J. A25045/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellant         :
                                            :
                    v.                      :
                                            :
A.G.                                        :
                                            :
                          Appellee          :     No. 476 EDA 2015

                    Appeal from the Order February 17, 2015
             In the Court of Common Pleas of Northampton County
               Criminal Division No(s).: CP-48-CR-0002181-2014

BEFORE: DONOHUE, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 11, 2015

        The Commonwealth appeals from the order of the Northampton

County Court of Common Pleas precluding, on retrial, evidence of Appellee

A.G.’s prior bad acts.1 The Commonwealth claims the trial court misapplied

Pa.R.E. 404(b) by (1) discounting the similarities between the prior and

present allegations, (2) focusing on the passage of thirty years between the

prior and present allegations, and (3) finding undue prejudice outweighed

the probative value of the prior allegations. We affirm.



*
    Former Justice specially assigned to the Superior Court.
1
  The Commonwealth has taken this interlocutory appeal as of right based
on its certification that the trial court’s ruling will substantially handicap the
prosecution. See Pa.R.A.P. 311(d). We have amended the caption of this
appeal given the nature of the charges.
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        The trial court summarized the case against Appellee as follows:

               [Appellee] herein is charged with the crimes of criminal
           attempt to commit aggravated indecent assault,[2] indecent
           assault of a person less than 13 years of age,[3] and
           corruption of minors,[4] arising out of allegations that he
           sexually molested his granddaughter between 2001 and
           2007, when she was between the ages of four and 10.
           The complainant in this case, M.G. [(“Complainant”)],
           alleges: during those years, on innumerable occasions
           while she was visiting the home of [Appellee], when she
           would be alone with him for brief periods of time,
           [Appellee] would take her into his bedroom, have her lie
           down on his bed, and he would use his fingers to touch her
           vagina underneath her clothing.

Trial Ct. Op., 3/16/15, at 2.

        The charges against Appellee were filed on June 19, 2014.          On

November 20, 2014, the Commonwealth filed a notice and motion in limine

seeking admission of evidence that Appellee, approximately thirty years

earlier,5 abused his daughter, the Complainant’s aunt (“Aunt”), from “as far

back as she could remember,” until she was eleven. Commonwealth’s Mot.

in Limine to Introduce Prior Bad Acts, 11/20/14, at 2.        On December 9,


2
    18 Pa.C.S. §§ 901, 3125.
3
  18 Pa.C.S. § 3126(a)(7). Appellee was initially charged under subsections
(a)(1), (a)(7), and (a)(8) of the indecent assault statute, but the charges
under (a)(1) and (a)(8) were withdrawn with the consent of the trial court.
See Order, 1/20/15.
4
    18 Pa.C.S. § 6301(a)(1).
5
  Aunt was eleven years old between 1970 and 1971, when the prior abuse
allegedly ended.   The instant criminal complaint alleged the abuse of
Complainant began in 2001.



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2014, the trial court granted the Commonwealth’s motion, concluding the

proffer contained sufficiently similar allegations to establish a common

scheme, plan, or design. Order, 12/9/14, at 4-5; Trial Ct. Op. at 2.            The

court also found the proffer was relevant to show the history of the case,

because Complainant allegedly reported the abuse to her Aunt, after her

Aunt revealed her own history of abuse to Complainant. Order, 12/9/14, at

6; Trial Ct. Op. at 3; see also N.T. Mot. in Limine/Pre-Trial Conference,

12/5/14, at 6.

        A jury trial commenced on February 2, 2015, the relevant parts of

which we summarize for the purposes of this appeal.6 The Commonwealth,

in its opening statement, asserted Appellee assaulted Complainant at his

home, when Complainant was between four and ten years old. N.T. Trial,

2/2/15, at 21-22.        The Commonwealth suggested Complainant did not

initially disclose the abuse because Appellee threatened to kill her family and

she was afraid the disclosure would upset her father. Id. at 23. According

to the Commonwealth, Complainant initially reported being abused to her

mother, but gave a false account of the assault.         Id. at 24.       She later

reported being abused to Aunt. Id.

