J-S27040-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JOSEPH M. TRIFIRO

                            Appellant                 No. 1763 WDA 2013


       Appeal from the Judgment of Sentence entered August 29, 2013
               In the Court of Common Pleas of Fayette County
              Criminal Division at No: CP-26-CR-0000466-2012


BEFORE: GANTMAN, P.J., ALLEN, and STABILE, JJ.

CONCURRING AND DISSENTING MEMORANDUM BY STABILE, J.:

                                               FILED OCTOBER 10, 2014

       The Majority holds that Appellant’s Ohio conviction for gross sexual

imposition properly was admitted as evidence of a common scheme to

commit the sex offenses charged in this case.        To reach this result, the

Majority seizes on general, non-specific similarities between the Ohio

conviction and this case to justify finding a common scheme, plan or design

to admit this evidence as an exception to Pennsylvania Rule of Evidence

404(b)(1). Because the record reflects the Ohio conviction was introduced

solely to prove Appellant’s criminal propensities in violation of Rule

404(b)(1), I respectfully dissent.1
____________________________________________


1
  I concur in the Majority’s rejection of Appellant’s sufficiency of the evidence
claim. I find it necessary to reach that claim even though I believe a new
(Footnote Continued Next Page)
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      Pennsylvania Rule of Evidence 404(b) provides:

      (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.

          (3) Notice in a Criminal Case. In a criminal case the
          prosecutor must provide reasonable notice in advance of
          trial, or during trial if the court excuses pretrial notice on
          good cause shown, of the general nature of any such
          evidence the prosecutor intends to introduce at trial.

Pa.R.E. 404(b).2

      The common law has long prohibited the use of prior bad acts to prove

a defendant’s guilt.        See Shaffner v. Commonwealth, 72 Pa. 60, 65

(1872) (“It is not proper to raise a presumption of guilt, on the ground, that

having committed one crime, the depravity it exhibits makes it likely he

would commit another.”). The purpose of what is now Rule 404(b):
                       _______________________
(Footnote Continued)

trial is necessary, because where insufficient evidence supports a conviction,
double jeopardy bars retrial. See, e.g., Commonwealth v. Markman, 916
A.2d 586, 598-99 (Pa. 2007) (addressing the sufficiency of the evidence
even though a new trial was warranted).
2
   Our Supreme Court rescinded and replaced the Pennsylvania Rules of
Evidence, effective March 18, 2013. Thus, the current, restyled version was
in effect at Appellant’s trial on April 4, 5, and 8, 2013.



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       is to prevent the conviction of an accused for one crime by the
       use of evidence that he has committed other unrelated crimes,
       and to preclude the inference that because he has committed
       other crimes he was more liable to commit that crime for which
       he is being tried. The presumed effect of such evidence is to
       predispose the minds of the jurors to believe the accused guilty,
       and thus effectually to strip him of the presumption of
       innocence.

Commonwealth v. Trowery, 235 A.2d 171, 172 (Pa. Super. 1967).

       Rule 404(b)(2) contains a non-exhaustive list of exceptions to the

general rule prohibiting introduction of uncharged acts for purposes other

than showing a defendant’s propensity to commit crime.       See Pa.R.E. 404

Comment; Commonwealth v. Brown, 52 A.3d 320, 325-36 (Pa. Super.

2012).    The exceptions are as old as the rule.     See Commonwealth v.

Ferrigan, 44 Pa. 386, 387-88 (1863) (holding evidence of adultery—then a

crime—between a man and his mistress was admissible to show motive and

intent to murder the latter’s husband). However, “the exceptions cannot be

stretched in ways that effectively eradicate the rule.”   Commonwealth v.

Ross, 57 A.3d 85, 104 (Pa. Super. 2012) (en banc).

