J-S26043-15

                                  2015 PA Super 228

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

LAWRENCE A. SEMENZA

                            Appellant                   No. 531 MDA 2014


           Appeal from the Judgment of Sentence January 27, 2014
            In the Court of Common Pleas of Lackawanna County
             Criminal Division at No(s): CP-35-CR-0001203-2012

BEFORE: OTT, J., WECHT, J., and JENKINS, J.

OPINION BY JENKINS, J.:                            FILED NOVEMBER 02, 2015

        Lawrence Semenza, captain of the Old Forge Fire Department and

chief of the Old Forge Police Department, was accused of committing various

sexual offenses against a minor, N.B., a volunteer firefighter, in 2004-05. A

jury found Semenza guilty of corruption of minors1 and failure to report

suspected child abuse2 but acquitted him of unlawful contact with a minor,3

indecent exposure4 and indecent assault.5             The trial court sentenced

____________________________________________


1
    18 Pa.C.S. § 6301.
2
    23 Pa.C.S. § 6311.
3
    18 Pa.C.S. § 6318.
4
    18 Pa.C.S. § 3127.
5
    18 Pa.C.S. § 3125.


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Semenza to an aggregate of 1½ - 4 years’ imprisonment.            Semenza filed

timely post-sentence motions, which the court denied, and a timely notice of

appeal. Both Semenza and the trial court complied with Pa.R.A.P. 1925.

       The first issue in this appeal is whether the trial court abused its

discretion in admitting evidence under Pa.R.E. 404(b) of Semenza’s sexual

relationship with an adult female, M.K.S.,6 in 2007-08, subsequent to

Semenza’s alleged crimes against N.B.             The trial court held that this

evidence was admissible under Rule 404(b)(2) to demonstrate the existence

of a common scheme or plan.              We disagree, and we reverse Semenza’s

judgment of sentence and remand for a new trial.

       Semenza raises the following four issues on appeal:

       1. Did the trial court err and abuse its discretion in allowing [S.]
          to testify to matters involving prior wrongs or bad acts which
          neither fell within an exception under Pa.R.E. 404(b) and,
          alternatively, were irrelevant and unduly and unfairly
          prejudicial to the Defendant’s right to a fair trial?

       2. Did the trial court err and abuse its discretion in refusing to
          give the jury instruction on corruption of minors as requested
          by the defense and in failing, over the objection of the
          defense, to provide the Pennsylvania Standard Criminal Jury
          Instruction on corruption of minors?

       3. Did the trial court abuse its discretion and/or err as a matter
          of law in concluding that 18 Pa.C.S.A. § 6301(a)(1) is a
          sexual offense or similar to § 6301(a)(1)(ii) thereby requiring
          registration pursuant to 42 Pa.C.S.A. §§ 9799.13(1) &
____________________________________________


6
 As discussed below, it seems clear from the record that M.K.S. was not a
minor at the time she met Semenza. Nevertheless, to protect her dignity,
we will refer to her by her initials.



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         9799.14 and in directing that [Semenza] register as a sex
         offender for a period of 15 years?

      4. Did the trial court abuse its discretion and impose a
         manifestly excessive sentence which fell outside the
         Pennsylvania Sentencing Guidelines in assigning an offense
         gravity score of ‘5’ rather than a ‘4’ to the corruption of
         minors conviction, where the alleged conduct occurred
         between 2004-2007 and it could not be concluded from the
         verdict that the offense was one of a ‘sexual nature’?

Brief For Appellant, at 6.

      In his first argument, Semenza challenges the trial court’s decision to

admit evidence of his sexual relationship with M.K.S. under the common

scheme exception to Rule 404(b)(2). The admissibility of evidence is within

the sound discretion of the trial court, and we will not disturb an evidentiary

ruling absent an abuse of that discretion.    Commonwealth v. Flor, 998

A.2d 606, 623 (Pa.2010).     “An abuse of discretion is not merely an error of

judgment, but is rather the overriding or misapplication of the law, or the

exercise of judgment that is manifestly unreasonable, or the result of bias,

prejudice, ill-will or partiality, as shown by the evidence of record.”

Commonwealth v. Harris, 884 A.2d 920, 924 (Pa.Super.2005).

      The following evidence is pertinent to the common scheme issue. In

2004, Semenza was 40 years old, and he was both captain of the Old Forge

Fire Department and a sergeant in the Old Forge Police Department. N.T.,

10/16/13, at 62, 118. In 2005, he became chief of the Police Department.

N.T., 10/21/13, at 201.




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     N.B. testified that in 2004, when she was 15 years old and a

sophomore in high school, she wanted to become a member of the fire

department, because she had grown up around firefighters. N.T. 10/16/13,

pp. 53, 57. She applied to become a firefighter at the Old Forge firehouse.

