J-A24001-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ERIC MALOY

                            Appellant                  No. 1088 EDA 2013


            Appeal from the Judgment of Sentence March 15, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0012010-2011


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                         FILED AUGUST 29, 2014

       Appellant, Eric Maloy, appeals from the judgment of sentence entered

in the Philadelphia County Court of Common Pleas, following his jury trial

conviction of rape of a child under thirteen, involuntary deviate sexual



child, corruption of a minor, and indecent assault.1 We affirm.

       In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them.

       Appellant raises the following issue for our review:
____________________________________________


1
  18 Pa.C.S.A. §§ 3121(c), 3123(a)(6), 4304(a)(1), 6301(a)(1)(i), and
3126(a)(7) respectively.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
J-A24001-14


         DID THE COURT OF COMMON PLEAS ERR BY ADMITTING

         PRIOR/OTHER BAD ACTS WITNESSES PURSUANT                   TO
         PENNSYLVANIA RULE OF EVIDENCE 404(B)?



      Appellant urges that evidence of prior acts is generally admissible to

prove the identity of the perpetrator; however, there is no issue of

identification in this case. Appellant also claims the Commonwealth did not

show enough factual similarities between the prior child molestation

allegations and this case which would tend to prove common scheme or

plan. Appellant suggests that the few factual similarities which do exist are

merely common elements of all rape cases.        Appellant further insists the

time gap between the prior allegations and this crime was too lengthy to

establish the common plan exception.         Appellant avers each allegation

involved a different person and different circumstances. Appellant reasons

there is no logical connection between the prior alleged victims and the

victim in this case.    Appellant contends that, to establish this logical

connection, all incidents of child molestation must have occurred no more

than a few days apart. Appellant submits evidence of the prior child rape

allegations were inadmissible under the common plan, scheme, or design

exception. Likewise, Appellant asserts the prior child rape allegations were

inadmissible to show his intent, motive, knowledge or state of mind. Based

upon the foregoing, Appellant maintains admission of the prior child rape

allegations denied him a fair trial.   Additionally, Appellant submits that all

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previous allegations were inadmissible under the doctrine of collateral

estoppel, because he was not convicted of the offenses charged in the prior

matters. Appellant insists the trial court abused its discretion in allowing this

testimony because the prejudicial nature of the evidence far outweighed its

probative value. Appellant concludes he is entitled to a new trial without the

testimony at issue. We disagree.



and will be reversed only upon a showing that the trial court clearly abused

                 Commonwealth v. Drumheller, 570 Pa. 117, 135, 808

A.2d 893, 904 (2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2284, 156

L.Ed.2d 137 (2003) (quoting Commonwealth v. Stallworth, 566 Pa. 349,

363, 781 A.2d 110, 117 (2001)).

         Admissibility depends on relevance and probative value.
         Evidence is relevant if it logically tends to establish a
         material fact in the case, tends to make a fact at issue
         more or less probable or supports a reasonable inference
         or presumption regarding a material fact.

Drumheller, supra at 135, 808 A.2d at 904 (quoting Stallworth, supra at

363, 781 A.2d at 117-18).




Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa.Super. 2008),

appeal denied, 600 Pa. 739, 964 A.2d 1 (2009).           Rule 404 governs the

admissibility of other crimes evidence as follows:


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        Rule 404.  Character evidence not admissible to
               prove conduct; exceptions; other crimes

                                 *    *    *

           (b)   Other crimes, wrongs, or acts.

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

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

           (3) Evidence of other crimes, wrongs, or acts
        proffered under subsection (b)(2) of this rule may be
        admitted in a criminal case only upon a showing that the
        probative value of the evidence outweighs its potential for
        prejudice.

                                 *    *    *

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

     This Court has found evidence of prior bad acts admissible when it

establishes a common plan, scheme, or design. Commonwealth v. Judd,

897 A.2d 1224, 1232 (Pa.Super. 2006), appeal denied, 590 Pa. 675, 912

A.2d 1291 (2006) (internal citations omitted).

        The following factors should be considered in establishing
        similarity:

              the elapsed time between the crimes;

              the geographical proximity of the crime scenes; and

              the manner in which the crimes were committed.




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J-A24001-14


Id. at 1231-32 (internal citations, quotation marks, and footnote omitted).

Evidence is properly admitted under the common plan, scheme, or design

exception where all of the alleged acts are of a similar character.

