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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA          :     IN THE SUPERIOR COURT OF
                                      :           PENNSYLVANIA
                 v.                   :
                                      :
CHARLES J. KIRKPATRICK,               :          No. 618 WDA 2014
                                      :
                      Appellant       :


         Appeal from the Judgment of Sentence, March 25, 2014,
              in the Court of Common Pleas of Erie County
            Criminal Division at No. CP-25-CR-0001133-2013


COMMONWEALTH OF PENNSYLVANIA          :     IN THE SUPERIOR COURT OF
                                      :           PENNSYLVANIA
                 v.                   :
                                      :
CHARLES J. KIRKPATRICK,               :          No. 619 WDA 2014
                                      :
                      Appellant       :


         Appeal from the Judgment of Sentence, March 25, 2014,
              in the Court of Common Pleas of Erie County
            Criminal Division at No. CP-25-CR-0002084-2013


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND WECHT, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED APRIL 23, 2015

     Appellant, Charles J. Kirkpatrick, appeals from the judgment of

sentence entered on March 25, 2014, in the Court of Common Pleas of Erie

County. Appellant’s conviction stems from allegations made on two separate

occasions and charged on two dockets.     Following a two-day jury trial on

both dockets, appellant was convicted of rape of a child, corruption of
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minors, endangering the welfare of a child, and sexual assault at Docket

No. 1133 of 2013. At Docket No. 2084 of 2013, appellant was convicted of

rape/person less than 13 years of age, sexual assault, indecent assault

without consent of another, corruption of minors, endangering the welfare of

a child and aggravated indecent assault without consent of another.

Appellant was sentenced to an aggregate term of incarceration of 21 to

42 years on both dockets. We affirm.

     At Docket No. 1133 of 2013, appellant was convicted of raping his

12 year old step-granddaughter, H.S., on January 13, 2013. The day after

she was raped by appellant while sleeping over at his home, H.S. told her

therapist what had occurred.     Detective Sergeant John Holmes of the

Erie Police Department interviewed appellant on February 20, 2013. During

his videotaped statement, appellant admitted to raping H.S.

     At Docket No. 2084 of 2013, appellant was convicted of repeatedly

raping and assaulting his step-granddaughter, J.H., beginning in 1999 and

continuing through 2001. J.H. was 10 years old when these assaults began.

In 2002, J.H. told her family and the police that appellant was touching her

inappropriately; however, she was too afraid to tell them the full extent of

the assaults.   J.H.’s mother decided not to proceed with charges against

appellant because J.H. was facing serious health issues and pending




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surgery.1 In 2013, J.H. learned of appellant’s second victim, and decided to

proceed with her case.

     On November 7, 2013, appellant filed a motion for separate trials

which was denied on November 14, 2013.2 Appellant was convicted of the

aforementioned crimes on November 22, 2013.           The trial court ordered a

sexual violent predator (“SVP”) assessment.       On November 25, 2013,

appellant filed a motion for a new trial which was denied on November 27,

2013. Appellant’s SVP hearing was held on March 25, 2014, and the trial

court found appellant was a sexually violent predator.          Appellant was

thereafter sentenced to an aggregate term of imprisonment of 31 to

42 years. Appellant did not file a post-sentence motion at either docket.

     A timely notice of appeal was filed, and appellant complied with the

trial court’s order to file a concise statement of errors complained of on

appeal. Appellant raises two issues for our review:

           I.    Whether the trial court abused its discretion in
                 denying Appellant’s Motion in Limine?

           II.   Whether the appellant’s sentence is manifestly
                 excessive,   clearly     unreasonable     and
                 inconsistent with the objectives of the
                 Sentencing Code?

1
  A huge mass was discovered in J.H.’s neck. (Notes of testimony, 11/22/13
at 34-35.)
2
  In his motion for separate trials, appellant alleged that the requirements
for the joinder of offenses charged in separate informations were not met.
See Pa.R.Crim.P. 582. Appellant’s issue on appeal concerns the admission
of appellant’s confession in one docket as unfairly prejudicial to the
allegations raised in the second docket.


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Appellant’s brief at 4.

      In his first argument, appellant challenges the trial court’s ruling on his

motion in limine. Prior to the start of trial, defense counsel made a motion

in limine to suppress the admission of appellant’s confession of raping H.S.

during trial as unfairly prejudicial to the allegations made at Docket No.