Semenza approved her application, making her the only female junior

firefighter in the house.   She began the Essentials training program that

summer and completed it in the fall of 2004. Id. at 58-61. Semenza, her

boss, was very supportive and accepting, and she saw him on a daily basis.

Id. at 62, 63. She considered the firehouse a second home. Id. at 170.

     N.B. testified that upon joining the fire department, she received old

firefighter gear but was then immediately fitted for better fitting gear, a

development she attributed to her relationship with Semenza.          N.T.,

10/16/13, at 66-70.    Other evidence indicates, however, that she did not

receive the new gear until one year after joining the fire department, and

that 8 of the 12-15 members of the firehouse received new gear at the same

time as she. N.T., 10/21/13, at 119-21. This equipment was paid for by the

fire company. N.T., 10/16/13, at 70.

     N.B. testified that her first intimate physical contact with Semenza

occurred in the kitchen of the firehouse, where he touched and kissed her.

N.T., 10/16/13, at 73. N.B. did not identify the date of this incident.

Furthermore, in February 2005, after N.B. fought her first large fire,

Semenza watched her take a shower in the firehouse bathroom. Id. at 82-


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85.   N.B. also stated that she and Semenza kissed on multiple occasions,

and that Semenza “grabbed [her] butt” in front of people and ground his

body into her back.    Id. at 117.    Other witnesses observed displays of

affection between Semenza and N.B. See pages 6-7, infra.

      N.B. accused Semenza of digitally penetrating her vagina on two

occasions.    Once, in early 2005, while N.B. sat under a blanket with

Semenza on the couch in the television room of the firehouse, Semenza

placed his hand within her underwear and digitally penetrated her.      N.T.,

10/16/13, at 108-09, 111, 112. On another occasion close in time to the

incident on the couch, Semenza digitally penetrated her in the firehouse

weight room. Id. at 116. These were the only times that Semenza touched

her vaginally, and he never touched her in that manner after her sixteenth

birthday in March 2006. Id. at 117, 191, 197. Semenza never had vaginal

intercourse or oral sex with N.B. Id. at 178, 196.

      N.B. added that on another unspecified date, Semenza exposed

himself to her in the firehouse kitchen and asked her to touch his penis.

N.T., 10/16/13, at 117.

      N.B. stated that she went to multiple training events with Semenza

and other members of the department.         N.T., 10/16/13, at 91.   At most

events, Semenza was an instructor.     Id.   On one trip, they had “intimate

kissing” in his room, but nothing else happened. Id. at 94-95.




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       N.B. testified that she wanted a romantic relationship with Semenza

and believed that she was almost like his wife. N.T., 10/16/13, at 214. As

part of their relationship, Semenza gave N.B. presents, such as a Claddagh

ring (a traditional Irish ring) and a Maltese Cross.        N.T., 10/16/13, at 98,

100.    These gifts, however, coincided with other members of the fire

department exchanging Christmas gifts. Id. at 97, 100-102, 174.

       N.B. testified that her romantic relationship with Semenza started to

wane during her senior year in high school and ended by the end of 2006 or

beginning of 2007. N.T., 10/16/13, at 144-145, 244. According to N.B., she

became “very busy” with “[her] senior project and senior activities,” and

Semenza was busy as well, so their relationship “kind of just faded away.”

Id. at 148.

       The testimony of other Commonwealth witnesses suggests that

Semenza’s relationship with N.B. had a sexual dimension.              Kim Zupon,

Semenza’s ex-wife, and Michael Zupon, Kim’s present husband, testified that

in the spring of 2004 or 2005,7 they observed Semenza with N.B. in a

lingerie department in Wal-Mart.               N.T., 10/17/13, at 160-62, 180-82.

____________________________________________


7
  Kim Zupon testified that she could not remember which year the incident
took place, but she recalled that the event took place during the spring when
her daughter was fifteen years old. N.T., 10/17/13, at 161-62. Her
daughter was born on May 16, 1989. Id. at 162. Thus, her testimony
indicates that the incident took place in the mid-to-late spring of 2004 or the
early spring of 2005.




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Semenza was holding thong underwear against N.B. and commenting about

how thong underwear would look sexy on her. N.T., 10/17/13, at 180-82.

Alysha Englert testified that in the fall of 2004, she observed Semenza

kissing N.B. romantically in the firehouse kitchen. N.T., 10/17/13, at 147-

49. Tammy Eastwood testified that she observed Semenza kissing N.B. on

the street outside of the police department. The kiss “started off as a slow,

passionate kiss, hands going up and down, again, above the clothes, below

the clothes.”8 N.T., 10/18/13 at 214. Walter Chiavicci, another firefighter,

testified that he in the fall of 2004, observed Semenza and N.B. in the

firehouse kitchen with his hand up her skirt. N.T., 10/17/13, at 267, 280.