Commonwealth v. Booth, 435 A.2d 1220, 1226 (Pa.Super. 1981) (holding



evidence was admissible under common plan, scheme, design exception).

To establish a common plan or scheme, courts must examine the details of

the prior and present incidents for shared factual similarities in their

entirety.                              , 836 A.2d 966, 970-71 (Pa.Super.

20

                  Commonwealth v. Arrington, 86 A.3d 831, 842 (Pa.

2014) (quoting Commonwealth v. Miller, 541 Pa. 531, 664 A.2d 1310,

(1995)). A common plan, scheme, or design may be relevant to establish

any element of a crime.     Commonwealth v. Einhorn, 911 A.2d 960

(Pa.Super. 2006), appeal denied, 591 Pa. 723, 920 A.2d 831 (2007).



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

                                         Commonwealth v. Reid, 571 Pa.

1, 35, 811 A.2d 530, 550 (2002), cert. denied, 540 U.S. 850, 124 S.Ct. 131,



situations where the bad acts were part of a chain or sequence of events


                                   -5-
J-A24001-14


that formed the history of the case and were part of its natural

                Id.

                           nce of prior bad acts is admissible in rebuttal to



              Commonwealth v. Powers, 577 A.2d 194, 196 (Pa.Super.



testimony on cross-                                                 Id. See also

Commonwealth v. Barnett, 50 A.3d 176, 190 (Pa.Super. 2012), appeal

denied, ___ Pa. ___, 63 A.3d 772 (2013) (reiterating that courts have

discretion to decide order of presentation of evidence at trial).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Donna M.



opinion comprehensively discusses and properly disposes of the question

presented, with one exception that we will discuss presently.          (See Trial

Court Opinion, filed June 18, 2013, at 5-10) (finding: victims were all African

American male children; victims were all anally penetrated; Appellant was




residence during time when molestations allegedly occurred; all incidents

occurred at night after victims had fallen asleep; time between incidents was

not dispositive; Appellant historically and consistently portrayed all victims


                                      -6-
J-A24001-14


as liars and all allegations as fabrications; Appellant implied present rape

allegation was fabricated on behalf of his life partner; prior acts established

common plan or scheme; repeated use of male children to satisfy sexual



rebutted inference that current victim and witnesses fabricated charges;

probative value of prior rape allegations outweighed prejudicial effect). The



disturb it on the grounds alleged. See Drumheller, supra.

      The one argument the trial court opinion did not address was



acquittals is precluded under Dowling v. United States, 493 U.S. 342, 110

S.Ct. 668, 107 L.Ed.2d 780 (1990). Initially, we observe that any issues not



appellate review. Pa.R.A.P. 1925(b)(4)(vii). The purpose of a Rule 1925(b)

statement is to provide the trial court with an opportunity to provide the

appellate court with an explanation of its ruling.       Commonwealth v.

Blystone, 617 A.2d 778 (Pa.Super. 1992). Incorporating issues into a Rule

1925(b) statement by reference to another document constitutes a failure to

comply with letter and spirit of Rule 1925(b). Commonwealth v. Osteen,

552 A.2d 1124, 1126 (Pa.Super 1989).

      Instantly, Appellant does mention his Dowling argument in his June

6, 2012, motion in limine


                                     -7-
J-A24001-14


does not specify this argument. Rather, Appellant incorporated his June 6

motion by reference in his Rule 1925(b) statement.      Additionally, the trial

court opinion does not address the issue.       Therefore, Appellant arguably

failed to preserve it for our review. See id.

      Moreover, Appellant misinterprets Dowling.      The issue presented in

Dowling was whether evidence of prior bad acts admitted for purposes of

suspect identification violated the doctrine of collateral estoppel when

Appellant was acquitted of those prior acts.    Dowling, supra at 348, 110

S.Ct. at 673, 107 L.Ed.2d at ___.        The U.S. Supreme Court held that

collateral estoppel did not preclude the government from entering evidence

of prior bad acts, even though they resulted in acquittals, because

admissibility does not require proof beyond a reasonable doubt. Id. at 350,

110 S.Ct. at 673, 107 L.Ed.2d at ___. The Dowling Court did not limit its



Consequently, Dowling does not stand for the limited proposition Appellant

asserts. Thus, even if properly preserved, this particular claim lacks merit.

Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.




