J-S49037-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

TERRELL WAYNE SPINKS

                           Appellant                  No. 1945 WDA 2016


          Appeal from the Judgment of Sentence Entered July 19, 2016
               In the Court of Common Pleas of Crawford County
             Criminal Division at No(s): CP-20-CR-0000716-2014,
                            CP-20-CR-0001128-2014

BEFORE: DUBOW, SOLANO, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                   FILED SEPTEMBER 14, 2017

        Appellant, Terrell Wayne Spinks, appeals from his judgment of

sentence of forty-three to eighty-six years’ imprisonment for multiple sexual

offenses against six minor victims between 2011 and 2014.          Appellant

argues that the trial court abused its discretion by consolidating charges

from two separate informations for trial. We affirm.

        Appellant was charged with sexually abusing six minor victims, three

of whom were his stepdaughters (B.M.H., B.E.H. and M.M.H.) and three of

whom were friends of his stepdaughters (A.K., Z.B. and O.B.).

        In an information filed on August 21, 2014 at CR 716-2014, the

Commonwealth charged Appellant with eight counts of indecent assault,1


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3126.
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five counts of unlawful contact with a minor,2 five counts of corruption of

minors,3 five counts of endangering welfare of children,4 two counts of

terroristic threats,5 two counts of involuntary deviate sexual intercourse with

a child (“IDSI”),6 one count of criminal solicitation,7 one count of aggravated

indecent assault of a child,8 and one count of aggravated indecent assault,9

arising out of incidents that took place between 2012 and 2014.            The

information alleged crimes against all six victims.10

        In a second information filed on January 8, 2015 at CR 1128-2014, the

Commonwealth charged Appellant with one count of rape of a child, 11 four




2
    18 Pa.C.S. § 6318.
3
    18 Pa.C.S. § 6301.
4
    18 Pa.C.S. § 4304.
5
    18 Pa.C.S. § 2706.
6
    18 Pa.C.S. § 3123(b).
7
    18 Pa.C.S. § 902.
8
    18 Pa.C.S. § 3125(b).
9
    18 Pa.C.S. § 3125.
10
   M.M.H. had not come forward with her report of abuse at the time of the
first information. Nevertheless, the first information charged Appellant with
crimes against M.M.H. based on the reports of other victims.
11
     18 Pa.C.S. § 3121(c).




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counts of IDSI,12 two counts of criminal solicitation,13 one count of unlawful

contact with minor,14 one count of endangering welfare of children,15 one

count of corruption of minors, four counts of indecent assault, 16 and one

count of indecent exposure17 arising out of incidents that took place between

2011 and 2014. The charges in this information only involved M.M.H., who

initially was unwilling to report Appellant’s conduct but came forward with

her own report of additional crimes after Appellant was incarcerated on the

first information.

        Appellant filed a pretrial motion to sever the charges into six trials,

one for each complainant, and to limit the evidence in each trial to that

complainant.     The Commonwealth responded that the trial court should

consolidate all charges in both informations into one trial.

        During a hearing on Appellant’s motion to sever, the Commonwealth

asserted that it would present the following evidence.

        Nine year old B.M.H., the youngest of the three stepdaughters, would

testify that on one occasion, she observed Appellant on top of B.E.H. in the

12
     18 Pa.C.S. § 3123(b).
13
     18 Pa.C.S. § 902.
14
     18 Pa.C.S. § 6318.
15
     18 Pa.C.S. § 4304.
16
     18 Pa.C.S. § 3126.
17
     18 Pa.C.S. § 3127.



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bedroom of their residence, “humping [her].” N.T., Hr’g On Mot. To Sever,

6/10/15, at 9.    B.M.H. would also testify that (1) she observed sexual

activity between Appellant and the other victims; and (2) Appellant touched

B.M.H.’s vagina with his hands, put his penis into her buttocks and mouth,

and put his mouth on her private parts. Id. at 9-10.

     Thirteen year old M.M.H., the oldest stepdaughter, would testify that

Appellant put his penis in her anus and genitals, put his hands on her

genitals, put his mouth on her genitals, and put his penis in her mouth. Id.

at 10.   M.M.H. would also testify that Appellant made the stepdaughters

watch pornographic movies and watch him and his wife have sex so that

they would learn about sex. Id.

     Eleven year old B.E.H., the middle stepdaughter, and the girl who

suffered the most abuse, would testify that Appellant put his penis in her

buttocks, put his penis in her genitals, and put his mouth and hands on her

genitals. Id. at 10-11.

     All three   stepdaughters      would testify that they saw      Appellant

ejaculate. Id. at 11.