Steve Lowe, a former policeman, testified that on Halloween evening in 2004

(October 31, 2004), he observed Semenza and N.B. close together on the

couch in the firehouse with a blanket covering them. Id. at 288-89. Lowe

also testified that he heard Semenza tell N.B. that he wanted to take her

next door and have sex with her, using the “f---” expletive. Id. at 291-92.

       Over     Semenza’s       objection,     the   trial   court   permitted   the

Commonwealth        to   present    M.K.S.’s     testimony   as   “common   scheme”
____________________________________________


8
  Eastwood gave conflicting testimony about the time that this event took
place. She stated in an interview with a police detective that this incident
took place in 2007, after N.B. turned 18 years old, but claimed during trial
that it took place in 2005. N.T., 10/18/13, at 220. If this event took place
after N.B. turned 18, it could not constitute corruption of minors. See 18
Pa.C.S. § 6301(a)(1) (requiring proof that defendant “corrupt[] or tend[] to
corrupt the morals of any minor less than 18 years of age”).




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evidence under Rule 404(b).            M.K.S. testified that she met Semenza in

January 2007.       N.T., 10/18/13, at 30.         Before meeting Semenza, M.K.S.

joined the military at age 17,9 went through basic and advanced individual

training, came home for two weeks, was deployed to Iraq, and returned to

the United States in 2006.         N.T., 10/18/13, at 25.        In January 2007, the

same month she met Semenza, she graduated from the Police Academy at

Lackawanna College.10 Id. at 25-26. The record does not explicitly disclose

M.K.S.’s age, but it is unlikely that she accomplished all of these milestones

before the age of eighteen. Thus, we find it all but certain that she was at

least eighteen, and no longer a minor, at the time she met Semenza.

       After M.K.S. met Semenza through mutual friends, she applied for a

position with the Old Forge Police Department.                  N.T., 10/18/13, at 26.

M.K.S. interviewed for a conditional position and received Semenza’s support

for hiring. Id. at 28-29. She was hired on a conditional basis. Id. at 28.

       Also in January 2007, M.K.S. had to travel to Harrisburg to take the

Municipal Police Officers Training Education Commission (“MPOTEC”) test,

and Semenza offered to take her.               Id. at 30, 37.    When they arrived in

____________________________________________


9
 We take judicial notice that an individual must reach age seventeen before
entering the United States military. 10 U.S.C. § 505.
10
   M.K.S. added that on unspecified dates, she “continued [her] degree” at
the University of Scranton and graduated with degrees in criminal justice
and psychology. N.T., 10/18/13, at 25. It is unclear from this testimony
when she started or finished college.



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Harrisburg, M.K.S. discovered that Semenza had obtained one room with

two beds. Id. at 30. That night, they slept in the same bed and had sexual

intercourse.    Id. at 30-31.   She testified that she felt trapped but had no

other choice than to stay with Semenza and drive home with him the

following day. Id. In her words, she passed her training test with “flying

colors”. Id. at 31.

      M.K.S. recalled one other sexual incident in the fall of 2008, over one

year later. N.T., 10/18/13, at 32, 37.      Semenza called her to meet for

coffee. Semenza picked her up, drove her to a dark road, where they had

sexual intercourse in the back of his vehicle. Id. at 32. Over this 1.5 year

time frame, M.K.S. believed that Semenza gave praise for her work and

privileges in the form of shift scheduling because they had sex. Id. at 32.

But after the second sexual liaison, she began to distance herself from

Semenza because she was in a committed relationship with another person.

Id. at 34-35.     He became angry, and her shifts declined. Id. at 33. The

evidence reflects, however, that her shifts might have declined for other

reasons.     First, she contracted cervical cancer which required medical

treatment.     Id.    She also informed Semenza that she planned to seek

employment with the Scranton Police Department, and Semenza explained

to her that he had to work other officers into the schedule because she was

leaving. Id. at 35.




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      Semenza testified in his own defense.           He denied penetrating N.B.

digitally as well as having indecent contact with her, exposing himself to her,

or kissing her.   N.T., 10/21/13, at 280-81.         He also denied the Zupons’

testimony that he shopped for lingerie with N.B. and the testimony of other

Commonwealth witnesses that he kissed N.B. romantically or groped her in a

sexual manner. Id. at 259-64. He admitted, however, that he had a sexual

relationship with M.K.S. Id. at 209.