       The exception utilized in this case is the common scheme, plan, or

design exception.3      “Under Pennsylvania law, evidence of prior bad acts is
____________________________________________


3
   The trial court purported to admit the Ohio conviction as evidence of
“common motive.” “To be admissible [as evidence of motive], there must
be a specific ‘logical connection’ between the other act and the crime at
issue which establishes that ‘the crime currently being considered grew out
of or was in any way caused by the prior set of facts and circumstances.’”
Ross, 57 A.3d at 100 (quoting Commonwealth v. Martin, 387 A.2d 835,
838 (Pa. 1978)). I agree that the admission of the Ohio conviction cannot
be sustained as proof of motive. Moreover, a “common motive” to engage in
(Footnote Continued Next Page)


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admissible to prove a common scheme, plan or design where the crimes

are so related that proof of one tends to prove the others.” Id. at 103

(emphasis added) (internal quotation omitted). The prior bad acts must be

      so nearly identical in method as to earmark them as the
      handiwork of the accused. Here, 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 and distinctive as to be like a
      signature.

Id. (quoting Commonwealth v. Shivley, 424 A.2d 1257, 1259 (Pa. 1981))

(emphasis in original); see also Commonwealth v. Einhorn, 911 A.2d

960, 967 (Pa. Super. 2006) (“The degree of similarity is an important factor

in determining the admissibility of other crimes or bad acts under this

exception.”).    Factors to establish similarity include “the elapsed time

between the crimes, the geographical proximity of the crime scenes, and the

manner in which the crimes were committed.” Commonwealth v. Cain, 29

A.3d 3, 7 (Pa. Super. 2011) (internal quotation omitted). “Furthermore, the

importance of the intervening time period is inversely proportional to the

similarity of the crimes in question.”           Einhorn, 911 A.2d at 967 (internal

quotation omitted).



                       _______________________
(Footnote Continued)

criminal activity is not an exception to Rule 404(b)(1). Such an exception
would swallow the Rule.




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      In this case, the Majority holds that “the record does support the

admission of Appellant’s Ohio conviction as prior bad act evidence of

Appellant’s scheme and plan . . . .”        Majority Memorandum, at 9.     In

support, the Court cites Commonwealth v. Aikens, 990 A.2d 1181 (Pa.

Super. 2010). Aikens, however, does not support admission of Appellant’s

Ohio conviction in this case.

      In Aikens, we held that the trial court properly admitted evidence that

Aikens had sexually abused his biological daughter, V.B., as proof of his

common scheme, plan, or design to abuse a second biological daughter, T.S.

The “fact pattern involved in the two incidents was markedly similar.” Id.

at 1185-86. The victims were the same age at the time of the abuse (V.B

was 14 and T.S. was 15).        Id. at 1182-83, 1185-86. Aikens initiated the

sexual abuse while the victims were staying in his apartment; he showed

pornographic movies to the victims, the assaults occurred at night in Aikens’

bed, and the defendant mimicked sexual intercourse to gratify himself. Id.

at 1185-86.    We found that ”[t]hese matching characteristics elevate the

incidents into a unique pattern that distinguishes them from a typical

or routine child-abuse factual pattern.” Id. at 1186 (emphasis added).

As I explain infra, no such unique pattern exists here to connect the Ohio

conviction and this case from any other child-abuse cases.

      I find substantial support in other of our cases for excluding the Ohio

conviction here under Rule 404(b)(1) (and before it, the common law). For

example, in Commonwealth v. G.D.M., Sr., 926 A.2d 984, 987-88 (Pa.

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Super. 2007), we affirmed the admission of the defendant’s convictions of

sexually abusing a child under the common scheme exception to Rule

404(b)(1). In G.D.M., the timeframe between two incidents was very close,

both   molestations   occurred    in   the   family   home,   both   involved   the

defendant’s biological children, and both involved manipulation of victims’

genitals by hand only. Id.

       In Commonwealth v. O’Brien, 836 A.2d 966, 971-72 (Pa. Super.

2003), we held that the trial court erred in refusing to admit prior

convictions of sexual abuse under the common scheme exception.                   In

O’Brien, both incidents involved boys of the same age and the defendant

was a family friend of the victims. Id. The defendant assaulted the victims

while alone with them in their homes, groomed them with pornography, and

forced his penis into their mouths.      Id.   We held that the prior conviction

was sufficiently similar to the charges to constitute a “signature” crime

based on their shared similarities and the prior incident was not too remote

in time to be inadmissible. Id.

       Finally, on direct review in Commonwealth v. Hughes, 555 A.2d

1264, 1282 (Pa. 1989), our Supreme Court approved the admission of the

defendant’s rape of one girl (Ms. Oquendo) to prove that he raped and

murdered another (Ms. Graham).