2084 of 2013 involving J.H. In denying defense counsel’s motion in limine,

the trial court opined, “I don’t see the prejudice as to both dockets.” (Notes

of testimony, 11/21/13 at 9-10.)

      A motion in limine is a mechanism for obtaining a ruling on the

admissibility   of   evidence   prior    to   the   evidence    being   offered.

Commonwealth v. Lockcuff, 813 A.2d 857, 860 (Pa.Super. 2002), appeal

denied, 825 A.2d 638 (Pa. 2003).

            When reviewing the denial of a motion in limine, we
            apply an evidentiary abuse of discretion standard of
            review. See Commonwealth v. Zugay, 2000 PA
            Super 15, 745 A.2d 639 (Pa.Super.), appeal
            denied, 568 Pa. 662, 795 A.2d 976 (Pa.2000)
            (explaining that because a motion in limine is a
            procedure for obtaining a ruling on the admissibility
            of evidence prior to trial, which is similar to a ruling
            on a motion to suppress evidence, our standard of
            review of a motion in limine is the same as that of a
            motion to suppress).

Commonwealth v. Stokes 78 A.3d 644, 654 (Pa.Super. 2013), appeal

denied, 89 A.3d 661 (Pa. 2014).

      The admission of evidence is committed to the sound discretion of the

trial court, and a trial court’s ruling regarding the admission of evidence will


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not   be   disturbed   on   appeal   “unless     that   ruling   reflects   ‘manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support to be clearly erroneous.’” Id. quoting Commonwealth v. Einhorn,

911 A.2d 960, 972 (Pa.Super. 2006), appeal denied, 920 A.2d 831 (Pa.

2007).

            The threshold inquiry with admission of evidence is
            whether the evidence is relevant.         “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 the existence of a material
            fact.” Commonwealth v. Spiewak, 533 Pa. 1, 8,
            617 A.2d 696, 699 (1992). In addition, evidence is
            only admissible where the probative value of the
            evidence     outweighs      its  prejudicial   impact.
            Commonwealth v. Story, 476 Pa. 391, 383 A.2d
            155 (1978).

Stokes, supra.

      In his brief, appellant argues the trial court improperly admitted

evidence that in any other regard would have never been heard by the jury,

absent appellant taking the stand. (Appellant’s brief at 14). Appellant poses

the question, “Had the Appellant plead guilty to the one charge while going

to trial on another, evidence would have been precluded by the rules of

evidence. Why then should the court permit the testimony of one admission

to support the case of another?” (Id.)

      Regarding the admissibility of a defendant’s other crimes in a

consolidated case, it is well established that




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           [e]vidence of distinct crimes is inadmissible solely to
           demonstrate a defendant’s criminal tendencies.
           Such evidence is admissible, however, to show a
           common plan, scheme or design embracing
           commission of multiple crimes, or to establish the
           identity of the perpetrator, so long as proof of one
           crime tends to prove the others. This will be true
           when there are shared similarities in the details of
           each crime.

Commonwealth v. Andrulewicz, 911 A.2d 162, 168 (Pa.Super. 2006),

appeal denied, 926 A.2d 972 (Pa. 2007); see also Pa.R.E. 404(b).3

     The Commonwealth argues that the circumstances in each case

demonstrate the common plan or scheme exception of Pa.R.E. 404(b)(2).

The Pennsylvania Rules of Evidence prohibit the use of other crimes, wrongs,


3
           Rule 404. Character Evidence; Crimes or Other
           Acts

           (b)   Crimes, Wrongs or Other Acts.

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

                 (2)   Permitted Uses.       This evidence
                       may be admissible for another
                       purpose, such as proving motive,
                       opportunity, intent, preparation,
                       plan, knowledge, identity, absence
                       of mistake, or lack of accident. In
                       a criminal case this evidence is
                       admissible only if the probative
                       value of the evidence outweighs its
                       potential for unfair prejudice.


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or acts to show that the defendant acted in conformity when committing the

instant crime.      Pa.R.E. 404(b)(1).      However, such evidence may be

admissible for other purposes, including but not limited to, proof of motive,

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

mistake or accident.” Pa.R.E. 404(b)(2). When a party offers such evidence

for those permissible reasons, the trial court may admit this evidence if it

determines the probative value outweighs its potential prejudicial effect. Id.

Factors to be considered in weighing the probative value of evidence against

its prejudicial effect include:

              . . . the strength of evidence as to the commission of
              the other crime, the similarities between the crimes,
              the interval of time that has elapsed between the
              crimes, the need for the evidence, the efficacy of
              alternative proof, and the degree to which the
              evidence      probably   will  rouse    the  jury   to
              overmastering hostility.

