J-S38032-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                   Appellee              :
                                         :
      v.                                 :
                                         :
SETH A. TRAVIS,                          :
                                         :
                   Appellant             :    No.   1914 WDA 2017

           Appeal from the Judgment of Sentence December 8, 2017
               in the Court of Common Pleas of McKean County
              Criminal Division, at No. CP-42-CR-0000219-2016

BEFORE: BOWES, NICHOLS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:          FILED: August 7, 2018

     Seth A. Travis (Appellant) appeals from the judgment of sentence

entered on December 8, 2017, following his jury convictions for rape, indecent

assault, and simple assault. Upon review, we affirm.

     We offer the following factual summary based upon the testimony at

trial. On April 11, 2016, Appellant, who was 19 years old at the time, sent a

Facebook friend request to T.V., who was 22 years old at the time.       T.V.

accepted Appellant’s friend request, and the two of them “started messaging

back and forth,” which led to their exchanging cell phone numbers and

subsequent texting. N.T., 6/26/2017, at 60. Appellant then met T.V. at her

father’s house around 11:00 p.m. that night, and the two walked to

Appellant’s house. Appellant had told T.V. that his mother would be at the

house, but when she got there, Appellant’s mother was not home.         After




* Retired Senior Judge assigned to the Superior Court.
J-S38032-18


arriving, Appellant wanted to change clothes, and T.V. testified that she “was

upstairs playing on [her] phone sitting on [Appellant’s] bed.” Id. T.V. then

testified to the following.

      [Appellant] had then taken my phone and set it on the stand or
      somewhere next to his bed and then he had started kissing me
      and I was telling him “no” and trying to get him off me. He had
      grabbed [m]y hand and [] my hair and was fighting back with me
      holding me down so he could get my pants [] off…

                                      ***

      Then when he got them off he began to have sexual contact[1]
      with me and then when he was done I told him that I had to leave
      because I had to do laundry for work but he wanted me to stay.
      So I told him that my dad was coming to meet me and he then
      walked me downstairs so I could leave.

Id. at 60-61.

      T.V. testified that she left Appellant’s house and called her friend,

Georgia Moore, to pick her up. T.V. and Moore went to Moore’s house where

T.V. explained what happened.       T.V. and Appellant also exchanged text

messages. T.V. texted to Appellant, “I told you no so many times and you

didn’t like that answer.” Id. at 79 (emphasis added). Appellant responded,

“Huh, and I didn’t hear you say no.” Id. at 80. T.V. texted, “I said it a million

times when you were kissing on me and everything I told you I don’t just …

sleep with people.” Id. Appellant responded, “I’m deaf in one ear and my

other can hear some I’m sorry.” Id.




1T.V. later testified that this meant that “[h]e put his penis in her vagina.”
Id. at 73.


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      Moore called T.V.’s stepmother who called police. Sergeant Raymond

Douglas went to Moore’s house, and then transported T.V. and Moore to the

hospital. After being treated at the hospital, T.V. provided a statement to

Sergeant Douglas.     Sergeant Douglas interviewed Appellant the following

morning, where he told police that he and T.V. had consensual sex the night

before. Appellant also told police that “[h]e had trouble hearing sometimes.”

Id. at 143. Appellant was then arrested and charged in connection with this

incident.

      Prior to trial, counsel for Appellant filed a motion in limine to exclude

evidence of Appellant’s prior juvenile adjudication for sexual assault. That

adjudication occurred in 2013, when Appellant was 16 years old, and involved

17-year-old victim, B.B. The trial court heard argument on this motion, and

on June 19, 2017, the trial court denied Appellant’s motion.

      A jury trial was held on June 26 and 27, 2017.         In addition to the

testimony by T.V., the jury also heard testimony from Moore and the nurses

who cared for T.V. at the hospital. Further, B.B. and Officer Steven Green,

who interviewed Appellant about the incident with B.B., testified as permitted

after Appellant’s motion in limine had been denied.

      B.B. told the jury that Appellant invited her over to his house for dinner.

