J-S42033-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                      :     IN THE SUPERIOR COURT OF
    PENNSYLVANIA,                        :          PENNSYLVANIA
                                         :
                     Appellee            :
                                         :
                v.                       :
                                         :
    LEWIS MARTIN MARTIN,                 :
                                         :
                     Appellant           :    No. 20 MDA 2018

          Appeal from the Judgment of Sentence December 1, 2017
             in the Court of Common Pleas of Lancaster County
            Criminal Division at No(s): CP-36-CR-0005151-2016

BEFORE:      BOWES, J., MCLAUGHLIN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:              FILED: OCTOBER 17, 2018

        Lewis Martin Martin (Appellant) appeals from the judgment of sentence

entered on December 1, 2017, following his jury convictions for indecent

exposure and corruption of minors. Upon review, we affirm.

        The relevant facts and procedural history have been summarized by

the trial court.

        On September 23, 2016, a criminal complaint was filed charging
        [Appellant] with indecent exposure and corruption of minors.
        The basis for the charges was an allegation that [Appellant]
        exposed his penis to the victim, L.M.[, born April 2006], in June
        2015 in East Cocalico Township, Lancaster County. A preliminary
        hearing was held on October 5, 2016, at which time the charges
        were waived over to the Court of Common Pleas.

              On July 19, 2017, the Commonwealth filed a petition to
        admit testimony under the “tender years hearsay exception,” 42
        Pa.C.S.[] § 5985.1.      The victim, L.M., was interviewed by
        Christina Vernerick, a forensic interviewer at the Lancaster
        County Children’s Alliance.2     This interview was videotaped.
        During this interview, L.M. disclosed that [Appellant] exposed his

*   Retired Senior Judge assigned to the Superior Court.
J-S42033-18


       penis to him. A “tender years” hearing was scheduled for the
       time of trial.3
             __________
             2 Lancaster County Children’s Alliance is a child

             advocacy center where investigations of child abuse
             are conducted through forensic interviews of children
             who have been referred either by the Children &
             Youth Agency or a law enforcement agency. The aim
             is to minimize the number of interviews a child must
             endure surrounding allegations of child abuse.

              3 The “tender years” hearing never took place as the
              Commonwealth chose not to have the minor victim
              testify at trial, nor to introduce the victim’s interview
              with Children’s Alliance.

             On July 20, 2017, the Commonwealth gave notice of its
       intent to introduce evidence of prior bad acts pursuant to Pa.R.E.
       404(b)([3]). The older brothers and sisters of L.M. disclosed
       that when they were around the same age as the victim,
       [Appellant] exposed his penis to them as well.4 These actions
       resulted in [Appellant] being charged at Docket No. [CP-36-CR-
       000]0432-2010 with indecent exposure and corruption of
       minors. [Appellant] pleaded guilty to the charges in January
       2011, and was sentenced to time-served to 23 months’
       incarceration, followed by three years’ probation. [Appellant]
       was subsequently charged with a probation violation and
       sentenced on December 30, 2011, to time–served to 23 months’
       incarceration, with a consecutive one-year probation term.
       [Appellant] was ultimately released from probation on October
       10, 2014.       [One of t]he incident[s] with L.M. occurred
       approximately two weeks after [Appellant] was released from
       probation for exposing himself to L.M.’s older siblings.[1] The
       Commonwealth intended to introduce evidence of Appellant’s
       prior bad acts against his other nieces and nephews to show the
       common scheme and plan, opportunity, knowledge, and absence
       of mistake. See Pa.R.E. 404(b)(2).
____________________________________________


1 The record indicates that Appellant was initially also charged with exposing
himself to L.M. in October 2014, but the criminal information was amended
to limit the charge to only the June 2015 incident. N.T., 8/30/2017, at 11-
13.



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          __________
          4 Specifically, J.M. [born September 2001] disclosed

          that when she was around the ages of six to nine,
          [Appellant] exposed his penis to her multiple times
          in the barn and shed, and would touch his penis.
          R.M. [born May 1999] disclosed that when she was
          nine years old and younger, [Appellant] would
          expose his penis to her in the barn and would touch
          his penis. C.M. [born December 1996] disclosed that
          when she was between the ages of six and eight,
          [Appellant] would expose his penis to her in the barn
          and would touch his penis. M.M. [born September
          1992] disclosed that when he was ten years old and
          younger, [Appellant] exposed his penis to him on
          multiple occasions.