        Appellee,   in   his   opening    statement,    asserted   all     of   the

Commonwealth’s witnesses had motives to fabricate the allegations. Id. at

27.    Complainant’s parents were divorced and suggested Complainant had

6
    Complainant was seventeen years old at the time of the first trial.



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difficulties living with her mother during and after the divorce.    Id.   Aunt

wanted Appellee’s rental properties and became upset when he transferred

the properties to Complainant’s father in 2001. Id. 27-28. Complainant’s

father owed Appellee money for the rental properties and a loan for his

divorce totaling $1,100 per month.      Id. at 32. Complainant, he asserted,

was not credible.

        On the first day of trial, Complainant testified as follows. Her father

took her to Appellee’s home every two weeks to cut the grass. Id. at 39-40.

While her father went to the backyard to do the yardwork, Appellee would

take her back to his bedroom and put his hand on her vagina—sometimes

over, sometimes under her clothes. Id. at 43, 45. She indicated Appellee

did not touch any other part of her body or force her to touch his body. Id.

at 45. She did not know if he put his fingers inside her vagina. Id. at 46.

Sometimes, she heard the zipper of Appellee’s pants, but could not see what

he was doing with his other hand.      Id. at 46.   These assaults would stop

when Appellee could no longer hear the mower7 or when he was “done.” Id.

at 47. These assaults occurred regularly, but would not happen if Appellee’s

girlfriend was there.   Id. at 49.   Complainant stopped going to Appellee’s

house when she was ten. Id. at 48-49. She did not report the assaults to

her father because Appellee threatened to kill her family. Id. at 47.



7
    Father testified it took approximately twenty minutes to mow the backyard.



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      Complainant first disclosed the abuse to her mother when she was

twelve, but stated the abuse occurred in the bathroom, which she conceded

was untrue.8 Id. at 49-50. Later, when she was thirteen or fourteen years

old, she sent a text message to Aunt reporting Appellee abused her. 9 Id. at

51.   She testified she knew Aunt was abused by Appellee because she

overheard her parents discussing it. Id. at 54. Complainant then reported

the abuse to a schoolteacher and a guidance counselor, who, in turn,

8
  Complainant’s mother testified that Complainant initially disclosed being
abused, but did not tell anyone because she was scared “of them taking her
from me if I told somebody” and because she was going through a bitter
divorce from Complainant’s father. N.T. Trial, 2/2/15, at 107.
9
  A copy of Complainant’s text message to Aunt was marked as
Commonwealth’s Exhibit 1 and read by Complainant at trial:

        After everything that had happened to me at the [church]
        revival tonight, I figured I’d better tell you [Aunt] . . .
        When the man was saying how I need to let people in and
        stop building walls and let go of all my secrets and I didn’t
        need to be so strong all the time, I think I should tell you
        something that has been heavy on my heart for a long
        time. I’m sorry I’ve never told you, I haven’t told you
        sooner, but I think I may just be coming to terms with it,
        too, so I would really like if this stayed between us
        because as of right now, the only people that know are my
        mom, Trisha, and soon to be you.

        Okay. So when I was little, I was molested by [Appellee].
        I wanted to tell you in person but I never got the courage.
        He told me if I were to ever tell anyone, that he would kill
        my family and I believed him for years, but I’m not afraid
        of him anymore.       I’m not going to let it bother me
        anymore, but I thought you should know, considering it
        happened to you too. . . . .

Id. at 53-54.



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contacted Children and Youth Services. Id. at 55; N.T. Trial, 2/3/15, at 26.

She did not remember speaking with Aunt after sending her the text

message.10 N.T. Trial, 2/2/15, at 54.

      Aunt testified on the second day of trial.     She stated she warned

Complainant’s father not to take Complainant to Appellee’s house because

he was a “molester.” Id. at 90. She acknowledged receiving Complainant’s

text message and testified they subsequently talked about the abuse. Id. at

89.   Aunt told Complainant to seek counseling.          Id.    She testified

Complainant did not disclose the details of the abuse, but when she asked

whether Appellee penetrated her, the Complainant replied, “No.” Id.

      The Commonwealth then asked Aunt to describe Appellee’s abuse.

