J-E04003-14

                                2015 PA Super 138

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellant             :
                                          :
            v.                            :
                                          :
JERMEEL OMAR TYSON,                       :
                                          :
                    Appellee              :   No. 1292 MDA 2013

                      Appeal from the Order June 18, 2013,
                      Court of Common Pleas, Berks County,
                 Criminal Division at No. CP-06-CR-0005578-2012

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., PANELLA,
        DONOHUE, SHOGAN, MUNDY, OLSON and OTT, JJ.

DISSENTING OPINION BY DONOHUE, J.:                    FILED JUNE 10, 2015

      Because I disagree with the learned Majority’s conclusion that the

circumstances surrounding Tyson’s prior rape conviction and the instant

matter are sufficiently similar to satisfy the common plan or scheme and

absence of mistake exceptions to Rule 404(b) of the Pennsylvania Rules of

Evidence, I respectfully dissent.      In my view, the Majority’s analysis

overemphasizes the few similarities that exist between Tyson’s prior rape

conviction and the present matter while completely dismissing the several

important differences between the two incidents.           The Majority also

incorrectly resolves the issues of remoteness and undue prejudice, with its

analysis on these points clearly influenced by its desire to find the evidence

of Tyson’s prior rape conviction admissible. I also believe that the Majority’s

analysis of the Commonwealth’s need to present the evidence of the prior
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rape conviction misconstrues existing case law to permit prior acts evidence

to bolster the credibility of the Commonwealth’s only witness where there is

no indication that the witness is otherwise impeachable.      Based on the

certified record on appeal, I would conclude that Tyson’s prior rape

conviction was not admissible under either the common plan or scheme or

the absence of mistake exceptions to Rule 404(b).

     As the Majority recognizes, Rule 404(b)(1) of the Pennsylvania Rules

of Evidence provides that “[e]vidence 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.”

Pa.R.E. 404(b)(1). Our Supreme Court has explained:

           The purpose of this rule 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 likely 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.   Spruill,   391   A.2d   1048,   1049-50   (Pa.   1978)

(quotations and citations omitted). Rule 404(b)(2) also provides that “[t]his

evidence may be admissible for another purpose, such as proving motive,

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

mistake, or lack of accident.” Pa.R.E. 404(b)(2). In a criminal matter, “this




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evidence is admissible only if the probative value of the evidence outweighs

its potential for unfair prejudice.” Id.

      Recently, our Supreme Court explained the common plan or scheme

exception as follows:

            Evidence of other crimes is said to be admissible [to]
            prove other like crimes by the accused 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.

Commonwealth v. Roney, 79 A.3d 595, 606 (Pa. 2013) (quotations and

citation omitted), cert. denied, 135 S. Ct. 56 (2014).

      Under the G.D.M., Sr. framework quoted by the Majority, see Maj.

Op. at 7-8, courts must examine the following: (1) whether the details and

surrounding circumstances of each criminal incident reveal criminal conduct

that is distinctive and so nearly identical that it represents the signature of

the same perpetrator; (2) if the criminal conduct represents the signature of

the same perpetrator, whether the common plan or scheme evidence is too

remote in time; and (3) if the common plan or scheme evidence represents

the signature of the same perpetrator and is not too remote in time, whether

the probative value of the evidence is outweighed by its potential prejudicial

impact.    See Commonwealth v. G.D.M., Sr., 926 A.2d 984, 987

(Pa. Super. 2007). My examination of the certified record in the case at bar




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reveals insufficient similarities between the two criminal incidents to permit

the admission of the evidence of the earlier conviction, as there is

inadequate evidence to conclude that the methods employed by Tyson were

“distinctive and so nearly identical as to become the signature of the same

perpetrator.” See id.

      The Majority relies on the following facts in concluding that this case

falls within the common plan or scheme exception to Rule 404(b):

            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
            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.

Maj. Op. at 11.