       A comparison of the two crimes, gleaned from Ms. Oquendo’s
       testimony and [a]ppellant’s confessions, yields the following
       similarities: (1) both crimes involved young females (Graham
       was nine; Oquendo was twelve); (2) both victims were non-
       Caucasian (Graham was [African-American]; Oquendo was

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       Puerto Rican); (3) both crimes occurred during the daytime; (4)
       both crimes took place within a four-block radius; (5) both
       crimes took place within a five-minute walk from [a]ppellant’s
       home; (6) both crimes involved circumstances in which the
       victim was lured or strong-armed off the street; (7) both victims
       were taken to upstairs bedrooms of vacant buildings; (8) in both
       crimes the assailant ordered the victims to undress; (9) both
       crimes involved rape, other sex acts (Graham was anally;
       Oquendo was orally), and manual strangulation; and (10) both
       crimes involved circumstances in which the accused and the
       victims previously were acquainted.

Id.4

       In contrast, this Court en banc in Ross reversed a first-degree murder

conviction because the trial court, among other errors, improperly admitted

evidence of the defendant’s past violent abuse of women as proof of a

common scheme to rape and murder the victim. Ross, 85 A.3d at 103-04.

We held that evidence of the prior assaults failed to “establish a pattern of

conduct on Ross’ part so distinctive that “proof of one tends to prove the

others.”    Id. at 104 (internal quotation).     Rather, the prior acts showed

merely that Ross serially abused his paramours, and “did not show a unique

‘signature’ modus operandi relevant to [the victim’s] murder.” Id.

       In this case, the Majority finds that the following factors evince a

common scheme supporting admissibility of Appellant’ Ohio conviction:

____________________________________________


4
  Hughes’ rape and murder of Graham actually predated his assault and rape
of Oquendo. Rule 404(b), however, allows the admission of subsequent, as
well as prior acts. See, e.g., Commonwealth v. Weakley, 972 A.2d 1182
(Pa. Super. 2009) (holding evidence of a robbery committed after the
offenses charged was admissible to prove identity).



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      -   The offenses occurred at a “similar time of year,” i.e., October
          6, 2001 and September 20-22, 2011;

      -   The victims were prepubescent children aged eight in the
          Ohio conviction, and six and four in this case;

      -   Both the Ohio conviction and this case involved “sexual
          contact with children;”

      -   None of the victims was Appellant’s spouse; and

      -   The Ohio conviction required proof of force or threat of force,
          and in this case Appellant confessed to his cellmate that he
          abused the victims because he liked the feeling of power over
          them.

See Majority Memorandum, at 10. Respectfully, unlike a signature crime, I

find that these facts are so general that they very well could be present in

every case in which a defendant is charged with sexually abusing a child.

Some are so general they could apply in virtually every sexual assault case.

Simply put, the Majority’s factors fail to demonstrate the circumstances

surrounding Appellant’s Ohio conviction are sufficiently similar to the facts of

the offenses committed in this case to support admissibility under Rule

404(b)(2).

      The first factor found by the Majority, that the offenses were

committed at a similar time of year, is an abstract fact that proves nothing.

No evidence of record exists as to why Appellant committed the offenses in

September and October.       The timing could be pure coincidence, and the

Commonwealth presented no evidence as to how the commission of the

crimes at the same time of year tended to prove a signature modus

operandi.



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      Under the second factor, the Majority posits that the victim in the Ohio

conviction and the victims here are all prepubescent children, aged eight,

six, and four. That is not a unique fact. Rather, it is common to all sexual

assaults of children, defined by the Crimes Code as those under 13 years of

age. See, e.g., 18 Pa.C.S.A. § 3125(b).

      As to the third factor, the Majority points to the elements of the Ohio

conviction as evidence of similarity. The Court states the two offenses are

similar because they involved “sexual contact with children.”        Majority

Memorandum, at 10.       That element is common to all sexual assaults of

children. It is the actus reus of the offense. The Majority cites no authority

in which we ever found facts so general as these to permit admission of

common scheme evidence. Under the common scheme exception, it is the

similarity between the other acts and the facts surrounding the crimes

charged—not the mere fact that the two incidents occurred—which makes

the prior act evidence of a common scheme.        See Aikens, 990 A.2d at

1185-86 (defendant mimicked of sexual intercourse); G.D.M., Sr., 926 A.2d

at 987-88 (defendant forced victims to manipulate his genitals by hand);

O’Brien, 836 A.2d at 971-72 (defendant forced victims to perform oral sex

on him); see also Hughes, 55 A.2d at 1282 (both crimes involved forcible

vaginal sexual intercourse, involuntary deviate sexual intercourse, and

manual strangulation).