           This case went to trial on August 30, 2017. Immediately
     prior to trial, [the trial court] heard argument on the prior bad
     acts request by the Commonwealth. [The trial court] ruled at
     that time that M.M., the minor victim’s older brother, would be
     permitted to testify to the fact that Appellant repeatedly exposed
     himself to his nephew, M.M., when he was just a child. This
     evidence would be admissible to show an absence of mistake
     and intent.      [The trial court] further ruled that should the
     defense argue that Appellant did not know that his actions would
     affront or alarm or tend to corrupt the minor victim, then the
     door would be open to the Commonwealth’s introduction of
     Appellant’s prior convictions for indecent exposure and
     corruption of minors. Defense counsel objected to the admission
     of such prior bad acts testimony.

           At trial, the Commonwealth presented the testimony of
     M.M., Detective Keith Neff of the East Cocalico Township Police
     Department, and portions of the audio[-]recorded statement of
     Appellant’s police interview. M.M. testified to the fact that he
     walked in on Appellant exposing his penis to L.M. He further
     stated that he immediately told his mother about the incident.
     M.M. also testified that when he was between the ages of 5 and
     10 years old, Appellant exposed himself “maybe 20 times” and
     spoke to M.M. in a sexual manner.




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               Detective Neff testified that, after signing the Miranda[2]
        warnings form, Appellant agreed to an interview. Portions of
        Appellant’s audio[-]recorded statement were played for the jury.
        Appellant acknowledged in his police interview that M.M. is a
        truthful person. Appellant would neither admit nor deny the
        charged criminal activity because he said he had no memory or
        recollection of the alleged events.

              The defense presented no testimony or evidence.
        Following deliberations, the jury returned a verdict of guilty on
        both charges. Following the verdict, sentencing was deferred
        pending a pre-sentence investigation.

              On December 1, 2017, [Appellant] appeared for
        sentencing. [The trial court] imposed concurrent sentences of 9
        to 23 months’ incarceration followed by three years’ probation
        for the indecent exposure and corruption of minors convictions.
        As Appellant had already been in prison for over nine months
        awaiting trial, Appellant was made immediately eligible for
        parole for admission to an inpatient treatment program that
        would address his psychiatric, psychological or behavioral issues
        related to these charges. Restitution in the amount of $1,000.00
        was imposed.5 [Appellant] was ineligible for a Recidivism Risk
        Reduction Incentive (RRRI) sentence, and his ineligibility was not
        waived by the Commonwealth.
              __________
              5   [Appellant] was ordered to reimburse the
              Pennsylvania Department of Revenue $1[,]000.00
              for the forensic examination of the minor victim, L.M.

Trial Court Opinion (TCO), 2/1/2018, at 1-5 (citations to the record

omitted).




____________________________________________


2   Miranda v. Arizona, 384 U.S. 436 (1966).




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J-S42033-18


       Appellant timely filed a notice of appeal,3 and both Appellant and the

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

       On appeal, Appellant argues that “the trial court erred in allowing M.M.

to testify that [Appellant] had exposed himself to M.M. several years prior in

violation of Pa.[R.E.] 404(b) where this testimony was not relevant to a

legitimate purpose and any probative value it may have had was outweighed

by the unfair prejudice to [Appellant].” 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)

(citations and quotation marks omitted).

       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.”
____________________________________________


3 Appellant had 30 days from entry of the trial court’s sentencing order on
December 1, 2107 to file his notice of appeal, but the last day of his appeal
period fell on a Sunday (December 31, 2017) and the following day was a
holiday (January 1, 2018). Thus, Appellant timely filed his notice of appeal
on January 2, 2018. See 1 Pa.C.S. § 1908 (“Whenever the last day of any
such period shall fall on Saturday or Sunday…, such day shall be omitted
from the computation.”).



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      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 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); see also Commonwealth v. Dillon, 925 A.2d 131, 141

(Pa. 2007).

      Our     rules   provide   further   direction   when the   evidence   relates

specifically to other crimes, wrongs, or acts.

      (b) Other crimes, wrongs, or acts.

              (1) Prohibited Uses. Evidence of a crime, wrong, or other
              act is not permissible to prove a person’s character in
              order to show that on a particular occasion the person
              acted in accordance with the character.



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            (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). In addition,

      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”). Jurors are presumed

to follow the trial court’s instructions.    Commonwealth v. Hairston, 84

A.3d 657, 666 (Pa. 2014).