                                     -8-
J-A24001-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/2014




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                                                                                                    FILED
                        FIRSi~J~~I~~UD~!T~~i'~:p~~~i~~~ANIA                                     .JUL 1 8 2013
                             TRIAL DIVISION - CRIMINAL SECTION                           Ft e{'min.a! Appeals Unit
                                                                                          I(S Judicial District of PA
         COMMONWEALTH OF                                                     CP-SI-CR-0012010-2011
         PENNSYLVANIA

                                CP_51_CR_0012010-2011 Comm. v. Maloy, Eric
                                                                             SUPERIOR COURT
                 vs.                            Opinion                      NO. 1088 EDA 2013


         ERIC MALOY                 1111111111111111111111111
                                             7043053701

                                                       OPINION

WOELPPER, J.                                                                             JULY 18,2013



    I.       PROCEDURAL OVERVIEW

         On December 3,2012, ajury found defendant Eric Maloy ("Defendant") guilty of rape of

a child under thirteen, I involuntary deviate sexual intercourse with a child under thirteen

("IDSI"),2 endangering the welfare of a child ("EWOC"),3 corruption of a minor,4 and indecent

assault.s On March 15,2013, the trial court found that Defendant met the criteria for a sexually

violent predator6 and sentenced him to an aggregate of thirty-six to seventy-two years of

incarceration. 7 The court also ordered that Defendant receive sex offender treatment.




1 18 Pa. C.S. § 3121(c).
218 Pa. C.S. § 3123(b).
3 18 Pa. C.S. § 4304.
4 18 Pa. C.S. § 630 I (a)(l )(i).
518 Pa. e.S. § 3123.
6 In making this determination, the court considered the expert report and testimony of Barbara Ziv. M.D., a member
of the Sexual Offenders Assessment Board. In both her report and live testimony, Dr. Ziv opined that Defendant
met the criteria for a sexually violent predator.
7 The court fashioned Defendant's sentence as follows: eighteen to thirty-six years of incarceration on the rape
charge; eighteen to thirty-six years of incarceration on the IDSI charge; two to four years of incarceration on the
EWOC charge; one to two years of incarceration on the corruption of a minor charge; and two to four years of
incarceration on the indecent assault charge. The incarceration sentence on the IDSI charge was ordered to run
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          Defendant filed a pro se notice of appeal on April 10, 2013, and subsequently retained

private counsel to represent him. 8 Defendant's statement of errors complained of on appeal

("Statement") alleges that in granting the Commonwealth's "Motion to Admit Other Acts of

Defendant" ("Motion"), and subsequently admitting evidence of those other acts at trial, the trial

court committed "prejudicial error and deprived [Defendant] of due process and a fair trial."

"Statement" at -,r 4. For the reasons below, the court's judgment of sentence should be affirmed.


    II.       FACTUAL BACKGROUND

          The Commonwealth's Motion alleged the following facts, which were consistent with the

testimony subsequently presented at trial. The complainant, S.W., alleged that when he was

between five and six years old, Defendant (who was his godfather), anally and orally raped him.

Motion at p. 3 at -,r 2; Notes of Testimony ("N.T."), Nov. 28, 2012 at pp. 16-17. These assaults'

occurred at Defendant's house while he was charged with taking care of S.W. Motion at p. 3, -,r

I; N.T., Nov. 28, 2012 at p. 34. In the summer of2011, S.W.'s family was unable to send him to

summer camp, so they sent him to spend the majority of the summer with Defendant instead.

Motion at p. 3, -,r I; N.T., Nov. 28, 2012 at p. 74. At the end of that summer, S.W. told

Defendant's then fifteen-year-old son that Defendant had "sucked [S.W.'s] dick," "made [S.W.]

suck [Defendant's] dick," and "put [Defendant's] dick in [S.W.'s] butt." Motion at p. 3, -,r 2;

N.T. Nov. 28,2012 at pp. 17-18. S.W. also told Defendant's son that "piss" and "white stuff'

came out of Defendant's penis and onto the couch. Motion at p. 3, -,r 3; N.T., Nov. 28, 2012 at p.

21. Testimony at trial revealed that S.W. told Defendant's then-partner about the assaults as

well. N.T., Nov. 28, 2012 at pp. 101-02.

consecutive to the sentence on the rape charge. All remaining sentences were ordered to run concurrent to the rape
charge.
8 Jennifer Ann Santiago, Esquire was initially appointed as Defendant's appeal counsel, but Defendant subsequently
retained Jason Kadish, Esquire to represent him on appeal. Mr. Kadish had also served as Defendant's trial counsel
in this matter.