She testified the abuse occurred from when she was “five, six, maybe four”

years old and stopped when she was ten or eleven years old and began

sleeping with a knife under her pillow. Id. at 94. She would be in her bed

sleeping, and Appellee would be out drinking. Id. He would come into her

room, get in her bed, and call her by her mother’s name.       Id. at 95. He

fondled her chest and her vagina. Id. He would touch her, sometimes over

her clothes, and sometimes under her clothes.             Id. at 96.      The

Commonwealth asked, “Did he ever stick his finger in your vagina?”        Id.

Aunt responded, “Occasionally.” Id.

10
  The trial court issued a cautionary instruction on the use of prior bad acts
evidence immediately after the Commonwealth concluded its direct
examination of Complainant. N.T., Trial, 2/2/15, at 57-58.



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      Appellee’s counsel objected and requested a mistrial.              Id. at 97, 99.

The court granted mistrial, reasoning:

             As the case progressed since yesterday, it started out
          that there was some variation of the facts and that was
          that [Complainant] did not testify that [Aunt] had confided
          in her about what happened to her, but rather that
          [Complainant] had overheard her mother and her father
          having some discussion about what had happened to
          [Aunt] and although that wasn’t factually identical or
          similar to what had been proffered, I did not feel that it
          was a problem and I continued to allow that evidence to
          come in.

             [W]hen [Aunt] began to testify and she testified that
          [Appellee] also touched her breasts, I thought that that
          was slightly dissimilar, but not sufficiently so as to change
          my ruling. When [Aunt] testified that [Appellee] had, in
          fact, penetrated her vagina, that was not only sufficiently
          dissimilar, but it changed the entire weight of the
          probative versus prejudicial value of the testimony and its
          probative value was far outweighed by its potential for
          unfair prejudice.

Id. at 100-01. The court determined the Commonwealth would be “entitled

to ty this case again,” but that the Commonwealth’s prior bad acts motion

would have to be reevaluated before retrial. Id. at 102.

      After the declaration of mistrial, the Commonwealth filed a new motion

in limine to introduce prior bad acts on February 11, 2015. The motion was

substantially similar to its initial motion but incorporated the allegations of

vaginal   penetration   testified   to   by    Aunt   at   the   first    trial.   See

Commonwealth’s Mot. in Limine to Introduce Prior Bad Acts, 2/11/15, at 2.

Additionally, the Commonwealth asserted Appellee “threaten[ed] to kill

[Complainant’s] immediate family, if [Complainant] told about the abuse,”


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and also “threaten[ed] to kill [Aunt’s] mother, if [Aunt] told about the

abuse.”11 Id.

      The trial court held a conference on the motion on February 13,

2015.12   The court observed Complainant and Aunt’s trial testimony “were

more factually distinct” than presented in the Commonwealth’s initial proffer.

Id.     The court remarked it was “no longer convinced that they were

sufficiently factually similar,” but the trial evidence “tip[ped] the balance[,]

and the prejudicial impact outweighs the probative value.” Id. at 4-5.

      On February 17, 2015, the trial court entered a written order denying

the   Commonwealth’s      motion   in    limine.   The    following   day,   the

Commonwealth filed its notice of appeal, which contained a Pa.R.A.P. 311(d)

certification.   The Commonwealth subsequently complied with the court’s

order to submit a Pa.R.A.P. 1925(b) statement.13


11
   Although Aunt did not have an opportunity to testify regarding Appellee’s
threats at trial, it appears Aunt revealed the existence of the threats “last
Friday” before trial. N.T. Trial, 2/3/15, at 92.
12
   The transcript of the February 13, 2015 conference was not included in
the certified record. However, the Commonwealth included a complete copy
of the transcript in its reproduced record, and Appellee did not object to the
copy’s accuracy. Thus, we rely upon the copy in the reproduced brief. See
Commonwealth v. Brown, 52 A.3d 1139, 1145 n.4 (Pa. 2012).
13
   The Commonwealth’s Rule 1925(b) statement takes the form of a six page
brief that sets forth a factual background and citations to law related to its
“issue,” namely, “[t]he trial court erred when it entered an order denying
the Commonwealth’s Motion in Limine which sought to present Prior Bad
Acts of [Appellee], pursuant to Pa.R.E. 404(b).”    Commonwealth’s Concise
Statement of Matters Complained of on Appeal Pursuant to Pa.R.A.P. 1925,