      Relevance    is   the     threshold      for   admissibility   of   evidence.

Commonwealth v. Cook, 952 A.2d 594, 612 (Pa.2008).                    “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.”      Pa.R.E. 401.     “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.” Commonwealth v. Drumheller, 808 A.2d 893,

904 (Pa.2002).    “All relevant evidence is admissible, except as otherwise

provided by law. Evidence that is not relevant is not admissible.”          Pa.R.E.

402. In addition, “the 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.




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       “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.”

Pa.R.E. 404(b)(1). “Such evidence may be admissible for another purpose,”

however, “such as proving the existence of a common scheme, establishing

an individual’s motive, intent, or plan, or identifying a criminal defendant as

the perpetrator of the offense charged.” Pa.R.E. 404(b)(2).

       When ruling upon the admissibility of evidence under the common

scheme exception,

       the trial court must first examine the details and surrounding
       circumstances of each criminal incident[11] 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
____________________________________________


11
  Semenza’s first act of sexual intercourse with M.K.S. during their trip to
Harrisburg in January 2007 possibly was non-consensual and thus criminal,
because M.K.S. might have felt trapped into sharing the hotel room with
Semenza and having intercourse with him. It appears, however, that M.K.S.
consented to sexual intercourse with Semenza on the second occasion in
2008.

It is an interesting question whether uncharged misconduct must itself be
criminal in order to be admissible as common scheme evidence under Rule
404(b). Semenza, however, does not contend that his sexual relationship
with M.K.S. falls outside the bounds of common scheme evidence on the
ground that it was non-criminal. Because Semenza does not raise this
argument, we will not explore it further.



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     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. Tyson, -- A.3d --, 2015 WL 3609355, *3 (Pa.Super.,

June 10, 2015) (en banc) (emphasis added).        To clarify the definition of

“signature crimes,” our Supreme Court

     has often cited McCormick, Evidence, § 190 (1972 2d ed.),
     wherein evidence of other crimes is said to be admissible [to]
     ‘prove other like crimes by the accused so nearly identical in
     method as to earmark them as the handiwork of the accused.
     Here much more is demanded than the mere repeated
     commission of crimes of the same class, such as repeated
     burglaries or theft. The device used must be so unusual and
     distinctive as to be like a signature.’

Commonwealth v. Roney, 79 A.3d 595, 606 (Pa.2013). In short, common

scheme evidence is admissible “where the crimes are so related that proof of

one tends to prove the others.” Commonwealth v. Elliott, 700 A.2d 1243,

1249 (Pa.1997) (where defendant was accused of sexually assaulting and

killing young woman he approached outside a particular club at 4:30 a.m.,

evidence that defendant similarly preyed upon three other young women as

each of them left same club in early morning hours and then physically

and/or sexually assaulted them was admissible under common scheme

exception).

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      Review of multiple decisions from our Supreme Court and this Court

convinces us that evidence of Semenza’s affair with M.K.S. is inadmissible

under the common scheme exception to Rule 404(b). See Roney, supra;

Commonwealth v. Bryant,           530   A.2d   83   (Pa.1987)   (“Bryant    I”);

Commonwealth v. Bryant, 611 A.2d 703 (Pa.1992) (“Bryant II”);

Commonwealth v. Ross, 57 A.3d 85 (Pa.Super.2012) (en banc).

      In Roney, the defendant was convicted of first degree murder and

sentenced to death for shooting and killing a police officer in the course of a

robbery at a PNC Bank. During post-conviction proceedings, the defendant

argued that trial counsel was ineffective for failing to investigate and present

evidence suggesting that one Travis Hall participated in the bank robbery

and was the individual who shot the officer.        To support this claim, the

defendant averred that Hall (1) committed numerous armed robberies, some

involving financial establishments, within the same time frame and within a

similar geographical area as the PNC Bank robbery; (2) fired his gun during

some of the robberies; (3) received aid from accomplices during the

robberies; and (4) stole get-away vehicles for use in the robberies.        Our

Supreme Court held that the PCRA court properly found this evidence

inadmissible under the common scheme exception:

      [T]he PCRA court held that evidence of Hall’s other robberies did
      not come close to meeting the standard for admissibility as a
      common scheme, plan, or design ... [T]he PCRA court
      determined that none of Hall’s robberies had occurred at a bank;
      rather, his robberies had involved various entities, including a
      check cashing store, a restaurant, and armored trucks; that Hall

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      had never killed anyone in the course of his robberies; and that
      the robberies had been in the Philadelphia area generally, not in
      a specific area of the city ... The PCRA court concluded that
      Hall’s robberies exhibited ‘no unique facts’ that would ‘amount to
      a signature or [would] earmark the crimes as ‘the handiwork’ of
      Hall.” ... Rather, the PCRA court concluded, ‘[t]he robberies
      committed by Mr. Hall, sadly but realistically, reflect the type of
      violent crimes involving stolen vehicles, disguises, and firearms
      that occur so prevalently in modern day America.’