      Appellant argues that “[t]he fact that this happened to M.M. years

prior was not relevant to the instant case and whether or not [Appellant]

had exposed himself to L.M.” Appellant’s Brief at 12. He further argues that

the evidence was “simply used to impress upon the jury that [Appellant] had

acted in this manner before, so he must have acted this way again” and

“just because [Appellant] exposed his penis to M.M. years prior does not

mean he intended to show it to L.M. on this occasion.”            Id.   Finally,



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J-S42033-18


Appellant contends that even if the evidence were admissible, it was unfairly

prejudicial. Id. at 13.

       Pursuant to Pa.R.E. 404(b)(2), the trial court admitted Appellant’s

prior other acts against M.M. “to show intent and lack of mistake or

accident.”    TCO, 2/1/2018, at 7-8, citing N.T., 8/30/2017, at 49-50.    The

trial court further found that the evidence was admissible as “the crimes are

so related that proof of one tends to prove the others.”4 Id. at 8 (citation

and quotation marks omitted). Finally, the trial court held that the probative

value of the evidence outweighed its prejudicial effect. Id. at 9.

       With respect to the common plan and lack of mistake or accident

exceptions, which are interrelated, this Court has explained that

              [w]hen ruling upon the admissibility of evidence
              under the common plan exception, the trial court
              must first examine the details and surrounding
              circumstances of each criminal incident to assure
              that the evidence reveals criminal conduct which is
              distinctive and so nearly identical as to become the
              signature of the same perpetrator. Relevant to such
              a finding will be the habits or patterns of action or
              conduct undertaken by the perpetrator to commit
              crime, as well as the time, place, and types of
              victims typically chosen by the perpetrator. Given
              this initial determination, the court is bound to
              engage in a careful balancing test to assure that the
              common plan evidence is not too remote in time to
              be probative. If the evidence reveals that the details
              of each criminal incident are nearly identical, the fact
____________________________________________


4 This language is consistent with the “common plan” exception, discussed
infra. See Commonwealth v. Tyson, 119 A.3d 353 (Pa. Super. 2015) (en
banc).



                                           -8-
J-S42033-18


          that the incidents are separated by a lapse of time
          will not likely prevent the offer of the evidence
          unless the time lapse is excessive. Finally, the trial
          court must assure that the probative value of the
          evidence is not outweighed by its potential
          prejudicial impact upon the trier of fact. To do so,
          the court must balance the potential prejudicial
          impact of the evidence with such factors as the
          degree of similarity established between the
          incidents of criminal conduct, the Commonwealth’s
          need to present evidence under the common plan
          exception, and the ability of the trial court to caution
          the jury concerning the proper use of such evidence
          by them in their deliberations.

     Commonwealth v. G.D.M., Sr., 926 A.2d 984, 987 (Pa. Super.
     2007).

           Although “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.”     Commonwealth v.
     Aikens, 990 A.2d 1181, 1185 (Pa. Super. 2010) [] (holding
     evidence of defendant’s prior sexual assault was admissible
     under common scheme exception despite nearly ten-year gap
     between periods of abuse, where victims were of similar age and
     both were daughters of defendant; defendant initiated contact
     with each victim during overnight visit in his apartment;
     defendant began sexual abuse by showing victims pornographic
     movies; and assaults occurred in bed at night). See also
     Commonwealth v. Luktisch, [] 680 A.2d 877 ([Pa. Super.]
     1996) (holding common scheme exception justified admission of
     testimony regarding defendant’s previous sexual assaults despite
     six-year lapse between periods of abuse, where three victims
     were nearly same age, victims were either daughter or step-
     daughter of defendant and lived with him when acts occurred;
     and pattern of molestation—from improper touching to oral sex
     to sexual intercourse—was highly similar with respect to two
     victims).

          Evidence of a prior crime may also be admitted to show a
     defendant’s actions were not the result of a mistake or accident,
     where the manner and circumstances of two crimes are


                                   -9-
J-S42033-18


        remarkably similar. See Commonwealth v. Sherwood, [] 982
        A.2d 483 ([Pa.] 2009) (holding evidence of defendant’s prior
        physical assaults of child was admissible to show absence of
        mistake or accident in prosecution for intentional beating death
        of child); Commonwealth v. Boczkowski, [] 846 A.2d 75
        ([Pa.] 2004) (holding evidence of defendant’s murder of former
        wife was admissible to show absence of accident in prosecution
        for murder of defendant’s second wife, where both victims were
        found dead in bathtub or hot tub in highly similar
        circumstances).

Tyson, 119 A.3d at 358–59 (some internal citations and quotation marks

omitted).

        Here, there are several victims who were the subject of the

Commonwealth’s notice of intent to introduce evidence of Appellant’s prior

acts.      The   victims    are    all   siblings   and   Appellant   is   their   uncle.