B.B. testified that her mother called Appellant’s mother to make sure this was

okay, and according to B.B., Appellant’s mother said yes. Appellant and B.B.

walked to Appellant’s house, where his mother and grandmother were home.



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The two went to Appellant’s room, where Appellant proceeded to have sex

with her. B.B. testified that she was screaming and trying to push him off.

According to Appellant, if B.B. said “no,” “he did not hear her.” N.T.,

6/27/2017, at 107.

      The jury found Appellant guilty of all charges in connection with the rape

of T.V. On December 8, 2017, Appellant was sentenced to an aggregate term

of 7 to 14 years of incarceration. Appellant timely filed a notice of appeal, and

both Appellant and the trial court complied with Pa.R.A.P. 1925.

      On appeal, Appellant argues that “the trial court erred by permitting the

Commonwealth to introduce evidence at trial of Appellant’s prior juvenile

adjudication for sexual assault.” Appellant’s Brief at 4. We consider this issue

mindful of the following.

      The admission or exclusion of evidence is a matter vested in the
      trial court’s sound discretion, and we may reverse the court’s
      ruling only upon a showing of a clear abuse of that discretion. An
      abuse of discretion is not merely an error of judgment, but is
      rather the overriding or misapplication of the law or an exercise
      of judgment that is manifestly unreasonable, or the result of bias,
      prejudice, ill-will or partiality, as shown by the evidence of record.
      Our scope of review is limited to an examination of the trial court’s
      stated reason for its decision.

Commonwealth v. Wattley, 880 A.2d 682, 685 (Pa. Super. 2005).

      Relevance is the threshold for admissibility of evidence. “Evidence
      is relevant if: (a) it has any tendency to make a fact more or less
      probable than it would be without the evidence; and (b) the fact
      is of consequence in determining the action.” Pa.R.E. 401.
      “Evidence that is not relevant is not admissible.” Pa.R.E. 402. In
      addition, “[t]he court may exclude relevant evidence if its
      probative value is outweighed by a danger of one or more of the
      following: unfair prejudice, confusing the issues, misleading the


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      jury, undue delay, wasting time, or needlessly presenting
      cumulative evidence.” Pa.R.E. 403; see Commonwealth v.
      Kouma, 53 A.3d 760, 770 (Pa. Super. 2012) (stating that even
      when evidence meets the relevance requirements, “such evidence
      may still be excluded where its probative value is outweighed by
      the danger of unfair prejudice[]”).

            However, [e]vidence will not be prohibited merely
            because it is harmful to the defendant. [E]xclusion is
            limited to evidence so prejudicial that it would inflame
            the jury to make a decision based on something other
            than the legal propositions relevant to the case.... This
            Court has stated that it is not required to sanitize the
            trial to eliminate all unpleasant facts from the jury’s
            consideration where those facts are relevant to the
            issues at hand[.]

      Kouma, 53 A.3d at 770 (citation omitted); see Pa.R.E. 403, cmt.
      (defining “unfair prejudice” as “a tendency to suggest a decision
      on an improper basis or to divert the jury’s attention away from
      its duty of weighing the evidence impartially[]”).

Commonwealth v. McCarthy, 180 A.3d 368, 377 (Pa. Super. 2018) (some

citations omitted).

      Our rules provide further direction when the evidence relates specifically

to other crimes, wrongs, or acts, such as a prior adjudication.

      (b) Other crimes, wrongs, or acts.

            (1) Evidence of other crimes, wrongs, or acts is not
            admissible to prove the character of a person in order to
            show action in conformity therewith.

            (2) Evidence of other crimes, wrongs, or acts may be
            admitted for other purposes, such as proof of motive,
            opportunity, intent, preparation, plan, knowledge, identity
            or absence of mistake or accident.

            (3) Evidence of other crimes, wrongs, or acts proffered
            under subsection (b)(2) of this rule may be admitted in a



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               criminal case only upon a showing that the probative value
               of the evidence outweighs its potential for prejudice.

Pa.R.E. 404 (b)(1)-(3). Further,

        while evidence of prior bad acts may be relevant and admissible,
        there is the potential for misunderstanding on the part of the jury
        when this type of evidence is admitted. This evidence must,
        therefore, be accompanied by a cautionary instruction which fully
        and carefully explains to the jury the limited purpose for which
        that evidence has been admitted.