      As to the fourth factor, the Majority notes that none of Appellant’s

victims were his spouse.     To use Appellant’s marital relationship to the

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victims as evidence of similarity is imprudent. All sexual assaults of children

involve perpetrators not married to their victims, since, inter alia, children

cannot marry.5      See 23 Pa.C.S.A. § 1304(b)(1) (children under 16 require

court approval to marry); Ohio R.C. § 3101.01 (males under 18 and females

under 16 cannot marry).

       Finally, addressing the fifth factor, the instant offenses did not require

proof of force—unlike the Ohio conviction.           To the extent Appellant

committed the current offenses motivated by a feeling of power over the

victims, that fact is not sufficiently unique to constitute evidence of

similarity, absent some factual nexus between the prior bad act and the

offense charged. See Commonwealth v. Seiders, 614 A.2d 689, 692 (Pa.

1992) (holding that prior sexual assault of a child was not admissible as

proof of defendant’s motive to seek sexual gratification by assaulting



____________________________________________


5
  The Ohio conviction required proof that the victim was not Appellant’s
spouse only because Ohio still retains spousal immunity to the crime of gross
sexual imposition as charged against Appellant. Ohio R.C. §§ 2907.01(L),
2907.05(A)(1); see Michelle J. Anderson, Marital Immunity, Intimate
Relationships, and Improper Inferences: A New Law on Sexual Offenses by
Intimates, 54 HASTINGS L.J. 1465, 1469-70 & n.9 (2003) (noting that Ohio
retains partial spousal immunity for the crime of gross sexual imposition).

Appellant could have been charged with gross sexual imposition under Ohio
R.C. § 2907.05(B), which prohibits touching the genitalia of a person under
12 with the intent to abuse, humiliate, harass, degrade, or arouse or gratify
the sexual desire of any person. Spousal immunity is not a defense to a
violation of § 2907.05(B).



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children, because requisite causal connection between two offenses was

lacking).

       In addition, the Majority does not account for record facts that

establish significant differences between the two offenses, which vitiate

evidence of a common scheme:

       -    A decade passed between the Ohio offense and the offenses
            in this case;

       -    For the Ohio offense, Appellant admitted to sexual contact,
            i.e., indecent contact,6 with the victim. This case required
            proof of aggravated indecent assault and included evidence of
            involuntary deviate sexual intercourse;

       -    Appellant committed the current offenses in the apartment of
            the victims’ parents in Masontown, Pennsylvania. We do not
            know where or under what circumstances he committed the
            Ohio offense, except that it occurred in Cuyahoga County,
            Ohio;

       -    The offenses in this case occurred while the victims were in
            bed and possibly asleep. No evidence of record exists
            regarding the factual circumstances giving rise to the Ohio
            conviction;

       -    Appellant was a juvenile when he committed the Ohio
            offense. He was an adult in this case;

       -    The Ohio offense involved one victim. This case involved two
            victims;

       -    The victim of the Ohio offense was male. The victims in this
            case are female; and
____________________________________________


6
  Ohio law defines “sexual contact” as “any touching of an erogenous zone of
another, including without limitation the thigh, genitals, buttock, pubic
region, or, if the person is a female, a breast, for the purpose of sexually
arousing or gratifying either person. Ohio R.C. § 2907.01(B); cf. 18
Pa.C.S.A. § 3101 (defining indecent contact).



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      -   The victim of the Ohio offense was Appellant’s relative.
          Appellant is unrelated to the victims in this case.

      While these differences largely speak for themselves, I wish to provide

additional comment on two; the intervening time and the manner by which

the crimes were committed.