Commonwealth’s Notice of Intent to Introduce Evidence of Prior Bad Acts,

7/20/2017, at ¶ 2; N.T., 8/30/2017, at 78. L.M. is the victim in this case.

J.M., R.M., and C.M. are victims from Appellant’s prior convictions, in

January 2011, for indecent exposure and corruption of minors. Id. at ¶ 9.

It appears that M.M. was not a subject of Appellant’s prior convictions. Id.

The Commonwealth sought to admit evidence of Appellant’s prior other acts

against all of these nieces and nephew, J.M., R.M., C.M., and M.M. Id. at

¶ 12.    However, the trial court limited the evidence admissible to only

Appellant’s prior acts against his nephew, M.M.5 TCO, 2/1/2018, at 3, citing

____________________________________________


5 The trial court also ruled that if Appellant argued he did not know exposing
his penis to L.M. would affront, alarm or tend to corrupt the minor victim,
(Footnote Continued Next Page)



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N.T., 8/30/2017, at 50-51. At trial, M.M. testified, inter alia, that when he

was between the ages of five and ten, Appellant exposed his penis to M.M.

on about 20 different occasions when the two of them were alone.           N.T.,

8/30/2017, at 83-84, 95-96. M.M. also testified that when he was a child,

Appellant talked to him in a sexually suggestive manner. Id. at 97, 99.

      In deciding that the evidence of Appellant’s prior acts against M.M.

was admissible, the trial court explained that

      Appellant suggested that L.M. misinterpreted his acts as having
      sexual purpose.6 The testimony of the other victim, M.M., about
      Appellant’s indecent exposure was admissible to demonstrate
      that Appellant’s actual intent in removing his penis from his
      pants was not to simply urinate[,] but to show his penis to a 9-
      year old child for his own sexual gratification. Moreover, M.M.’s
      testimony was admissible to show that Appellant’s penis did not
      just accidentally come out of his pants.        Rather, it was a
      deliberate and intentional act in this instance as it had been
      years previously with M.M. See N.T., [8/30/2017,] at 84.
            __________
            6 Defense counsel suggested that Appellant might

            have exposed his penis to L.M. and his siblings when
            urinating. He further implied that corn fodder, which
            might have been stuck to Appellant’s clothing, had
            the appearance of a penis. N.T., [8/30/2017,] at 94-
            95.

TCO, 2/1/2018, at 8 (some citations and quotation marks omitted).

      We agree with the trial court that evidence of Appellant’s prior acts

against M.M. was relevant and admissible.         Admission of Appellant’s prior

(Footnote Continued) _______________________

the door would be open for the Commonwealth to introduce evidence of
Appellant’s prior convictions relating to J.M., R.M., and C.M. TCO, 2/1/2018,
at 3. No evidence of Appellant’s prior convictions was introduced at trial.



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acts of exposing his penis, on multiple occasions, to his nephew, M.M.,

demonstrates Appellant’s awareness that exposing his penis to his nephew,

L.M., was not a mistake or accident.               Appellant’s actions had significant

similarities suggesting that Appellant planned intentionally to take advantage

of a familial relationship and exposed his penis while he was alone with a

young nephew in a small outbuilding on the family farm where they lived.

The manner and circumstances of the incidents are nearly identical as to

time, place, and type of victim:           both victims are Appellant’s nephews;

Appellant committed the same acts against M.M. as he did against L.M.

(exposing his penis); he committed them when M.M. and L.M. were about

the same age (10 years old and younger); and he committed them in the

same location (in a building on the family farm). See Tyson, supra. Thus,

the challenged evidence was relevant to prove that the acts against L.M.

were intentional, rather than a mistake or accident, and that the factual

overlap between the two victims reflects a distinct pattern of Appellant

intentionally exposing his penis to young nephews while they were isolated

from other family members.6 Id.

____________________________________________


6 We note that, while Appellant has not raised an issue as to remoteness in
time, we do not find the evidence of prior acts against M.M. to be too remote
in time to negate its probative value. The remarkable similarities between
the acts against M.M. and L.M. render the time gap less important. See
Tyson, 119 A.3d at 359, quoting Aikens, supra (explaining that, 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
(Footnote Continued Next Page)



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

probative value of the evidence outweighed its prejudicial effect.”              TCO,

2/1/2018, at 9.        Appellant argues that M.M.’s testimony was “highly

prejudicial” because it “clearly tended to suggest to the jury to make a

decision on an improper basis: being that he must have exposed himself to

L.M. since he had done it before” and it “suggested to the jury that because

[Appellant] had done it so many times in the past, it was likely he had done

it again.” Appellant’s Brief at 13.