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        Defendant's son told his mother (Defendant's ex-wife) about S.W.'s allegations, and they

reported the alleged assaults to the police. Motion at p. 3, '1[4; N.T., Nov. 28, 2012 at p. 58. Law

enforcement notified the Department of Human Services ("DHS") of the allegations, and a DHS

representative immediately went to Defendant's home to assess S.W. 's safety. Motion at p. 4, '1[

5; N.T., Nov. 29, 2012 at pp. 77-80. When the DHS worker explained to Defendant that he had

been asked to investigate S.W.'s welfare, Defendant responded that he had not seen S.W. in

approximately two months and thought he may have gone to New Jersey. Motion at p. 4, '1[5;

N.T., Nov. 29, 2012 at p. 80. After speaking with DHS, Defendant instructed his partner to take

S.W. (who had been at Defendant's house during the conversation with DHS) out to the

backyard. Motion at p. 4, '1[5; N.T., Nov. 28, 2012 at p. 105. Having leamed of the alleged

assaults, however, Defendant's partner took S.W. next door instead. N.T., Nov. 28, 2012 at p.

106.


       DHS and law enforcement observed S.W. exiting Defendant's neighbor's home and took

him for a forensic interview at the Philadelphia Children's Alliance. Motion at p. 4, '1['1[5-6; N.T.,

Nov. 29, 2012 at pp. 68; 85. S.W. was also given an acute sexual assault examination at the

Children's Hospital of Philadelphia, including the collection of forensic evidence. Motion at p.

4, '1[6; N.T., Nov. 29, 2012 at pp. 12-13. Though the collection results did not test positive for

the presence of sperm, and the physical examination did not reveal any visible signs of abuse,

these results did not contradict the reported assaults. Motion at p. 4, '1[6; N.T., Nov. 29,2012 at

pp. 16-20.


       A warrant was subsequently secured for Defendant's arrest. Motion at p. 4, '1[7; N.T.

Nov. 29, 2012 at p. 120. Law enforcement made several unsuccessful attempts to arrest

Defendant at his residence. Motion at p. 4, '1[7; N.T., Nov. 29, 2012 at p. 120-21. Only after the

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Fugitive Task Force of the United States Marshals became involved was Defendant found and

arrested at a Philadelphia motel. Motion at p. 4, ~ 7; N.T., Nov. 29, 2012 at p. 138-40. 9


        The Commonwealth filed the contested motion on February 22, 2012, alleging the above-

outlined facts and seeking to admit testimony that Defendant had anaUy raped four other minor

boys in the past. The basis for seeking to admit this testimony was to show a common scheme,

plan, or pattern, establish Defendant's motive and intent, illustrate the history of the case, and

refute any defense that S.W. was fabricating the alleged events. Motion at p. 4. The facts of the

"other acts" as alleged in the Motion are reproduced in full below.


                  I.   In July, 1998, [T.B.] (then I 9-years-old), disclosed that his Godfather, the defendant,
                       had been molesting him since he was thirteen. [T.B.] lived with the defendant from
                       the age of thirteen because his dad was abusive and his mom was deceased.
                       Specifically, [T.B.] disclosed that the defendant frequently anally raped him inside of
                       his home over the course ofthose six years. The defendant gave a statement to police
                       arguing that [T.B.] fabricated allegations of sexual assault against the defendant
                       because of a disagreement over [T.B.' s] social security money. (The defendant stated
                       that he managed [T.B. 's] social security money because [T.B.] "was found to be
                       mentally incompetent by the state to handle his money.") The defendant was arrested
                       and charged with sexually abusing [T.B.] under CP-5I -CR-II 07591-1998. The case
                       was held for court and was then consolidated for ajury trial with the matter involving
                       [R. W .] (described below). The defendant was granted a judgment of acquittal after
                       prosecutors made the opening statement on the matter, but could not locate the victim
                       for his testimony. 10

                 2.    In October, 1998, [R.W.] (then 14-years-old), disclosed that his uncle, the defendant,
                       attempted to anally rape him once at his mother's home, and anally raped him
                       another time in the defendant's home. The defendant gave a statement to police
                       arguing that [R. W.] fabricated the allegations of sexual assault against the defendant
                       because [R.W.'s] father hates the defendant. The defendant was arrested and charged
                       with sexually abusing [R.W.] under CP-51-CR-100831 1-1998. This case was held