     Ten year old A.K., a friend of the stepdaughters, would testify that she

was at Appellant’s residence on three occasions, including one weekend

when she slept over.      Id.   During this visit, Appellant touched her in the

shower on her genital and breast areas. He also exposed his penis to A.K. in

the bedroom and attempted to engage in sexual intercourse with her, but



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the stepdaughters stopped it. Id. He was intoxicated on these occasions.

Id.

      Ten year old Z.B. and eleven year old O.B., two other friends of the

stepdaughters, would testify that on one occasion, they were at Appellant’s

residence with the stepdaughters, and in the Commonwealth’s words,

         he was exposing himself.          He had these bikini-type
         underwear on and made certain statements to the effect
         that, let’s get this party started while I still have my pants
         on. He was touching all of the girls in inappropriate
         places. While this was going on, the girls were scared. So
         this was [O.B., Z.B.] and the three [sisters] . . . M.M.H.
         call[ed A.S., the stepdaughters’ mother, who was at a
         friend’s house,] claiming that [Appellant] was touching
         them inappropriately, raising hell.       [A.S. came] home
         [and] confront[ed] the girls. She [made] the girls go and
         tell [Appellant] what they were accusing him of, touching
         them inappropriately. She [made] them continue to be
         present with them. He continue[d] to be . . . loud. The
         girls [were] scared. At that point, the girls [were] afraid to
         say anything because [Appellant was] right there. [A.S.
         didn’t] do anything to separate the girls from him. She
         [didn’t] phone any parents and they continue[d] to stay
         the night.

Id. at 12-13.

      Appellant told the three stepdaughters not to report his conduct and

threatened to kill them if they did. Id. at 14. Finally, B.E.H. told her natural

father about Appellant’s conduct. Id. B.M.H. and M.M.H. were present, but

M.M.H. was too frightened to talk about it. Id. The father notified CYS, and

the police interviewed all six victims.    Id.   M.M.H. was still too afraid to

report any incident, but on a later date, she reported Appellant’s conduct to




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her father.   Id. at 14-15.      The police then interviewed her, and the

Commonwealth filed a second information against Appellant. Id. at 15.

      The Commonwealth contended that the victims’ cases should be joined

for trial because the evidence showed Appellant’s motive and a common

scheme, namely a pattern of anal, genital and oral intercourse with the three

stepdaughters, as well as improper touching with his hands.         Id.    The

Commonwealth further argued that the cases should be joined because

Appellant claimed that he simply tickled O.B. while intoxicated, but the

testimony of all six victims would demonstrate absence of mistake.         Id.

Lastly, the Commonwealth stressed that the jury would be able to separate

each victim’s account from the others, because they could take notes

concerning each girl’s testimony, and “if [the jury had] any issues with what

girls testified [as] to what body parts touched what body parts, they [could]

simply ask for reclarification of the testimony.” Id. at 16.

      At the conclusion of the hearing, the trial court denied the motion to

sever and consolidated the two informations for trial.     Id. at 24-29.   The

court reasoned that (1) all of the incidents involved prepubescent or early

adolescent girls; (2) the offenses against each victim were linked, because

five victims were present during one of the encounters with Appellant; (3)

the incidents were relatively close in time; (4) the evidence was admissible

under Pa.R.E. 404(b) to demonstrate Appellant’s motive to assault youthful

girls and his absence of mistake; (5) the probative value of the evidence



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outweighed any prejudice to Appellant; and (6) the evidence was not

complicated enough to render the jury incapable of separating the offenses

against each victim. Id.

      Each of the six victims testified during the three-day trial in November

2015. Their testimony was consistent with the Commonwealth’s forecast of

their testimony during the hearing on Appellant’s motion to sever. The jury

convicted Appellant on all counts at CR 716-2014 except for two counts of

indecent assault, one count of unlawful contact with a minor, one count of

corruption of minors and one count of terroristic threats. The jury convicted

Appellant on all counts at CR 1128-2014.

      Appellant filed timely post-sentence motions, which the trial court

denied, and a timely notice of appeal.     Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

      Appellant raises one issue in this appeal:

         Whether the trial court erred in denying Appellant’s motion
         to sever the two cases for trial pursuant to Pennsylvania
         Rule of Criminal Procedure [] 583?

Appellant’s Brief at 3. On its face, this question appears to be different than

the issue raised in Appellant’s pretrial motion to sever.      In his pretrial

motion, Appellant requested six trials, one per victim; the above question

appears to claim that Appellant should have received two trials, one per

information.   Nevertheless, read generously, the body of Appellant’s brief

appears to take the position that he should have received six trials, one per



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victim, the same issue that Appellant raised in his pretrial motion.

Therefore, we will not find that Appellant waived his lone argument on

appeal.