      The PCRA court’s determinations and conclusions summarized
      above are all supported by the record and free of legal error.
Id., 79 A.3d at 606.

      Bryant I and Bryant II involved the same defendant. At his first trial

(Bryant I), the defendant was convicted of first degree murder and

sentenced to death for beating an elderly woman, Edith Steckle, to death in

her   Philadelphia   home   during   a   burglary.   Steckle   never   regained

consciousness after the beating, and there were no eyewitnesses to the

incident or physical evidence recovered from the crime scene that

incriminated the defendant.    Several weeks after the crime, however, the

police found items belonging to Steckle (a television, radio and ring) in the

defendant’s residence. During trial, the Commonwealth introduced evidence

of a robbery committed by the defendant two months before the crime in

question at a residence four blocks away in which the defendant severely

beat an elderly woman, stole items from her house and defecated on her

floor. Our Supreme Court held that evidence of the other robbery was not

admissible as common scheme evidence:

      Granted, both of the crimes in question involved burglaries and
      physical assaults, but more is required than the mere repeated

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     commission of the same general class of crime... There may be
     some similarities to be perceived between the crimes, but those
     similarities are confined to relatively insignificant details that
     would likely be common elements regardless of who had
     committed the crimes. For example, both crimes occurred in the
     middle of the night, and both were perpetrated by individuals
     wearing dark jackets. It is, however, common for burglaries to
     occur at night, and it is certainly not unusual for persons to be
     seen wearing dark jackets. Similarly, both of the burglaries in
     question involved the ransacking of houses. Yet, in connection
     with domestic burglaries, it is most common that burglars are
     looking for goods to steal. A television, a radio, and a ring were
     stolen from the home of the present victim, but the record is
     silent as to what items, if any, were stolen in the course of the
     earlier crime. Nor can much significance be ascribed to the fact
     that the victims of both crimes were senior citizens living in the
     Germantown section of the City of Philadelphia. Senior citizens
     are frequently the victims of violent crimes, and this is
     particularly so in major urban areas such as the City of
     Philadelphia.

     A number of differences between the two crimes could also be
     noted, such as the fact that the perpetrator of the earlier crime
     defecated on the floor in the victim’s house whereas nothing
     comparable occurred in connection with the instant crime, but,
     inasmuch as features which the two crimes had in common were
     lacking, it is not necessary to further address such differences. It
     is clear that the circumstances surrounding the two crimes were
     not sufficiently similar as to render admissible the evidence of
     appellant’s role in the crime for which he was not presently being
     tried.

Id., 530 A.2d at 86.    The improper admission of evidence of the other

robbery mandated a new trial. Id. at 86.

     During the defendant’s second trial (Bryant II), the Commonwealth

introduced into evidence details of yet another crime that the defendant

committed in 1988, ten years after the assault against Steckle. In the 1988

offense, the defendant broke into a house on his street in which a pregnant


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23-year-old black female, Valerie Phillips, lived with her young son.       The

defendant beat Phillips on the head with his fists, dragged her upstairs to

her bedroom, told her to lie on her stomach and fondled her vagina. Phillips

screamed that she might deliver her baby since she was eight months

pregnant. The defendant stopped his assault, took thirty dollars in cash and

left the premises. The Commonwealth offered this evidence to persuade the

jury that the man that attacked Phillips was the same man who killed the

elderly female in the 1978 robbery. The jury convicted the defendant of first

degree murder, but the Supreme Court again reversed on the ground that

the crime against Phillips was inadmissible under a common scheme theory:

     [W]e cannot conclude that the factual predicates are so distinctly
     similar that one could naturally conclude that both crimes were
     perpetrated by the same individual. Although there exist[]
     general similarities, the elements of common scheme or design
     are lacking. It is true that both crimes occurred at approximately
     the same time of night and within a one and one-half block of
     the Appellant’s home. However, the victims’ ages varied
     drastically, in addition to the victims being of different races.
     Furthermore, the evidence was questionable as to whether []
     Steckle was sexually assaulted although [] Phillips was
     assaulted. It was also widely known that [] Steckle lived alone
     while [] Phillips lived with her three-year-old son. Furthermore,
     while [] Steckle was brutally and viciously injured in the face,
     head, body, arms and legs, [] Phillips was punched only in the
     head. [] Steckle was found lying on the ground floor, while []
     Phillips was dragged to the second-floor bedroom. Finally, a
     television, radio, and ring were taken from [] Steckle’s home,
     while only thirty dollars in cash was taken from [] Phillips even
     though a portable television and radio were in full sight of the
     burglar.