                                        -8-
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      The Commonwealth’s sole contention is the trial court erred in

precluding the prior bad acts evidence in anticipation of a second trial. See

Commonwealth’s Brief at 4.     It first argues there are “unique similarities”

between Appellee’s abuse of Aunt and Complainant, including (1) the familial

relations among the parties, (2) the gender of the alleged victims, (3) the

location of the assaults–i.e., a bedroom, (4) the victims’ ages at the time of

the assaults, (5) the manner of the assaults, and (6) Appellee’s threats to

harm the victims’ families if they reported the abuse. Id. at 12-13 (citing,

inter alia, Commonwealth v. Newman, 598 A.2d 275 (Pa. 1991),

Commonwealth       v.   Aikens,   990    A.2d   1181   (Pa.   Super.     2010),

Commonwealth v. O’Brien, 836 A.2d 966 (Pa. Super. 2003), and

Commonwealth v. Smith, 635 A.2d 1086 (Pa. Super. 1993)).               It claims

the “[r]emoteness in time of the two crimes from each other does not bar

the admission of the prior bad acts . . . .” Id. at 14 (citing Commonwealth

v. Luktisch, 680 A.2d 877 (Pa. Super. 1996), and Commonwealth v.

Shively, 424 A.2d 1257 (Pa. 1981)). Lastly, it asserts the proffered prior




2/27/15, at 3 (unpaginated). We further note the Commonwealth framed its
legal discussion in terms of the substantial similarity between the incidents,
but did not address the court’s discretion in balancing the probative versus
prejudicial effects. See id. at 6; cf. Commonwealth’s Brief at 15 (arguing
Aunt’s “testimony is not unduly prejudicial”). However, the Commonwealth’s
issues were readily discernible under the circumstances, and all of its
present arguments were fairly subsumed within the claimed error.
Therefore, we decline to find waiver under Pa.R.A.P. 1925(b)(4)(vii).



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bad acts evidence is “more probative than prejudicial.” Id. at 16. No relief

is due.

      The Pennsylvania Supreme Court has summarized the principles

governing our review.

              Appellate courts typically examine a trial court’s
          decision concerning the admissibility of evidence for abuse
          of discretion. “An abuse of discretion may not be found
          merely because an appellate court might have reached a
          different conclusion, but requires a result of manifest
          unreasonableness, or partiality, prejudice, bias, or ill-will,
          or such lack of support so as to be clearly erroneous.”
          Typically, all relevant evidence, i.e., evidence which tends
          to make the existence or non-existence of a material fact
          more or less probable, is admissible, subject to the
          prejudice/probative value weighing which attends all
          decisions upon admissibility.

            A long-accepted exception to this general rule of
          admissibility, which is reflected in Rule 404(b)(1)[14] of the
          Pennsylvania Rules of Evidence, states that “[e]vidence of

14
   The current version of Pennsylvania Rule of Evidence 404(b), which
applies in this case, states, in relevant part:

             (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.

Pa.R.E. 404(b)(1), (2) (eff. Mar. 18, 2013).




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        other crimes, wrongs, or acts is not admissible to prove
        the character of a person in order to show action in
        conformity therewith.” Character evidence (whether good
        or bad) is, of course, relevant in criminal prosecutions;
        that is why an accused has the right to introduce evidence
        of good character for relevant character traits. Evidence of
        separate or unrelated “crimes, wrongs, or acts,” however,
        has long been deemed inadmissible as character evidence
        against a criminal defendant in this Commonwealth as a
        matter not of relevance, but of policy, i.e., because of a
        fear that such evidence is so powerful that the jury might
        misuse the evidence and convict based solely upon
        criminal propensity. Because the fear against which this
        exception to the general rule of relevance/admissibility is
        aimed concerns use of prior crimes to show bad
        character/propensity, a series of “exceptions to the
        exception” (to the rule of relevance) have been
        recognized. Thus, as Rule 404(b)(2) reflects, evidence of
        “other crimes, wrongs, or acts” may be admitted when
        relevant    for   a    purpose     other     than    criminal
        character/propensity,    including:    proof    of   motive,
        opportunity, intent, preparation, plan, knowledge, identity,
        or absence of mistake. This list is not exhaustive. For
        instance, this Court has recognized a res gestae exception
        to Rule 404(b) which allows admission of other crimes
        evidence when relevant to furnish the context or complete
        story of the events surrounding a crime.