     “Whether [] separate indictments should be consolidated for trial is

within the sole discretion of the trial court and such discretion will be

reversed only for a manifest abuse of discretion or prejudice and clear

injustice to the defendant.” Commonwealth v. Robinson, 864 A.2d 460,

481 (Pa. 2004) (citations and quotation marks omitted).       “Appellant bears

the burden of establishing such prejudice.” Commonwealth v. Melendez–

Rodriguez, 856 A.2d 1278, 1282 (Pa. Super. 2004) (en banc) (citation

omitted).

     The Pennsylvania Rules of Criminal Procedure govern the joinder and

severance of offenses as follows:

          Rule 582. Joinder—Trial of Separate Indictments or
          Informations

          (A)     Standards

          (1)   Offenses charged in separate indictments           or
                informations may be tried together if:

                (a)   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; or

                (b)   the offenses charged are based on the same
                      act or transaction.

Pa.R.Crim.P. 582(A)(1).



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         Rule 583. Severance of Offenses or Defendants

         The court may order separate trials of offenses or
         defendants, or provide other appropriate relief, if it
         appears that any party may be prejudiced by offenses or
         defendants being tried together.

Pa.R.Crim.P. 583.

      Under Rule 583, the prejudice the defendant suffers due to the joinder

must be greater than the prejudice he suffers when the Commonwealth’s

evidence links him to a crime.     See Commonwealth v. Lauro, 819 A.2d

100, 107 (Pa. Super. 2003).

         [T]he “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 occur if the evidence tended to
         convict [the] 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.

Id. (citation omitted).     Moreover, “the admission of relevant evidence

connecting a defendant to the crimes charged is a natural consequence of a

criminal trial, and it is not grounds for severance by itself.” Id. (citation and

quotation marks omitted).

      Reading these rules together, our Supreme Court established the

following test for severance matters:

         Where the defendant moves to sever offenses not based
         on the same act or transaction that have been


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         consolidated in a single indictment or information, or
         opposes joinder of separate indictments or informations,
         the court must therefore determine: [1] whether the
         evidence of each of the offenses would be admissible in a
         separate trial for the other; [2] 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, [3] whether the defendant will be unduly
         prejudiced by the consolidation of offenses.

Commonwealth v. Collins, 703 A.2d 418, 422 (Pa. 1997) (citation

omitted).

      Pursuant to this test, we must first determine whether the trial court

abused its discretion in holding that evidence of each of the offenses would

be admissible in a separate trial for the other. In making this determination,

we are mindful that “[e]vidence of crimes other than the one in question is

not admissible solely to show the defendant’s bad character or propensity to

commit crime.” Id. (citations omitted); see Pa.R.E. 404(b)(1) (“[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”).     Nevertheless, “[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 order for evidence of prior bad acts to be

admissible as evidence of motive, the prior bad acts ‘must give sufficient

ground to believe that the crime currently being considered grew out of or

was in any way caused by the prior set of facts and circumstances.’”



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Melendez–Rodriguez, 856 A.2d at 1283 (citation and quotation marks

omitted).   “Additionally, evidence of other crimes may be admitted where

such evidence is part of the history of the case and forms part of the natural

development of the facts.” Lauro, 819 A.2d at 107 (citation omitted).

      For several reasons, the trial court acted within its discretion by

denying Appellant’s motion to sever. First, the evidence of acts against one

victim would be admissible in a separate trial for acts against another victim

to prove a common scheme.       See Commonwealth v. Aikens, 990 A.2d

1181 (Pa. Super. 2010); Commonwealth v. O'Brien, 836 A.2d 966 (Pa.

Super. 2003); Commonwealth v. Luktisch, 680 A.2d 877 (Pa. Super.

1996).

      Aikens 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, because

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

Aikens, 990 A.2d at 1185–86. The victims were almost the same age at

the time of the abuse; V.B was 14 and T.S. was 15. Id. at 1182–83, 1186.

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 he mimicked sexual intercourse to

gratify   himself.   Id. at 1186.      We    found   that   “[t]hese   matching




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characteristics elevate the incidents into a unique pattern that distinguishes

them from a typical or routine child-abuse factual pattern.” Id.

      O’Brien held that the trial court erred in refusing to admit prior

convictions of sexual abuse under the common scheme exception. O’Brien,

836 A.2d at 972.     Both incidents involved boys of the same age, and the

defendant was a family friend of both victims.          Id. at 968-69.    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. Id. at

971-72.