     While it is true that every element of the crimes need not be
     identical to constitute a ‘signature crime’, the details relied upon
     must be sufficiently unique to suggest that the crimes were

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     committed by the same person. Based upon the similarities and
     differences between these two crimes and the lack of any
     uniqueness, we would be hard pressed to conclude that the
     same individual committed both crimes.

Bryant II, 611 A.2d at 706.

     Finally, in Ross, this Court held, in the course of vacating the

defendant’s conviction for murdering his girlfriend, that the trial court

abused its discretion by allowing the Commonwealth to introduce the

testimony of three of Ross’ former romantic partners regarding instances of

domestic abuse as common scheme evidence:

     The testimony of [the three former partners] did not establish a
     pattern of conduct on Ross’ part so distinctive that ‘proof of one
     tends to prove the others.’ ... Instead, the prior bad acts
     testimony demonstrated that Ross was a domestic abuser of
     women with whom he was involved in on-going romantic
     relationships, and did not show a unique ‘signature’ modus
     operandi relevant to Miller’s murder. Indeed, the profound
     dissimilarity in the level of brutality inflicted on Miller, along with
     the bite on her breast and the extensive use of duct tape to bind
     her, have no parallel to the incidents of domestic abuse
     described by [the three former partners] and weigh strongly
     against any inference that proof of his domestic abuse tended to
     prove he murdered Miller ... [T]he testimony of [the three
     former partners] was used to establish that Ross was an abusive
     man who in the past was physically and sexually abusive to his
     romantic partners so that the improper inference could be drawn
     that he was capable of, and had the propensity for, committing
     the types of grotesque acts of physical and sexual abuse inflicted
     upon Miller resulting in her death.

Id. at 104-05.

     These decisions demonstrate that uncharged conduct is not admissible

to prove a common scheme except when it shares unique features with the

charged   offenses   that   reflect   the   defendant’s   “signature”.   General

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similarities or insignificant similarities are insufficient; “more is required than

the mere repeated commission of the same general class of crime.” Bryant

I, 530 A.2d at 86.

      Certain general similarities exist between Semenza’s relationships with

N.B. and with M.K.S.: Semenza was substantially older than both females,

hired both females after interviewing them, and was their superior in the

workplace.    These similarities, however, are not sufficiently unique to

constitute Semenza’s “signature”.          To the contrary, these facts are

commonplace in many, and perhaps most, sexual harassment cases that

arise in the workplace.

      The differences between Semenza’s relationships with N.B. and M.K.S.

are more pronounced than their similarities. When M.K.S. met Semenza, it

is virtually certain that she was no longer a minor, because she had served

in the military and had graduated the Police Academy; N.B., on the other

hand, was only 15 years old and a high school sophomore when she met

Semenza. The nature of Semenza’s sexual contact with M.K.S. differed from

his alleged sexual contact with N.B.             Whereas Semenza had vaginal

intercourse   with   M.K.S.   twice,   N.B.     claimed   that   Semenza   digitally

penetrated her twice, had her touch his penis once, and kissed and fondled

her on other occasions. Semenza had sex with M.K.S. outside of her place

of employment, in a hotel or in an automobile; N.B. claimed that Semenza

digitally penetrated her and had her touch his penis in the firehouse. N.B.


                                       - 18 -
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alleged that Semenza watched her take a shower in the firehouse; Semenza

never watched M.K.S. shower.            N.B. wanted a romantic relationship with

Semenza; M.K.S. did not. Semenza gave gifts to N.B. such as a Claddagh

ring and Maltese Cross; he did not give similar gifts to M.K.S.                  M.K.S.

accused Semenza of withdrawing scheduling privileges when their physical

relationship ended; N.B. did not accuse Semenza of withdrawing any

privileges when their relationship faded away.

       In its attempt to rebut Semenza’s Rule 404(b) argument, the

Commonwealth exaggerates the similarities between Semenza’s relationship

with N.B. and his relationship with M.K.S. For example, the Commonwealth

claims as a similarity that both N.B. and M.K.S. are young Caucasian

females. This overlooks that N.B. was only fifteen when she met Semenza

while M.K.S. was almost certainly an adult and clearly more mature than

N.B. in terms of experience, having served in the military and graduated the

Police Academy.       Furthermore, the overwhelming majority of Old Forge’s

population is Caucasian,12 so as a statistical matter, all persons with whom

Semenza      interacted    were     virtually   certain   to   be   Caucasian.     The

Commonwealth also claims that both women spent more time at work than

____________________________________________


12
   We take judicial notice that the 2010 census shows that the population in
Old Forge is 96.9% Caucasian. Cf. Wings Field Preservation Associates,
L.P. v. Com., Dept. of Trans., 776 A.2d 311, 318 n. 14 (Pa.Cmwlth.2001)
(taking judicial notice of population of 1998 census estimate of Bucks
County’s population).