      Common scheme evidence can include a large time lapse, but only

where the prior act is extremely similar to the current offense, because lapse

in time and similarity are inversely proportional. See Aikens, 990 A.2d at

1186 (finding that probative value of striking parallels between two offenses

outweighed time between offenses).     Here, ten years passed between the

incident giving rise to the Ohio conviction and the assaults in this case. The

Majority fails to explain how the facts they find in common between the Ohio

conviction and here cancel out the significant time difference between them.

      Finding any similarity in the manner by which the crimes were

committed in Ohio and the crimes charged here is quite problematic.        No

record evidence exists to show similarity in the manner of committing the

offenses charged here and those in Ohio.       Cf. Aikens, supra (offenses

occurred in defendant’s bedroom in his apartment); G.D.M., Sr., supra

(“Both molestations occurred in the family home[.]”); O’Brien, supra,

(offenses occurred inside defendant’s home, and often, his bedroom); cf.

also Hughes, supra (“[B]oth crimes took place within a four-block

radius[.]”).   The record reveals no details regarding where Appellant

committed the Ohio offense (in his house, in the victim’s house, the time of

day, the way in which Appellant was able to isolate the victim, etc.), except

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that it occurred in or near Cleveland. No doubt, this is so because only the

certified record of the Ohio conviction was introduced at trial to support the

common scheme exception. In contrast, the offenses in this case occurred

in Masontown, Pennsylvania, in the apartment the victims’ parents were

vacating, at night, and while the victims were in bed and possibly asleep.

      I find the Commonwealth’s argument suffers from much of the same

infirmity as the rationale expressed by the Majority.      The Commonwealth

states that the Ohio conviction “showed that Appellant had a sexual

predilection toward young children as well as a penchant for force and

control   consistent   with   the   testimony   of   Commonwealth   witnesses.”

Appellee’s Brief at 4. Its argument is exactly what Rule 404(b)(1) prohibits:

use of prior bad acts to prove Appellant’s character to show that he acted in

accordance with that character in committing the offenses charged here.

      In sum, any similarities between the Ohio conviction and this case fall

woefully short of proof of a common scheme, plan or design. Indeed, the

Ohio conviction and this case are similar only in the abstract, in that both

involved sexual abuse of prepubescent children. The victims were not the

same gender, same age, or same relation to Appellant. The sexual contact

between Appellant and the victims was not the same. The factual predicate

surrounding the offenses was not the same. The Commonwealth presented

evidence of similarity only at the most basic level—a “sexual predilection

toward young children.”       In my opinion, admission of the Ohio conviction

was a clear violation of Rule 404(b)(1).

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     Because the Ohio conviction was inadmissible under Rule 404(b)(1),

unlike the Majority, I would not reach the issue of whether its probative

value outweighed any prejudicial effect under Rule 404(b)(3). See Ross, 57

A.3d at 104 n.18.    Nonetheless, I find it necessary to comment on the

Majority’s opinion that the trial court’s jury charge weighed against any

prejudice regarding the Ohio conviction. Citing Commonwealth v. Spotz,

756 A.2d 1139, 1153 (Pa. 2000), the Majority concludes the trial court’s

limiting instruction weighs against a finding of prejudice.         Majority

Memorandum, at 10-11. The Majority fails to quote the entire instruction,

which likely increased prejudice to the Appellant:

     Now, you have heard evidence tending to prove that the
     defendant was guilty of gross sexual imposition upon an 8-year-
     old boy, with an offense date of October 6th of 2001. This
     evidence is before you for a limited purpose, that is, as
     circumstantial evidence for the purpose of tending to
     show the presence of a motive to engage in sexual
     contact with a child. This evidence must not be considered by
     you in any other was other than for the purpose I just stated.
     You must not regard this evidence as showing that the defendant
     is a person of bad character or criminal tendencies from which
     you might be inclined to infer guilt. You may only consider this
     as evidence of motive to the extent that it helps the
     Commonwealth to prove its case.

N.T. Trial, 4/4, 5, 8/13, at 281 (emphasis added). In other words, the trial

court told the jury it could use the Ohio conviction as proof that Appellant

had a motive to sexually abuse children.        At best, the instruction is

confusingly self-contradictory in that the trial court also informed the jury

that it could not use the Ohio conviction as evidence of bad character or



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criminal tendencies.7 At worst, the instruction utterly fails to conform to the

law by informing the jury that it could use the Ohio conviction as proof of his

guilt in this case.