Commonwealth v. Page, 965 A.2d 1212, 1221 (Pa.Super. 2009), appeal

denied, 74 A.3d 125 (Pa. 2013), citing McCormick, Evidence, § 190 (6 th ed.

2006).

         Instantly, both victims were of similar ages when the assaults took

place.     Both victims were step-granddaughters of appellant and were

assaulted in his home where they were staying overnight, and the sexual

conduct was similar. This was more than sufficient to satisfy the common

plan or scheme requirements of Pa.R.E. 404(b).        See Commonwealth v.

Aikens, 990 A.2d 1181 (Pa.Super. 2010), appeal denied, 4 A.3d 157 (Pa.



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2010) (Evidence of defendant’s prior sexual abuse of his daughter was

admissible to show a common scheme, design, or plan in prosecution for

corruption of a minor, endangering the welfare of a child and indecent

assault; both victims were defendant’s biological daughters, both victims

were of a similar age when the abuse occurred, defendant initiated the

contact with both victims during an overnight visit to his apartment,

defendant showed both victims a pornographic movie, and defendant raped

his older daughter but did not rape his younger daughter because she

stopped him from disrobing her); Commonwealth v. O’Brien, 836 A.2d

966 (Pa.Super. 2003), appeal denied, 845 A.2d 817 (Pa. 2004) (the

evidence was sufficient to show a common scheme or plan where the victims

were the same race, the victims were prepubescent, the victims knew the

defendant, the crimes took place in the same location, and the crimes

involved similar sexual activities).

      Next, we turn to whether the probative value of appellant’s confession

was outweighed by its prejudicial effect. Our supreme court has held that

“[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).

      In the instant matter, the Commonwealth had to prove that appellant

raped and sexually assaulted H.S. and J.H. Appellant admitted raping H.S.

to Detective Homes in a videotaped statement; however, there was no



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mention of J.H. at the time of the interview.    Defense counsel argued the

statement appellant made to the detective was not reliable.         (Notes of

testimony, 11/22/13 at 135.)      Our review indicates appellant made two

contradictory 20-minute statements during the same interview; there was a

one and one-half hour time lapse between the statements.            (Notes of

testimony, 11/21/13 at 89.)     Additionally, we note there was no physical

corroborating medical evidence for either victim.

      Plainly, the admission of the statement appears prejudicial as to the

case involving J.H.    However, given the fact that appellant made two

statements regarding H.S., one denying the rape and one admitting the

rape, along with the lack of any medical evidence in either case, we do not

find the admission of this statement to be unduly prejudicial.     Hence, the

trial court did not abuse its discretion when it denied appellant’s motion

in limine.

      As to appellant’s claim that the jury would have never heard evidence

of both crimes if he had plead guilty in one and gone to trial on the other,

we reject this assertion.    Pennsylvania Rule of Criminal Procedure 582

provides that joinder of offenses charged in separate indictments or

informations is permitted when “the evidence of each of the offenses would

be admissible in a separate trial for the other and is capable of separation by

the jury so that there is no danger of confusion.” Pa.R.Crim.P. 582(A)(1)(a).

The “[c]onsolidation of indictments requires that there are shared similarities



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in the details of each crime.” Commonwealth v. Smith, 47 A.3d 862, 867

(Pa.Super. 2012).        Here, the indictments were properly joined and the

evidence at one docket would have been admitted at a separate trial on the

other based on the similarities between the two fact patterns.

      Next, appellant complains his sentence is manifestly excessive and

clearly unreasonable.       Appellant’s challenge goes to the discretionary

aspects of his sentence.      In order to preserve an issue pertaining to the

discretionary aspects of sentence, the issue must first be raised either at the

time of sentencing, or in a post-sentence motion.        Commonwealth v.

McAfee, 849 A.2d 270, 275 (Pa.Super. 2004), appeal denied, 860 A.2d

122 (Pa. 2004). Appellant failed to do either; consequently, the sentencing

judge did not have an opportunity to reconsider or modify his sentence.

Accordingly, the claim is waived.     See Commonwealth v. Reeves, 778

A.2d 691, 692-693 (Pa.Super. 2001); Pa.R.A.P., Rule 302(a), 42 Pa.C.S.A.

(issues not raised in the lower court are waived and cannot be raised for the

first time on appeal).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/23/2015



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