to avoid
           danger of confusion; and, if the answers to these inquiries
           are in the affirmative, whether the defendant will be
           unduly prejudiced by the consolidation of offenses.

Commonwealth v. Thomas, 879 A.2d 246, 260 (Pa. Super. 2005) (some

internal citations omitted), appeal denied, 989 A.2d 917 (Pa. 2010).


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      Here, Reed argues the court improperly denied his motion to sever the

cases for trial because the “two dockets do not involve a common

scheme/plan/design and the evidence of each would not have been

admissible in a separate trial for the other.” Reed’s Brief at 21. He asserts

the two alleged assaults on A.G., four years apart, “occurred at different

time and in different locations.”    Id. at 19.    He further contends that

because the only similarity in the crimes was the victim, the evidence of

each incident would not have been admissible in a trial for the other.

      The trial court, however, concluded the cases should be consolidated

for trial based upon the above-stated three-part test. First, the court found

“the evidence from the two Informations showed a common scheme, plan or

design, as well as [Reed’s] identity,” and, therefore, would be admissible in

a separate trial for the other. Trial Court Opinion, 10/31/2014, 27. Next,

the court determined “the evidence was capable of separation by the jury”

because “[t]he offenses occurred at different times and in different places.”

Id. Lastly, the trial court found Reed would not be “unduly prejudiced by

the consolidation of the offenses” because the prejudice to him would not be

any greater than the general prejudice he would suffer by being linked to a

crime.   Id. at 27-28.

      Again, we find no error or abuse of discretion on the part of the trial

court. First, we agree that the evidence of each crime would be admissible

in a trial for the other. The 2007 incident, in which Reed exposed himself to

then 14-year-old A.G. and attempted to engage her in oral sex, would

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clearly be admissible in a trial for the 2010 rape to demonstrate that Reed’s

“sexual   misconduct   was    of   a     continuing   and   escalating   nature.”

Commonwealth v. Dunkle, 602 A.2d 830, 839 (Pa. 1992) (“McCormick on

Evidence states that prior sexual misconduct with the victim is admissible

‘[t]o show a passion or propensity for illicit sexual relations with the

particular person concerned in the crime on trial.’”) (citation omitted).

Indeed, the jury could infer the 2007 incident did not result in a rape simply

because Reed was interrupted by A.G.’s brother. Moreover, evidence of the

later incident would be admissible in a trial for the former to demonstrate

that when A.G. became impregnated with Reed’s child, it was not the result

of a consensual act.

      Moreover, we agree the crimes are easily separable because they

occurred three years apart in different locations, and involved different

sexual acts.   Lastly, we agree Reed has failed to demonstrate he was

prejudiced by the consolidation of the cases for trial. Indeed, with regard to

the 2007 incident, there were several eyewitnesses to the crime. Further,

with regard to the 2010 incident, the Commonwealth presented evidence

that Reed was the biological father of the child born to his 17-year old

daughter/great-niece nine months later. As our Supreme Court explained in

Commonwealth v. Lark, 543 A.2d 491 (Pa. 1988):

      The “prejudice” of which Rule [583] speaks is not simply
      prejudice in the sense that appellant will be linked to the crimes
      for which he is being prosecuted, for that sort of prejudice is
      ostensibly the purpose of all Commonwealth evidence. The
      prejudice of which Rule [583] speaks is, rather, that which would

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      occur if the evidence tended to convict appellant only by showing
      his propensity to commit crimes, or because the jury was
      incapable of separating the evidence or could not avoid
      cumulating the evidence. Such prejudice was not present in the
      instant case.

Id. at 499. Accordingly, we find no abuse of discretion on the part of the

trial court in denying Reed’s motion to sever the cases for trial.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2015




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