      Finally, in   Luktisch, the    defendant was convicted       of sexually

molesting his stepdaughter, D.G.. Luktisch, 680 A.2d at 878. We held that

the defendant’s acts toward two other victims, C.G. and T.L., were

sufficiently similar to constitute a common scheme:

          The acts committed upon [D.G.], [C.G.], and [T.L.] were
          strikingly similar. The three victims were near the same
          age when [Luktisch] molested them; they all had the
          relationship of daughter or step-daughter to [Luktisch]; all
          three were living with [Luktisch] when the acts occurred;
          and the nature of the acts were almost identical. The
          progression of the acts performed on each victim was
          similar; improper touching first, then oral sex, then sexual
          intercourse. It is true that [D.G.] only made passing
          references to acts performed upon her by the [Luktisch]
          other than the singular act of sexual intercourse for which
          the [Luktisch] was charged and convicted, but [C.G.] and
          [T.L.] gave descriptions of how [Luktisch’s] molesting
          them had progressed. Certainly what [D.G.] did describe


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           fits squarely into the overall common scheme and course
           of conduct as it progressed from [T.L.], to [C.G.], to
           [D.G.].

Id. at 879 (citation omitted).

      Here, the three stepdaughters whom Appellant assaulted were all

prepubescent when the encounters began and were close in age to one

another.    With each stepdaughter, Appellant engaged in anal and vaginal

intercourse, put his penis in her mouth, put his mouth on her vagina, and

groped her with his hands.       All sexual acts with each stepdaughter took

place in Appellant’s residence. He made each of them watch pornographic

films and watch him have sexual intercourse with their mother.           Each

stepdaughter saw Appellant ejaculate. Appellant told each stepdaughter not

to report his conduct and threatened to kill them if they did. All events took

place between 2011 and 2014, close in time to the three-day trial in

November 2015. The evidence in this case is similar to the evidence that we

found sufficient to prove a common scheme in Aikens, O’Brien and

Luktisch.

      In addition, consolidation of the charges was necessary to prove

Appellant’s intent18 and lack of mistake.     For example, according to the

Commonwealth, Appellant claimed that he merely tickled O.B. while


18
  Although this reason is different from those given by the trial court, we
may affirm for reasons other than those given by the trial court. See
Commonwealth v. Judge, 916 A.2d 511, 517 n.11 (Pa. 2007) (“[T]his
Court may affirm on any ground”).



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intoxicated, and that she misinterpreted his acts as sexual advances. The

other victims’ testimony about Appellant’s sexual assaults was admissible to

demonstrate that Appellant’s actual intent was not to engage in horseplay

with O.B., but to have sexual contact with her.     Cf. Commonwealth v.

Sherwood, 982 A.2d 483, 497 (Pa. 2009) (evidence of defendant’s prior

physical assaults of four-year-old victim was admissible to show intent in

prosecution for first-degree murder; defendant claimed at trial that he did

not intend to kill the victim and he loved the victim, and the prior bad acts

evidence refuted defendant’s assertions by demonstrating his actual intent).

     Finally, consolidation was proper under the res gestae exception,

which permits admission of evidence of other crimes or bad acts to tell “the

complete story.”   See Commonwealth v. Williams, 896 A.2d 523, 539

(Pa. 2006). In this case, more than once, the victims were eyewitnesses to

Appellant’s acts against other victims or other important events.     B.M.H.

observed Appellant on top of B.E.H. engaging in sexual intercourse, and

B.M.H. also observed Appellant having sexual contact with other victims.

Appellant made all three stepdaughters watch pornographic movies and

watch him and his wife have sex so that they would learn about sex. Five of

the six victims were present one night when Appellant was touching them

inappropriately while clad in bikini underwear.    The three stepdaughters

were together with their natural father when B.E.H. reported Appellant’s

conduct.   Since the victims’ testimony was interconnected, and since each



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victim’s testimony corroborated other victims’ accounts, it was necessary for

all victims to testify before a single jury in order to present a complete

picture of Appellant’s conduct.

      The trial court properly concluded that consolidation of the charges

would not prejudice Appellant by causing the jury to lose track of which

crimes Appellant committed against which victim.         The Commonwealth

correctly observed that the jury could take notes of each victim’s testimony

and ask for testimony to be read back to them for purposes of clarification.

The fact that the jury acquitted Appellant of five charges—two counts of

indecent assault, one count of unlawful contact with a minor, one count of

corruption of minors and one count of terroristic threats—demonstrates that

the evidence did not confuse the jury.       The jury carefully reviewed each

charge and distinguished between charges the Commonwealth proved

versus charges that the Commonwealth failed to prove.

      Thus, as we reasoned in Commonwealth v. Ferguson, 107 A.3d 206

(Pa. Super. 2015):

         [a]ppellant was not unduly prejudiced by the trial court's
         decision to allow the jury to hear evidence of the separate,
         yet interrelated, crimes . . . . As was said in
         [Commonwealth v.] Lark, 543 A.2d [491], 500 [(Pa.
         1988)], “[This was a] series of crimes committed by the
         [appellant] which were all related. He created the
         sequence of events and cannot fairly now demand that the
         . . . matters be severed and tried in separate trials.”

Id., 107 A.3d at 212.

      Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/14/2017




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