Commonwealth v. Dillon, 925 A.2d 131, 136-37 (Pa. 2007) (citations and

emphasis omitted). Further,

           Finding that the evidence is relevant to the
        Commonwealth’s case-in-chief does not end the inquiry.
        In instances where evidence of other crimes, wrongs, or
        acts is offered for a purpose other than to show conformity
        of action, such evidence may still be excluded if the
        probative value of the evidence is outweighed by its
        potential for prejudice.      The probative value of the
        evidence might be outweighed by the danger of unfair
        prejudice, confusion of the issues, misleading the jury,
        undue delay, pointlessness of presentation, or unnecessary
        presentation of cumulative evidence. The comment to
        Pa.R.E. 403 instructs that: “‘Unfair prejudice’ means a


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         tendency to suggest decision on an improper basis or to
         divert the jury’s attention away from its duty of weighing
         the evidence impartially.” Additionally, when weighing the
         potential for prejudice, a trial court may consider how a
         cautionary jury instruction might ameliorate the prejudicial
         effect of the proffered evidence.

            Evidence will not be prohibited merely because it is
         harmful to the defendant. 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 and form part of
         the history and natural development of the events and
         offenses for which the defendant is charged.”

Id. at 141 (citations omitted).

      In Aikens, this Court reiterated that “remoteness is merely one factor

to be considered in determining admissibility” of a proffer of prior bad acts

evidence. Aikens, 990 A.2d at 1186. However, “‘while remoteness in time

is a factor to be considered in determining the probative value of other

crimes evidence under the theory of common scheme, plan or design, the

importance of the time period is inversely proportional to the similarity of

the crimes in question.’” Id. at 1185 (quoting Luktisch, 680 A.2d at 879).

      The Aikens Court concluded that evidence that the defendant sexually

assaulted one of his daughters seventeen years earlier was “markedly

similar” to the trial evidence that he assaulted another daughter.        Id.

Specifically, this Court noted both incidents involved the defendant’s

biological daughters when they were of a similar age—fifteen years old in the

prior instance and fourteen years old in the case at trial.   Id. at 1185-86.

Both assaults began when, in his daughters’ presence, the defendant


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watched pornography at his apartment.          Id. at 1186.       Both assaults

occurred in a bed at night. Id. In the prior instance, the defendant raped

his daughter.      Id. at 1183.   In the case at trial, he exposed his penis,

attempted to disrobe the complainant, and grinded himself against her

buttocks, before the complainant fled to another room.        Id.     As to the

greater offense of rape alleged in the prior incident, the Aikens Court noted,

“the victim herein was able to stop the abuse from escalating.”            Id.   at

1186.    Thus, we held that the evidence of the defendant’s prior bad acts

constituted evidence of a common plan and the probative value of the

evidence outweighed its prejudicial impact. Id.

        Instantly, we have reviewed the Commonwealth’s arguments and the

record as a whole. The Commonwealth emphasizes the similarities between

the alleged abuse of Aunt and Complainant. Our review confirms that the

trial court considered those similarities and determined the proffer was

relevant. However, the court found critical several differences between the

prior and instant allegations of abuse, namely, the time of day at which the

abuse occurred, the manner in which Appellee was alleged to have initiated

the abuse, and the extent of the alleged abuse. Trial Ct. Op. at 7-8.

        Contrary   to   the   Commonwealth’s   arguments,   the    trial   court’s

consideration of the differences between that the prior and present

allegations of abuse did not relate to trivial details, and the court did not

unduly rely upon the passage of thirty years between the prior and present



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allegations. Rather, the court appropriately considered factors distinguishing

the prior and present allegations to conclude the Commonwealth’s proffer of

a common plan, scheme, or design was less probative than the evidence

admitted in Aikens.       Trial Ct. Op. at 5-6. Moreover, the court was in a

unique position to weigh the relevance and undue prejudice of the

Commonwealth’s proffer, having presided at the first trial at which the

pertinent testimony was actually received.         Thus, we conclude the

Commonwealth’s arguments fail to establish an error of law or abuse of

discretion in the trial court’s application of Rule 404(b).   See Dillon, 925

A.2d at 136.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/11/2015




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