Commonwealth v. Weiss, 81 A.3d 767, 798 (Pa. 2013) (internal citations

and quotation marks omitted). See also Commonwealth v. Cousar, 154

A.3d 287, 304 (Pa. 2017) (stating that “where evidence of a defendant’s prior

bad acts is admitted, the defendant is entitled to a jury instruction that the

evidence is admissible only for a limited purpose”).

        Here, the trial court concluded that this case was analogous to

Commonwealth v. Tyson, 119 A.3d 353 (Pa. Super. 2015) (en banc),2 “as

there is no issue of identity [of the perpetrator,] but evidence of the prior

crime is permitted on the issue of ‘mistake or accident’ as to consent and also

on the issue of ‘common plan or scheme.’” Trial Court Order, 6/20/2017.

        Despite the fact that the trial court permitted admission of this evidence

pursuant to two different Pa.R.E. 404(b)(2) exceptions, the trial court

provided a cautionary instruction as to the absence of mistake exception only.

See N.T., 6/26/2017, at 104 (instructing the jury prior to Officer Green’s

testimony that this evidence may be considered only for the limited purpose


2   This case will be discussed in detail infra.


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of whether Appellant mistakenly believed that T.V. consented); N.T.,

6/27/2017, at 39-40 (instructing the jury after the close of evidence that this

evidence was to be used only to show that Appellant “did not mistakenly

believe that [T.V.] gave consent” and that “must not be considered by [the

jury] in any way than for the purpose [the trial court] just stated”) (emphasis

in original).

      Based on the foregoing, it is apparent the evidence was admitted only

pursuant to the absence of mistake exception. Thus, despite the fact that

Appellant spends a significant portion of his brief arguing that the trial court

erred in admitting this evidence pursuant to the common plan or scheme

exception, see Appellant’s Brief at 17-29, we will not consider that argument

on appeal because that was not a basis for the admission of this evidence.

      We now turn to the basis upon which this evidence was admitted, the

absence of mistake exception. With respect to this exception, this Court has

held that

      evidence may be admitted under the “absence of mistake or
      accident” exception where “the manner and circumstances” of two
      crimes    are    “remarkably   similar.”   Commonwealth         v.
      Boczkowski, [] 846 A.2d 75, 86 ([Pa.] 2004). In Boczkowski,
      our Supreme Court held that evidence related to the death of the
      defendant’s first wife was admissible in the trial against him for
      the murder of his second wife, where both women died of
      drowning under very similar circumstances. Id. Our Supreme
      Court thus ruled that the evidence was relevant to prove that the
      second death was a homicide, rather than (as the defendant
      claimed) an accident.

Commonwealth v. Kinard, 95 A.3d 279, 294–95 (Pa. Super. 2014).



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      Here, the trial court concluded that the situation in this case is analogous

to this Court’s decision in Tyson, supra. The facts of Tyson are the following:

      On July 31, 2010, [the victim, G.B.,] left work because she felt ill
      after donating plasma. G.B. asked [Tyson], whom she knew
      casually, to bring her some food. [Tyson] arrived at G.B.’s
      apartment and stayed as she fell asleep. During the early morning
      hours of August 1, 2010, G.B. claims she awoke to find [Tyson]
      having vaginal intercourse with her. [Tyson] told G.B. she had
      taken her pants off for him. G.B. claims she told [Tyson] to stop,
      and he complied. After falling back asleep, G.B. woke again later
      that night and went into her kitchen, where she allegedly found
      [Tyson] naked. G.B. claims she told [Tyson] she did not want to
      have sex with him and returned to bed. Shortly thereafter, G.B.
      claims, she woke up; and [Tyson] was again having vaginal
      intercourse with her. G.B. told [Tyson] to stop and asked him what
      he was doing. [Tyson] told G.B. her eyes were open the whole
      time. G.B. told [Tyson] to leave her apartment. G.B. then went to
      a hospital for treatment.

Tyson, 119 A.3d at 356.