                                          - 19 -
J-S26043-15


was necessary for their positions. This suggests a pattern of the females,

not of Semenza’s. The Commonwealth also asserts that Semenza’s contact

with the females centered around the workplace or work-related activities.

This is both inaccurate and vague – inaccurate because M.K.S.’ second

sexual incident with Semenza took place in a car on a deserted road instead

of in or near the workplace, vague because “work-related activities” includes

too broad a range of subjects to be helpful in determining whether

Semenza’s conduct had a signature.       Next, the Commonwealth contends

that both women testified that Semenza was responsible for upgrades in

equipment. We cannot find any testimony of M.K.S. to this effect. Finally,

the Commonwealth claims that there was an overlap in time between

Semenza’s relationships with N.B. and M.K.S.          We see no overlap:

Semenza’s alleged sexual contact with N.B. ended in March 2006, almost

one year before his sexual contact with M.K.S.

     Because many of the alleged similarities between Semenza’s treatment

of N.B. and M.K.S. are either generic or exaggerated, and because there are

many dissimilarities in Semenza’s treatment of these individuals, we

conclude that the evidence of Semenza’s relationship with M.K.S. is

inadmissible under the common scheme exception to Rule 404(b). We also

conclude   that   this   evidence   prejudiced   Semenza’s    defense.     The

Commonwealth highlighted this evidence in its closing argument, stating:




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J-S26043-15


       I submit to you that as much as [Semenza] and defense counsel
       want[] to hide from [M.K.S.] that [M.K.S.’s] testimony could not
       have been more crucial to this trial. Second Lieutenant [M.K.S.]
       took that stand and told you what I submit to you is her worst
       nightmare, a combat veteran that had to admit to 14 strangers
       that she let herself be put in a position with that man that she
       trusted [and] that she felt trapped. He helped her get the job,
       he was going to be her boss, he drove her there, the night
       before the test that she would need to pass in order to get the
       job. It was only a conditional offer of employment … [M.K.S.]
       told you that. If she doesn’t pass that test[,] it’s a no go. That’s
       the night … that this defendant used his position to have sex
       with her.[13] And the relationship continued.

N.T., 10/22/13, at 141 (emphasis added).               The Commonwealth continued

that Semenza’s conduct toward M.K.S. constituted an abuse of trust: “Doing

the right thing for someone else for your own selfish gain[,] it’s not doing

the right thing, it’s abusing your trust.            It’s abusing the position.     It’s

abusing the trust that people have in you.” Id. at 142. Concededly, (1) the

trial court gave a limiting instruction cautioning the jury to use evidence

about M.K.S. solely to determine whether a common scheme existed

between the charges and Semenza’s conduct towards M.K.S.; (2) the jury

acquitted Semenza on three of the five charges, and (3) the Commonwealth

presented evidence from witnesses other than M.K.S. -- albeit not

overwhelming       evidence     --   that      supported   Semenza’s   conviction   for
____________________________________________


13
   In addition to highlighting this evidence, the Commonwealth might also
have distorted it. The Commonwealth seemed to suggest that Semenza had
some control over whether M.K.S. passed or failed the MPOTEC test. The
record does not indicate, however, whether the MPOTEC test had subjective
components whose outcome Semenza could influence, or whether it was a
standardized objective test beyond Semenza’s control.



                                            - 21 -
J-S26043-15


corruption of minors. Nevertheless, M.K.S.’s testimony, combined with the

Commonwealth’s closing argument that M.K.S.’s testimony “could not have

been more crucial to this trial,” might well have spelled the difference

between the mixed verdict that the jury returned and acquittal on all counts.

See Commonwealth v. Walter, 849 A.2d 265, 268-70 (Pa.Super.2004)

(new trial required in prosecution for first degree murder of infant due to

improper admission of prior bad acts evidence that infant had prior injury to

his leg caused by twisting of limb, together with prosecutor’s closing

argument referring to that evidence and stating that infant had fractures

that were consistent with how defendant said he carried infant; defendant

could not be linked to infant’s prior injury, and prosecutor’s argument clearly

and improperly suggested that defendant was responsible for prior injury).