9 The Marshals received information on Defendant's whereabouts after having placed Defendant's fugitive profile in
the Phi/adelphia Daily News. N.T., Nov. 29, 2012 at p. 139.
10 On November 29,2012, the Commonwealth called T.B. to testify at Defendant's trial. T.B. testified that while he
was living with Defendant, Defendant anally raped and beat him on mUltiple occasions, generally after T.B. had
gone to sleep. N.T., Nov. 29, 2012 at pp. 164-167. T.B. testified that he failed to appear at Defendant's trial for
those assaults because Defendant had taken him out of state at the time of trial. [d. at 180.

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                       for court and was then consolidated for trial with the matter involving [T.B.]. The
                       matter was tried by jury, and the defendant was found not guilty. I I

                  3.   In December, 1992, [S.S.] (then 14-years-old), disclosed that the defendant anally
                       raped him on numerous occasions. [S.S.] had been living with the defendant for
                       approximately two months because he was having problems at home and his mother
                       was in an inpatient drug rehabilitation program outside the city of Philadelphia. The
                       defendant gave a statement to police insinuating that [S.S.] fabricated the allegations
                       of sexual assault against the defendant because ofa contlict between the defendant
                       and [S.S.'s] family. The defendant was arrested and charged with sexually abusing
                       S.S. under CP-51-CR-0300131-1993. The case was held for court after a preliminary
                       hearing. Records indicate that [S.S.] was then moved to Allentown for fear of his
                       safety. However, prior to trial the case was nolle prossed due to the inability to
                       locate [S.S.] after the move.

                  4.   In October, 1983, [R.L.], (then two-and-a-half-years old), disclosed to his
                       grandmother that his babysitter, the defendant, put his "ding-dong" (penis) inside his
                       butt when he was on the couch, laying on his stomach, and that it hurt. [R.L. 's]
                       mother noticed "ripped skin" on [R.L.'s] anal area, and took him to the hospital and
                       to the police. The defendant later admitted to anally penetrating the child, stating that
                       he "acted out of vengeance towards the child's mother, his cousin's girlfriend, who
                       had been mean to him." When asked why he chose to penetrated [sic] the child,
                       rather than using some other form of retaliation or violence, the defendant was unable
                       to give any explanation. The defendant was arrested and processed as ajuvenile
                       under docket number JV -0 I 08356-1983. Records retlect that the defendant was
                       committed to a delinquent institution (Loysville Youth Development Center) as a
                       result of this case.

Motion at pp. 4-5.

           On November 30, 2012, this court granted the Commonwealth's motion to admit

testimony pertaining to the alleged assaults against T.B., R.W., and S.S., but denied the motion

as to R.L. At the time of trial, however, the Commonwealth only secured the testimony ofT.B.

and R.W. Therefore, none of the allegations involving S.S. were admitted.

    III.      DISCUSSION


           Contrary to Defendant's contention on appeal, the trial court properly admitted evidence

of his prior alleged assaults against T.B. and R.W. for purposes of demonstrating that



II The Commonwealth also called R. W. to testify on November 29,2012. R.W. testified that his uncle (Defendant)
had anally raped him on multiple occasions, including at Defendant's house. N.T., Nov. 29,2012 at p. 188-190.
R. W. testified that at the time ofthese assaults, his parents were in the course of getting divorced. !d. at 200.

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Defendant's alleged assaults on S.W. were part ofa common scheme, plan, or pattern;

establishing motive, intent, and opportunity to commit the assaults; and refuting any inference

that S.W. had fabricated the allegations against Defendant. The trial court has broad discretion

in determining what evidence to admit at trial, and its evidentiary decisions should be upheld

absent an abuse of discretion. Commonwealth v. Glass, 50 A.3d 720, 725 (Pa. Super. Ct. 2012).

"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 the record." Id. at 725

(internal quotations omitted). Evidence of a defendant's past conduct may be admitted if done

for a purpose other than to show bad character or hislher propensity to commit the current

offense with which he/she is charged. See Commonwealth v. Reese, 31 A.3d 708, 723 (Pa.

Super. Ct. 20 11); Pa.R.Evid. 404(b)(I). Though not an exhaustive list, Pennsylvania Rule of

Evidence 404 outlines purposes for which "other acts" evidence may be admitted, including

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident. Pa.R.Evid.404(b)(2). Even if used for a recognized purpose, however, the evidence's

probative value must outweigh any prejudicial effect. !d.