       In this case, evidence that Appellant had previously exposed his penis

under nearly identical circumstances is certainly probative.            However, we

must    still   consider    whether    its     admission   was    unduly   prejudicial.

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

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 [it]

beyond a rational consideration of guilt or innocence of the crime on trial.”).

       The trial court here explained that
(Footnote Continued) _______________________

design, the importance of the time period is inversely proportional to the
similarity of the crimes in question”).         In addition, Appellant was
incarcerated for several years during the time at issue. See Tyson, 119
A.3d at 361 (stating that “time spent in prison must be excluded in the
calculation of how much time has elapsed since the prior crime”); see also
Aikens, supra (holding ten-year lapse was not excessive); Luktisch,
supra. Moreover, remoteness in time is “only one factor in the common
scheme analysis, but not the dispositive factor.” Tyson, 119 A.3d at 361.



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      Although evidence of the prior indecent exposure on the victim,
      M.M., may have been prejudicial, it was not unduly so. As
      noted…, “‘[u]fair prejudice’ means a tendency to suggest
      decision on an improper basis or to divert the jury’s attention
      away from its duty of weighing the evidence impartially.”
      Pa.R.E. 403 cmt. The indecent exposure evidence, introduced
      for legitimate purposes, was not so prejudicial that it likely
      diverted the jury’s attention away from its duty of weighing the
      evidence impartially.

            Moreover, “[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.”
      Commonwealth v. Gordon, [] 673 A.2d 866, 870 ([Pa.] 1996).
      Here, the Commonwealth was required to prove indecent
      exposure, which includes knowingly exposing one’s genitals
      “under circumstances in which [the perpetrator] knows or should
      know that this conduct is likely to offend, affront or alarm.” 18
      Pa.C.S. [] § 3127(a). See also Commonwealth v. Thiry, 919
      A.2d 961, 963 (Pa. Super. 2007). Appellant denied that the
      exposure occurred, and since the uncorroborated testimony of
      the victim in this case might have reasonably led a jury to
      determine that there was a reasonable doubt as to whether
      Appellant committed the crimes charged, it was fair to conclude
      that the other [prior acts] evidence was necessary for the
      prosecution of the case.       Without doubt, the [prior acts]
      evidence was prejudicial to Appellant. That is what it is designed
      to be. On the facts of this case, however, it was not unduly
      prejudicial, as it was required for the Commonwealth’s case.
      Moreover, it is “[t]he function of the trial court … to balance the
      alleged prejudicial effect of the evidence against its probative
      value and it is not for an appellate court to usurp that function.”
      Commonwealth v. Parker, 882 A.2d 488, 492 (Pa. Super.
      2005), aff’d on other grounds, [] 919 A.2d 943 ([Pa.] 2007).

TCO, 2/1/2018, at 9-11.

      We recognize M.M.’s testimony was prejudicial to Appellant. However,

it was not such that it was an error of law or abuse of discretion for the trial

court to believe a jury would be able to look past the particulars of

Appellant’s prior acts and to consider the evidence only for the purpose for


                                     - 14 -
J-S42033-18


which it was permitted.       The evidence was critical in establishing the

absence of mistake or accident and a common scheme or plan. The degree

of similarity established between the incidents of criminal conduct and the

Commonwealth’s need to present the evidence weigh against any prejudicial

impact. See Tyson, supra.

      Moreover, the trial court provided the jury with a limiting instruction

regarding M.M.’s testimony and emphasized the limited purpose for which

the evidence was admissible, thereby minimizing any prejudicial effect. See

Weiss, 81 A.3d at 798. Specifically, the trial court instructed the jury at the

close of evidence that this evidence was to be used only for the limited

purpose of showing Appellant’s intent and absence of mistake or accident.

The court further cautioned that it was not be considered for any other

purpose other than what the trial court stated, and it must not be regarded

as showing Appellant “is a person of bad moral character or criminal

tendencies for which [the jury] might be inclined to infer guilt.”        N.T.,

8/30/2017, at 141.      The jury was advised at trial that the challenged

evidence could not be considered to establish that Appellant had a

propensity to commit a crime, and as we have noted, “the jury was free to

accept or reject the evidence and to give it whatever weight it felt it

deserved.”    Commonwealth v. Kinard, 95 A.3d 279, 287 (Pa. Super.

2014); see also Hairston, 84 A.3d at 666 (“Jurors are presumed to follow

the trial court’s instructions.”).   Accordingly, based on the foregoing, we



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conclude that the evidence 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: 10/17/2018




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