      In light of our remand for a new trial, we need not address Semenza’s

objections to his sentence in his third and fourth issues on appeal. On the

other hand, we will address Semenza’s second issue on appeal, a challenge

to the jury instruction defining corruption of minors, so that it does not arise

again on remand.     See Drum v. Shaull Equipment & Supply Co., 787

A.2d 1050, 1059 (Pa.Super.2001) (“other issues remain which were raised

by Appellants on appeal, have been briefed adequately, and are likely to

recur on remand. For the guidance of the parties and the trial court,

therefore, we will address these issues”).




                                     - 22 -
J-S26043-15


      During trial, and in this appeal, Semenza objected to the following

portion of the jury instruction that the trial court gave concerning corruption

of minors:

      It is not necessary for the Commonwealth to prove that a
      minor’s morals were actually corrupted or changed in any way. It
      is sufficient that you find beyond a reasonable doubt that the
      defendant’s acts tended to corrupt the morals of a minor. The
      Courts of Pennsylvania have held that actions that tend to
      corrupt the morals of a minor are those that would offend the
      common sense of the community and the sense of decency,
      propriety and morality which most people entertain.

N.T., 10/22/14, at 172-173 (emphasis added). According to Semenza, the

corruption of minors instruction should have told the jury to examine

whether any “sexual contact” corrupted or tended to corrupt the morals of a

minor, not whether any “act” corrupted or tended to corrupt the minor’s

morals. Use of “act”, Semenza insisted, improperly expanded what conduct

the jury could consider and invited them to apply its own arbitrary standards

in its deliberations. Consequently, said Semenza, the trial court permitted

the jury to find him guilty for such innocuous acts as spending a lot of time

with N.B. at the firehouse or purchasing gifts for her.

      When evaluating the propriety of jury instructions,

      this Court will look to the instructions as a whole, and not simply
      isolated portions, to determine if the instructions were improper.
      We further note that, it is an unquestionable maxim of law in
      this Commonwealth that a trial court has broad discretion in
      phrasing its instructions, and may choose its own wording so
      long as the law is clearly, adequately, and accurately presented
      to the jury for its consideration. Only where there is an abuse of
      discretion or an inaccurate statement of the law is there
      reversible error.


                                     - 23 -
J-S26043-15


Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa.Super.2014).

      We conclude that the trial court accurately and adequately presented

the law of corruption of minors in its jury instruction. Contrary to Semenza’s

strenuous argument, the corruption of minors statute explicitly requires the

jury to examine the defendant’s “acts”.       See 18 Pa.C.S. § 6301(a)(1)(i)

(“whoever, being of the age of 18 years and upwards, by any act corrupts or

tends to corrupt the morals of any minor less than 18 years of age ...

commits a misdemeanor of the first degree”) (emphasis added). “Any act”

extends   further   than   sexual   misconduct.    See   Commonwealth       v.

Meszaros, 168 A.2d 781, 782 (Pa.Super.1961) (“‘tending to corrupt,’ like

‘contributing to delinquency,’ is a broad term involving conduct toward a

child in an unlimited variety of ways which tends to produce or to encourage

or to continue conduct of the child which would amount to delinquent

conduct”). Conversely, section 6301 does not mention “sexual conduct”, so

it is questionable whether this term belongs in a jury instruction on

corruption of minors.

      Moreover, the final sentence of the passage in question, which defines

“actions that tend to corrupt the morals of a minor” as “those that would

offend the common sense of the community and the sense of decency,

propriety and morality which most people entertain,” is completely proper,

for we have used this very language in multiple decisions to clarify the

offense of corruption of minors. As we held last year:


                                     - 24 -
J-S26043-15


       in deciding what conduct can be said to corrupt the morals of a
       minor, the common sense of the community, as well as the
       sense of decency, propriety and the morality which most people
       entertain is sufficient to apply the statute to each particular
       case, and to individuate what particular conduct is rendered
       criminal by it.

Commonwealth v. Slocum, 86 A.3d 272, 277 (Pa.Super.2014) (quoting

Commonwealth           v.   Pankraz,     554   A.2d   974,   977   (Pa.Super.1989);

Commonwealth v. Randall, 133 A.2d 276, 280 (Pa.Super.1957)).

       Based on Semenza’s meritorious argument in his first issue on appeal,

we reverse and remand for a new trial.             We find no merit in Semenza’s

second argument on appeal. We do not address Semenza’s third and fourth

arguments due to our disposition of his first argument.

       Judgment of sentence vacated. Case remanded for a new trial.14

Jurisdiction relinquished.




____________________________________________


14
   On September 4, 2015, we issued an unpublished memorandum in this
appeal. On October 13, 2015, we ordered the unpublished memorandum
withdrawn, and we now replace it with the present opinion.



                                          - 25 -