        Evidence is not prejudicial in the context of the 404(b) analysis merely because it would

have a harmful effect on a defendant's case. See Commonwealth v. Dillon, 925 A.2d 131, 141

(Pa. 2007). The court need not "sanitize the trial to eliminate all unpleasant facts" that are

otherwise relevant. !d. To the contrary, "'unfair 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." Id. (citing Pa.R.Evid. 403 cmt.).




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        Here, evidence introduced through T.B. and R.W. was relevant to establish Defendant's

common scheme, plan, or design in sexually assaulting minor boys, including S.W. A common

scheme, plan, or design is recognized when two or more acts took place in similar locations,

involved similar victims, and involved similar acts against those victims. See Commonwealth v.

Aikens, 990 A.2d 1181, 1185-86 (Pa. Super. Ct. 2010), appeal denied, 4 A.3d 157 (Pa. 2010). In

Aikens, the appellant had asked his fourteen-year-old daughter (the complainant) to watch a

pornographic movie with him. Id. at 1182-83. The complainant told the appellant that she did

not want to watch the movie and turned her head away. Id. at 1183. The appellant then began

massaging the complainant's shoulders, thighs, buttocks, and genital area. Id. The complainant

got up and went into the bathroom. Id. When she returned, the appellant was touching his

exposed penis. !d. The complainant sat back on the bed and turned her back toward the

appellant. Id. He attempted to unfasten her pants, but she stopped him, and he proceeded to

grope her and grind against her. Id. At trial, the Commonwealth called the appellant's daughter

from another relationship to testify. Id. This witness testified that fifteen years prior to the

subject assault, when she was fifteen years old, she spent the night at the appellant's apartment,

where he watched a pornographic movie and then raped her. !d.


       On appeal, the Superior Court noted the "lengthy" time lapse between the subject offense

and the prior act. Id. at 1186. The Court also noted, however, that "remoteness is merely one

factor to be considered in determining admissibility; the importance of the gap in time is

inversely proportional to the similarity between the crimes." Id. Because the abuse "was

perpetrated in an identical manner on victims with identical characteristics in an identical

setting," the remoteness of the prior act "was not determinative of the issue." Id. Furthermore,

the striking similarities in the victims' ages, relationships to the appellant, circumstances of the


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contact, and geographical location of the attack, rendered the evidence's probative value greater

than its prejudicial effect. !d.


        Here, the alleged assaults against T.B. and R. W. were reported in 1998, almost thirteen

years prior to S.W.'s allegations against Defendant. Weighed against this remoteness between

the "other acts" and subject assaults, however, are a number of the similarities noted by the

Aikens Court. First, the victims' identities were similar: each was an African American, minor

male. Second, the geographic location of the incidents was the same: the assaults took place in

Defendant's home, which had also become the temporary residence ofT.B. and S.W. Third, the

circumstances ofthe alleged contact were the same: each involved anal penetration. Fourth, the

victims shared similar relationships to Defendant: the victims were minor boys who were either

related to Defendant or who were Defendant's godsons, staying with him at times when their

own families required assistance with childcare. It was in this capacity as a trusted caretaker, in

a home where the boys should have felt safe, that Defendant assaulted the victims. Despite these

striking similarities between the prior and subject allegations, the occurrences were nonetheless

distinguishable by the jury, especially because they were presented through the testimony of

three individual complainants. Therefore, the probative value of the evidence outweighed any

risk that the jury would be unable to separate the evidence. See Dillon, 925 A.2d at 141 (court

should consider whether evidence is likely to confuse the issues or mislead the jury).


        The trial court also permitted admission of the evidence to establish Defendant's motive

and intent when assaulting S.W. Other acts evidence is admissible to establish a defendant's

state of mind at the time he/she committed the alleged offense(s). See, e.g., Commonwealth v.

Rivera, 828 A.2d 1094, 1101 (Pa. Super. Ct. 2003), appeal denied, 842 A.2d 406 (Pa. 2004).