      In my opinion, the Majority strips the details of the facts from the

incidents in order to incorrectly conclude that these simplified likenesses

make Tyson’s prior rape conviction sufficiently similar to the instant matter,

warranting the admission of Tyson’s prior crime under the common plan or

scheme exception.     Further analysis of the two incidents reveals several

important dissimilarities. For example, the record reflects that the context in

which Tyson was in T.B.’s home and G.B.’s home was entirely different. For

his prior rape conviction, T.B.’s brother invited Tyson into their home for a

party. See N.T., 6/6/13, Exhibit C-1 at 3. Here, G.B. herself invited Tyson




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into her home because she was feeling ill.       Commonwealth’s Motion In

Limine to Introduce Evidence of Defendant’s Prior Crime (hereinafter

“Commonwealth’s Motion In Limine”), 5/31/13, ¶¶ 3-4.         G.B. also asked

Tyson to bring her food. Id. ¶ 4. Because G.B. and Tyson were friends with

each other, and because he stayed at her home late into the night, it

logically follows that some form of direct social interaction occurred between

the two throughout the evening.     This differs greatly from the absence of

social interaction that took place between Tyson and T.B. before the events

that led to Tyson’s prior rape conviction because he was at T.B.’s home

partying and drinking as a friend of T.B.’s brother along with several other

individuals. See N.T., 6/6/13, Exhibit C-1 at 3-4.

      The Majority relies heavily on the fact that during each event, Tyson

allegedly had sexual intercourse with T.B. and G.B. while each was sleeping.

See Maj. Op. at 11-12.      My review of the record, however, once again

reveals important differences.   For his prior rape conviction, there was no

dispute that T.B. was sleeping when Tyson began having sexual intercourse

with her. See N.T., 6/6/13, Exhibit C-1 at 3. For the instant crime, Tyson

disputes G.B.’s claims that she was sleeping when he began having sexual

intercourse with her.   See Commonwealth’s Motion In Limine, 5/31/13, ¶

10.   In fact, G.B. herself stated that the second time she awoke to find

Tyson having sexual intercourse with her, she asked him what he was doing




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and he responded: “What do you mean? Your eyes were open the whole

time.” Id.

      When examined closely, other similarities relied upon by the Majority

to support the admissibility of the prior conviction are likewise unremarkable

and not indicative of a signature crime. The Majority points out that Tyson

was previously acquainted with both T.B. and G.B. See Maj. Op. at 11. As

previously noted, the record reflects that the two relationships clearly

differed. Tyson was an acquaintance of T.B. because he was friends with her

brother, while Tyson and G.B. were friends with each other. Similarly, while

the Majority is correct that Tyson was in both T.B.’s home and G.B.’s home

into the early morning hours, see id., the reasons for this differ markedly,

as Tyson was at T.B.’s home for her brother’s party, but was an invited

guest in G.B.’s home because she invited him to be there.          See N.T.,

6/6/13, Exhibit C-1 at 3-4; Commonwealth’s Motion In Limine, 5/31/13, ¶¶

3-4. Additionally, I find it unremarkable that both events occurred in T.B.’s

and G.B.’s bedrooms – another similarity relied upon by the Majority. See

Maj. Op. at 11. This is not indicative of a signature crime because on both

occasions, the events at issue occurred when T.B. and G.B. were in bed,

making their bedrooms the obvious and expected location.        Furthermore,

that both T.B. and G.B. were in their twenties is likewise insignificant,

considering that Tyson was in his twenties and early thirties, respectively,

when each event occurred.      Contrary to the Majority’s opinion, there is



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nothing remarkable or remotely “signature” about an adult individual

spending time with and engaging in sexual intercourse with other adults

close in age.

      My esteemed colleagues dismiss these distinguishing characteristics

between Tyson’s prior rape conviction and the instant matter, stating that

“[t]o the extent differences exists [sic] between the two incidents, these

differences concern details that are not essential to the alleged common

scheme of [Tyson].”     Maj. Op. at 11-12 n.3.      Consequently, the Majority

found wholly inconsequential that Tyson was in T.B.’s and G.B.’s homes for

different reasons, contending that the common plan or scheme

            does not require the sexual assault of a women who
            became tired or weak specifically after donating
            plasma. The salient facts of each case are that
            [Tyson] was allowed into the home of an
            acquaintance, and [Tyson] knew each victim was in
            a compromised state.       After each victim lost
            consciousness in the early morning hours, [Tyson]
            had vaginal intercourse with each victim in
            essentially the same manner.

Id.

      In my opinion, the Majority’s limited analysis of the differences

between the two incidents completely misses the point of the common plan

or scheme exception. The Majority essentially contends that the differences

between Tyson’s prior rape conviction and the instant case do not matter.