        I further find that the error in admitting evidence of Appellant’s Ohio

conviction was not harmless.8           “Evidence of prior criminal activity . . . is

probably only equaled by a confession in its prejudicial impact upon a jury.”

Commonwealth v. Spruill, 391 A.2d 1048, 1050 (Pa. 1978).                        “The

presumed effect of such evidence is to predispose the minds of the jurors to

believe the accused guilty, and thus effectually to strip him of the

presumption of innocence.” Trowery, 235 A.2d at 172. Indeed, evidence

of other crimes is so prejudicial that a testifying defendant cannot be

questioned about prior convictions except in limited circumstances, even if

those    convictions     are   properly        admissible.   42   Pa.C.S.A.   § 5918;

Commonwealth v. Garcia, 712 A.2d 746, 748-49 (Pa. 1998) (reversing a

murder conviction where testifying defendant was cross-examined on his

prior convictions of crimes of falsehood).



____________________________________________


7
  The trial court did not explain under which circumstances “the presence of
a motive to engage in sexual contact with a child” would not be evidence of
bad character or criminal tendencies.
8
  See Commonwealth v. Allshouse, 36 A.3d 163, 182 (Pa. 2012)
(defining harmless error and noting an appellate court may raise it sua
sponte).



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       Rule 404(b)(1) explicitly prohibits introduction of evidence of prior bad

acts for the purpose of showing that the defendant has a generalized motive

to commit a crime—here the motive to sexually abuse children.          For that

reason, Rule 404(b)(2) requires “a close factual nexus sufficient to

demonstrate the connective relevance of the prior bad acts to the crime in

question,” Ross, 57 A.3d at 105 (emphasis added), i.e., the crime for

which the defendant is on trial. Here, the record fails to support a “unique

fact pattern” that connects this and the Ohio conviction from other child-

abuse cases. Aikens, 990 A.2d at 1186. My review of the record indicates

that Appellant’s Ohio conviction was used solely to show that he sexually

abuses children so that the improper inference could be drawn that he

committed the sexual assaults charged in this case.

       The Majority allows Appellant’s conviction to stand despite the highly

prejudicial use of his prior conviction to infer guilt. Appellant was charged

with the despicable crimes of sexually abusing small children. Infamy of the

charges, however, is an insufficient reason to disregard the Rules of

Evidence. Appellant’s Ohio conviction is not evidence of a common scheme,

and it should not have been introduced into evidence at his trial. I would

vacate the judgment of sentence and remand for a new trial.9 Therefore, I

respectfully dissent.

____________________________________________


9
 I would not reach the remaining issues raised by Appellant. Nonetheless, I
believe the Majority has applied the wrong standard of review to Appellant’s
(Footnote Continued Next Page)


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                       _______________________
(Footnote Continued)

challenge to his sentence. The Majority purports to review the trial court’s
decision for an abuse of discretion. Majority Memorandum, at 4. Appellant,
however, challenges the application of a mandatory minimum sentence, 42
Pa.C.S.A.    § 9718.2,   as    grossly  disproportionate     and,   therefore,
unconstitutional. “[A]n appellant who challenges the constitutionality of his
sentence of imprisonment on a claim that it violates his right to be free from
cruel and unusual punishment raises a legality of the sentencing claim.”
Commonwealth v. Yasipour, 957 A.2d 734, 740 n.3 (Pa. Super. 2008)
(internal quotation omitted). “When the legality of a sentence is at issue on
appeal, our standard of review is de novo and our scope of review is
plenary.” Commonwealth v. Catt, 994 A.2d 1158, 1160 (Pa. Super. 2010)
(en banc); see also Commonwealth v. Baker, 78 A.3d 1044, 1047-49 &
n.3 (Pa. 2013) (reviewing de novo and rejecting a constitutional challenge to
§ 9718.2). Moreover, application of § 9718.2 to Appellant was mandated by
statute, and thus not within the trial court’s discretion.         See, e.g.,
Commonwealth v. Wisor, 928 A.2d 270, 273 n.6 (Pa. Super. 2007).
Finally, I note that Baker, 78 A.3d at 1045 (holding that application of
§ 9718.2 to second conviction of possessing child pornography was not cruel
and unusual punishment), completely forecloses Appellant’s argument.



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