Here, the Commonwealth charged Defendant with, inter alia, indecent assault, pursuant to 18

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Pa.C.S. § 3126. The Commonwealth had the burden of proving that Defendant had indecent

contact with S.W. "for the purpose of arousing sexual desire in the person or the complainant ... "

18 Pa.C.S. § 3126(a). Evidence that Defendant had repeatedly targeted and used other minor

boys under his care or supervision to arouse his "sexual desire" was probative of his intent and

motive when engaging in similar conduct, and for a similar purpose, with S.W.


         The prior acts evidence was also admissible to demonstrate Defendant's opportunity to

sexually assault S.W. Through cross-examination, the defense insinuated the unlikelihood that

Defendant would be able to assault S.W. in the small, crowded homes I2 without any ofthe other

residents being placed on notice. N.T., Nov. 28, 2012 at pp. 69-70. Evidence that Defendant

had similarly assaulted other minor boys in his home in the past was relevant to proving that

Defendant did, in fact, have the opportunity to commit the assaults.


         Finally, the evidence was admissible to refute any inferences that S.W.'s allegations were

fabricated. See Commonwealth v. Saxton, 532 A.2d 352, 357 (Pa. 1987) ("One exception to the

general prohibition is that the Commonwealth may introduce evidence tending to show prior

offenses if the purpose is to rebut statements which create inferences favorable to the accused")

(internal citation omitted). Through cross-examination, the defense raised a number of

inferences suggesting that the allegations were unfounded. First, the defense questioned

Defendant's son on his impression that S.W. told "a lot" of lies. N.T., Nov. 28, 2012 at pp. 71-

72. Second, the defense questioned why S.W. continued to stay at Defendant's house and failed

to promptly report the assaults until the end of August, 2011, if they had been occurring

repeatedly. Id. at 47-48; 76. Third, the defense questioned the motives of Defendant's son and


12 S. W. testified that he was assaulted at Defendant's first home (at 2617 Federal Street in Philadelphia), and also
when Defendant moved to another home (at 5621 Washington Avenue, Philadelphia). N.T., Nov. 28, 2012 at pp.
27; 45; 67-68.

                                                            9
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Defendant's former partner in seeing that the assaults were reported. The defense implied that

Defendant's son may have wanted to assist in fabricating allegations against his father because

he believed his father's homosexual lifestyle was "sinful." [d. at 80. Similarly, the defense

suggested that Defendant's former partner may have been motivated to retaliate against

Defendant because Defendant had been seeing another man. Id. at pp. 110-11. Given that

witness credibility is of the utmost importance in sexual assault cases such as this one, where the

case relies on circumstantial evidence, the court properly found that the probative value of this

"other acts" evidence outweighed its prejudicial effect. 13 See Commonwealth v. Gordon, 673

A.2d 866, 870 (Pa. 1996) (where evidence of sexual assault is uncorroborated, "it is fair to

conclude that the other crimes evidence is necessary for the prosecution of the case").


    IV.       CONCLUSION


             For the reasons above, the court properly admitted the "other acts" evidence, and the

    judgment of sentence should be affirmed.




                                                                                                 BY THE COURT:


                                                                                     LjlflL~
                                                                                    DONNA M. WOELPPER, J.




13 The court cautioned the jury both after T.B. and R.W.'s testimony, and again during charging, that the "other acts"
evidence was for the limited purpose of showing Defendant's common scheme, plan, or pattern in committing the
assaults, his motive, intent, and opportunity to do so, and to refute any defense that S. W. fabricated the allegations.
N.T .. Nov. 29, 2012 at pp. 186; 202-03; N.T., Nov. 30,2012 at p. 63.

                                                           10
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                      IN THE COURT OF COMMON PLEAS
                 FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                    TRIAL DIVISION - CRIMINAL SECTION


       COMMONWEALTH OF                                         CP-SI-CR-001201O-2011
       PENNSYLVANIA

                                                               SUPERIOR COURT
               vs.                                             NO. 1088 EDA 2013


       ERIC MALOY


                                    PROOF OF SERVICE
                                     (Yi
I hereby certify that I am this   F6' day of July, 2013, serving the foregoing Opinion on the
persons indicated below, by first class mail:


Jason C. Kadish, Esquire
Allan J. Sagot & Associates
Suite 1320, Three Parkway
Philadelphia, PA 19102

Hugh Burns, Assistant District Attorney
Chief, Appeals Unit
District Attorney's Office
Three South Penn Square
Philadelphia, P A 19107




                                                        Alyso    . Walkenstein, Esquire
                                                        Law Clerk to the Honorable
                                                        Donna M. Woelpper