These facts, however, are precisely the type of characteristics that, if similar,

would make the two incidents “distinctive and so nearly identical as to



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become the signature of the same perpetrator.” See G.D.M., Sr., 926 A.2d

at 987.

      As it stands, the Majority is willing to invoke the common plan or

scheme exception, not for the commission of “signature” crimes, as the

standard requires, but for the commission of crimes of the same general

class, namely a statutorily defined type of rape. Section 3121(a)(3) of the

Pennsylvania Crimes Code states that an individual commits the crime of

rape “when the person engages in sexual intercourse with a complainant …

[w]ho is unconscious or where the person knows that the complainant is

unaware that the sexual intercourse is occurring.”           18 Pa.C.S.A. §

3121(a)(3). According to what the Majority classifies as the “salient facts” of

the two incidents, the commission of section 3121(a)(3) rape is the sole

similarity between Tyson’s prior rape conviction and the alleged crime that

occurred in this case.   This Court has acknowledged that “[t]he essential

elements of the act of rape, as well as other sexual crimes, will necessarily

produce any number of similar characteristics when two acts of rape are

scrutinized for shared features[.]”   Commonwealth v. Frank, 577 A.2d

609, 614 (Pa. Super. 1990) (quotations and citation omitted).       Therefore,

under the Majority’s analysis, evidence is admissible as a common plan or

scheme simply because a person has allegedly committed the same crime

twice. This is in direct contravention to the general rule excluding evidence

of other crimes. See Pa.R.E. 404(b)(1); Spruill, 391 A.2d at 1049-50.



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      Furthermore, another notable and distinguishing factor between the

Tyson’s prior rape conviction and the current matter is the fact that G.B.

allegedly awoke to find Tyson engaging in unwanted sexual contact with her

only to soon thereafter fall back to sleep and have Tyson allegedly engage in

non-consensual sexual intercourse with her again.        Affidavit of Probable

Cause, 11/13/12.    According to the Commonwealth’s affidavit of probable

cause, G.B. indicated that after the first time she awoke to find Tyson having

sexual intercourse with her, she told him to stop, fell asleep again, and then

awoke to find Tyson naked in her kitchen. Id. After she allegedly told him

again that she did not want to have sex with him, she went back to sleep

and awoke once more to find Tyson having sexual intercourse with her. Id.

Similar events are totally absent from the incident that resulted in Tyson’s

prior rape conviction. See N.T., 6/6/13, Exhibit C-1 at 3.

      The Majority asserts that this distinguishing series of events “only

reinforces the conclusion that [Tyson] engaged in a common scheme of non-

consensual intercourse with unconscious victims” and that it tends to show

that Tyson “saw and seized yet another opportunity to have non-consensual

vaginal intercourse with a female acquaintance whose unconscious state

rendered her unable to consent or to resist verbally or physically.” Maj. Op.

at 12. While this may be true, this evidence also tends to show Tyson had

consent to engage in sexual contact with G.B., especially in light of his claim

that G.B. was awake during this encounter. Nevertheless, it is undisputed



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that this series of events is unlike anything that occurred during Tyson’s

prior rape, further distinguishing the two incidents.

      Therefore, in my view, while there are some similarities between

Tyson’s prior rape and this case, these similarities do not satisfy the

standard of being “distinctive and so nearly identical as to become the

signature of the same perpetrator.” See G.D.M., Sr., 926 A.2d at 987. To

the contrary, the similarities between the two incidents establish, at most,

the commission of crimes or conduct of the same class, namely sexual

assault.   See Roney, 79 A.3d at 606.         In this regard, neither incident

provides proof of any particular distinctive pattern of behavior, and

therefore, does not provide evidence of a “signature” crime. Accordingly, I

must conclude that the trial court did not err in finding that the facts

surrounding Tyson’s prior rape conviction and this case did not present a

common plan or scheme and properly excluded the evidence of his prior

conviction.

      Moreover, our Court has held that “‘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)

(quoting Commonwealth v. Luktisch, 680 A.2d 877, 879 (Pa. Super.

1996)). Thus, in my opinion, because of the dissimilarities inherent in the

two incidents, the ten-year gap (or even the five-year gap that the Majority

asks for us to contemplate) weighs heavily against the admission of Tyson’s



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prior rape conviction.   See Commonwealth v. Shively, 424 A.2d 1257,

1259 (Pa. 1981) (excluding evidence of a prior bad act that occurred only

seven months prior where the Court failed to “perceive enough similarity

between the two episodes to allow admission of the prior activity”).