      Prior to Tyson’s trial, the Commonwealth filed a motion in limine seeking

to introduce evidence of Tyson’s 2001 rape conviction on the basis that the

instant rape was part of a “common scheme or plan” and that Tyson’s defense

that he believed G.B. consented was less likely to be a mistake (i.e. absence

of mistake exception). Id. The trial court declared Tyson’s prior conviction

inadmissible, and the Commonwealth filed an interlocutory appeal. On appeal,

this Court reversed. First, this Court concluded that Appellant’s prior rape

conviction was relevant.

           Instantly, the record reveals the following factual similarities
      between the present case and [Tyson’s] prior rape conviction. In
      each case, [Tyson] was acquainted with the victim—a black
      female in her twenties—and he was an invited guest in the victim’s
      home. [Tyson] was aware that each victim was in a weakened or


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     compromised state. Each victim ultimately lost consciousness. In
     each case, the victim awoke in her bedroom in the early morning
     hours to find [Tyson] having vaginal intercourse with her. The
     evidence of [Tyson’s] prior rape passes the basic relevance
     threshold, as it tends to increase the probability that [Tyson]
     knowingly had non-consensual sex with G.B. in the present case.

Tyson, 119 A.3d at 360 (citations omitted). With respect to the absence of

mistake exception, this Court concluded that

     the trial court should have declared the evidence of [Tyson’s] prior
     rape conviction admissible under the absence of mistake or
     accident exception to Rule 404. [Tyson] disputes G.B.’s account
     that she was asleep when [Tyson] initiated sexual intercourse with
     her—[Tyson] maintains he thought G.B. consented to the act.
     Given the relevant similarities between the two incidents,
     evidence of [Tyson’s] prior rape would tend to prove he did not
     “mistakenly believe” G.B. was awake or gave her consent. [Tyson]
     was invited into G.B.’s home for another reason, [Tyson] knew
     G.B. was in a compromised state, and G.B. awoke to find [Tyson]
     having vaginal intercourse with her. [Tyson’s] prior conviction
     would likewise show he had been invited into the home of an
     acquaintance, knew the victim was in a compromised state, and
     had [nonconsensual] sex with the victim while the victim was
     unconscious. The prior conviction would tend to prove [Tyson] was
     previously in a very similar situation and suffered legal
     consequences from his decision to have what proved to be
     nonconsensual vaginal intercourse with an unconscious victim.
     Thus, the evidence would tend to show [Tyson] recognized or
     should have recognized that, as with [his prior victim], G.B.’s
     physical condition rendered her unable to consent. The jury must
     have a chance to decide if [Tyson], in light of his past legal
     experience and conviction for a substantially similar criminal
     episode, could have reasonably concluded G.B.’s consent was
     possible under comparable circumstances.

           … [C]ertain differences between the two incidents—such as
     the exact reason the victim was in a compromised state—are not
     essential to the question of whether [Tyson] mistakenly believed
     G.B. consented to sexual intercourse. The evidence of [Tyson’s]
     prior crime is highly probative of the fact that [Tyson] could not
     have reasonably believed G.B. was conscious enough to give her
     consent. Rather, the evidence of the prior conviction tends to


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        prove [Tyson] intentionally exploited another opportunity to take
        advantage of a woman sexually, when he knew the woman was in
        a diminished state. The prior crime at issue fits within the absence
        of mistake or accident exception to Rule 404. Given the
        established similarity between the incidents, we conclude
        [Tyson’s] prior conviction is highly probative on the issue of
        consent, but not so remote in time[3] or unduly prejudicial as to
        bar its admission under the absence of mistake or accident
        exception to Rule 404.

Tyson, 119 A.3d at 362-63 (citations omitted; emphasis in original).

        In weighing the probative value of this prior conviction with the

prejudicial effect of its admission, this Court opined as follows.