      I further agree with the trial court’s finding that “if the conviction was

allowed[,] it would be so prejudicial and inflammatory as to outweigh its

evidentiary value.” Trial Court Opinion, 9/18/13, at 4. Our Court has long

held that “[t]he Commonwealth must prove beyond a reasonable doubt that

a defendant has committed the particular crime of which he is accused, and

it may not strip him of the presumption of innocence by proving that he has

committed other criminal acts.” Commonwealth v. Ross, 57 A.3d 85, 98-

99 (Pa. Super. 2012) (en banc), appeal denied, 72 A.3d 603 (Pa. 2013).

While I reach the conclusion that evidence of Tyson’s prior rape conviction is

not admissible under the common plan or scheme exception, I do so while

acknowledging that there are some similarities present between the two

incidents; namely, alleged non-consensual sexual intercourse with a sleeping

victim.   Therefore, given that similarity between the two incidents, it is

entirely possible that evidence of Tyson’s prior rape conviction could lead the

factfinder to believe that Tyson raped G.B. without regard to the facts of this

case, which are significantly dissimilar to the prior case.    Thus, the prior

conviction’s prejudicial impact on Tyson’s case far outweighs any probative

evidentiary value.



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      Although the learned Majority acknowledges the prejudicial nature of

the evidence, it nonetheless asserts that the trial court can avoid the

potential for unfair prejudice by offering a cautionary instruction “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.”   Maj. Op. at 14.      In other words, the Majority believes that

instructing the jury to ignore the very reason for which the Commonwealth

seeks to offer the evidence of Tyson’s prior rape conviction will prevent any

unfair prejudice. See id. This further supports the notion that the evidence

of Tyson’s prior rape conviction, in the manner in which the Commonwealth

seeks to introduce it, is unfairly prejudicial.

      The Majority also places undue emphasis on the Commonwealth’s need

to present evidence. See id. at 14-15. The Majority contends that because

identity is not an issue in this case, and the only issue is whether Tyson had

consent to engage in sexual contact with G.B., “[i]f evidence of [Tyson]’s

prior conviction is excluded, the Commonwealth must rely solely on the

uncorroborated testimony of G.B. to counter [Tyson]’s defense of consent to

vaginal intercourse.” Id. In my view, however, it is entirely possible that

G.B.’s testimony could cause a jury to find that she did not consent to

engage in sexual contact with Tyson. The most direct source of evidence of

whether G.B. consented to sexual contact with Tyson is G.B. More troubling

is that based on the Majority’s conclusion, in every case where the sole



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evidence is the testimony of the victim, the Commonwealth’s need to

present the prior bad acts evidence will trump the prohibition on the

presentation of such evidence.

      The Majority relies on Commonwealth v. Gordon, 673 A.2d 866 (Pa.

1996), in support of its argument that the Commonwealth has demonstrated

a need to present evidence of Tyson’s prior rape conviction. See Maj. Op. at

14-15.    In Gordon, our Supreme Court held that “[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.” Gordon, 673 A.2d at

870. The Supreme Court determined in that case that

            the Commonwealth was required to prove that a
            non-consensual touching occurred, the purpose of
            which was sexual gratification. [The defendant]
            denies that the touching occurred, and since the
            uncorroborated testimony of the alleged victim in
            this case might reasonably lead a jury to determine
            that there was a reasonable doubt as to whether
            Gordon committed the crime charged, it is fair to
            conclude that the other crimes evidence is necessary
            for the prosecution of the case.

Id.

      Gordon is clearly distinguishable from the instant matter.           Here,

Tyson readily admits that he had sexual contact with G.B. The only issue

that the parties dispute, as the Majority acknowledges, is whether Tyson had

consent to engage in such contact.       In Gordon, however, the defendant

denied that he ever touched the alleged victim at all.      Id.   Thus, because




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Tyson admits to engaging in sexual contact with G.B., and the only issue is

consent, the most direct source of whether Tyson had consent, as stated

above, is G.B. Thus, the Commonwealth’s need to present evidence here is

not akin to that in Gordon.

      This case is also distinguishable from other cases in which this Court

has found that the Commonwealth had demonstrated a need to present prior

bad   acts   evidence.    For   example,     this   Court   has   held   that   the

Commonwealth demonstrated a need to present evidence of a defendant’s

prior bad acts where the alleged victim in a sexual assault case failed to

promptly report the molestation.     Commonwealth v. Smith, 635 A.2d

1086, 1090 (Pa. Super. 1993); Commonwealth v. Frank, 577 A.2d 609,

618 (Pa. Super. 1990).        Our Court also found that the Commonwealth

demonstrated a need for prior bad acts evidence where the defendant had

the ability to attack the credibility of the victims.       Commonwealth v.

Luktisch, 680 A.2d 877, 879 (Pa. Super. 1996). Here, the record reflects

that G.B. promptly reported the alleged sexual assault, see Affidavit of

Probable Cause, 11/13/12, and there is no indication in the record that

Tyson will be able to attack G.B.’s credibility.       Accordingly, there is no

support for the Majority’s argument that the Commonwealth demonstrated a

need to present evidence of Tyson’s prior rape conviction.

      I also respectfully disagree with the Majority’s conclusion that Tyson’s

prior rape conviction is admissible pursuant to the absence of mistake



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exception to Rule 404(b). Because the application of the common plan or

scheme and absence of mistake exceptions are similar in nature, I rely on

my analysis of the common plan or scheme exception as applied in this case.

See Commonwealth v. Boczkowski, 846 A.2d 75, 86 (Pa. 2004) (stating

that courts may admit prior bad acts evidence under the “absence of

mistake or accident” exception where “the manner and circumstances” of

two crimes are “remarkably similar”).            Based on that analysis, I cannot

conclude that Tyson’s prior rape conviction is “remarkably similar” to the

instant matter.

      In its analysis of the applicability of the absence of mistake exception,

the Majority once again simply dismisses the differences between the two

incidents,   concluding   that   “the   exact     reason   the   victim   was   in   a

compromised state – [is] not essential to the question of whether [Tyson]

mistakenly believed G.B. consented to sexual intercourse.” Maj. Op. at 17

(emphasis in original).     Although the reason T.B. and G.B. were in a

compromised state is not probative of whether Tyson had consent to engage

in sexual contact with G.B., it is nonetheless important to the determination

of whether the two incidents were “remarkably similar.” See Boczkowski,

846 A.2d at 86.

      Notably, the Majority points to Tyson having been acquaintances with

both T.B. and G.B. and an invited guest in each of their homes as similarities

between the two incidents. See Maj. Op. at 16. These similarities between



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the two incidents are not probative of whether Tyson had consent to engage

in sexual contact with G.B., but the Majority nonetheless relies on them in

applying the absence of mistake exception.                  The Majority cannot rely on

those two similarities to argue that the absence of mistake exception applies

while dismissing the differences that exist between the two incidents as not

probative of the determination of consent. The Majority’s disregard for the

differences between the two incidents ignores the standard for admitting

prior bad acts evidence under the absence of mistake exception.

        Finally, I cannot emphasize enough that our standard of review

requires    a   finding    of   an     abuse    of   discretion   by   the   trial   court.

Commonwealth v. Flamer, 53 A.3d 82, 86 (Pa. Super. 2012).                            “[A]n

abuse of discretion may not be found merely because the appellate court

might    have    reached    a    different     conclusion[.]”      Commonwealth          v.

Williams,       91   A.3d       240,    248-49       (Pa.     Super.   2014)     (quoting

Commonwealth v. Garcia, 661 A.2d 1388, 1394–95 (Pa. Super. 2004)).

Here, the trial court heard argument on this matter and made a decision

that is supported by the evidence of record. The trial court found that the

evidence of Tyson’s prior rape conviction did not fit within the common plan

or absence of mistake exceptions to the rule precluding evidence of prior

crimes. Trial Court Opinion, 9/18/13, at 4.             Although there is one central

similarity alleged between Tyson’s prior rape conviction and the current

matter, i.e., a sleeping victim, I cannot conclude, based on my review of the



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certified record and pertinent case law, that the trial court abused its

discretion in refusing to focus solely on this similarity in making its decision.

      Based on the foregoing, I would conclude that the trial court did not

abuse its discretion by excluding the evidence of Tyson’s prior rape

conviction and would therefore affirm.

      Bender, P.J.E. and Ott, J. join this Dissenting Opinion.




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