        [T]he probative value of [Tyson’s] prior conviction outweighs its
        potential for unfair prejudice. The prior conviction should not be
        shielded from the factfinder merely because it is harmful to
        [Tyson]; the question is whether evidence of [Tyson’s] prior
        conviction would be unduly prejudicial. The substantial similarity
        between the two incidents gives the evidence of [Tyson’s]
        previous crime considerable probative value. In light of the
        important similarities, the nature of [Tyson’s] prior crime alone
        does not render it unduly prejudicial. See Commonwealth v.
        Frank, [] 577 A.2d 609 ([Pa. Super.] 1990) (holding admission of
        evidence of [Frank’s] prior sexual assaults of children under
        common plan exception was not unduly prejudicial where assaults
        possessed high degree of similarity and court issued cautionary
        instructions). Moreover, to alleviate the potential for unfair
        prejudice, the court can issue a cautionary instruction to the jury,
        to advise the jury of the limited purpose of the evidence and to
        clarify that the jury cannot treat the prior crime as proof of
        [Tyson’s] bad character or criminal tendencies. Jurors are
        presumed to follow the trial court’s instructions.

Tyson, 119 A.3d at 361–62 (some citations omitted; emphasis in original).




3   Tyson’s convictions were five years apart.



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      We now analyze the facts in the instant matter.        First, as in Tyson,

Appellant’s conduct that led to his juvenile adjudication, specifically that he

acknowledges having had sex with B.B. but claims he did not hear her say no,

is relevant to prove similar circumstances in his rape of T.V. Appellant invited

both B.B. and T.V. to his home and into his bedroom. There is no question as

to his identity and both of his victims acknowledge intercourse occurred; the

contested fact is whether this intercourse was consensual. T.V. and B.B. both

claimed they said no. Appellant claimed that if they did, he did not hear them.

As in Tyson, the evidence of the prior adjudication “passes the basic relevance

threshold, as it tends to increase the probability that” Appellant knowingly had

non-consensual sex with T.V. in this case. 119 A.3d at 360. Similarly, we

agree that the absence of mistake exception applies in this case. As in Tyson,

“[g]iven the relevant similarities between the two incidents, evidence of”

Appellant’s prior adjudication “tend to prove he did not ‘mistakenly believe’”

that T.V. did not say no. 119 A.3d at 362.

      We now consider whether the trial court erred in concluding “the

probative value of the evidence outweighs its potential for prejudice.” Pa.R.E.

404(b)(3).     Appellant   argues   that      “the   Commonwealth’s   need   for

corroborating evidence here is clearly distinguishable from the prosecution’s

need for corroborating evidence [in other cases], where the complainant

either failed to [report promptly] the assault or there was simply a lack of

corroborating evidence.” Appellant’s Brief at 33-34.



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      In this case, there were text messages between Appellant and T.V.

corroborating both of their stories, namely that T.V. said no and that

Appellant claimed he did not hear her.         Thus, evidence that Appellant had

utilized this defense under similar circumstances is certainly probative.

Accordingly, we hold the trial court did not abuse its discretion.

      However, we still must consider whether its admission was “unduly

prejudicial.” Commonwealth v. Gordon, 673 A.2d 866, 870 (Pa. 1996)

(emphasis in original); Commonwealth v. Diehl, 140 A.3d 34, 41 (Pa.

Super. 2016)(“The admission of evidence becomes problematic only when its

prejudicial effect creates a danger that it will stir such passion in the jury as

to sweep them beyond a rational consideration of guilt or innocence of the

crime on trial.”).

      We recognize rape is a heinous crime that could and should inflame the

passions of a jury. However, the details of these crimes are not such that it

was an error of law or abuse of discretion for the trial court to believe a jury

would be unable to look past the details of the crime and to consider

Appellant’s prior adjudication only for the purpose for which it was permitted.

In fact, the trial court provided two specific cautionary instructions to the jury,

pointing out the limited purpose for which this evidence could be considered.

“[A] cautionary jury instruction may ameliorate the prejudicial effect of the

proffered evidence.” Commonwealth v. Hairston, 84 A.3d 657, 666 (Pa.

2014).   “Jurors are presumed to follow the trial court’s instructions.” Id.



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Accordingly, recognizing that evidence of this nature is always prejudicial,

based on the facts of this case, we conclude that it was not unduly prejudicial

here. Thus, the trial court did not abuse its discretion.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/2018




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