J-S44034-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL J. FLYNN : : Appellant : No. 293 EDA 2024
Appeal from the Judgment of Sentence Entered December 15, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009050-2018
BEFORE: NICHOLS, J., MURRAY, J., and LANE, J.
MEMORANDUM BY LANE, J.: FILED MARCH 24, 2025
Michael J. Flynn (“Flynn”) appeals from the judgment of sentence
imposed following his jury convictions of unlawful contact with a minor,
criminal use of communication facility, criminal solicitation to commit
statutory sexual assault,1 and criminal solicitation to commit involuntary
deviate sexual intercourse (“IDSI”).2 We affirm.
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1 18 Pa.C.S.A. §§ 6318(a)(1), 7512(a), 902(a), 3122.1.
2 In the final jury charge at trial, and in its opinion, the trial court referred to
the offense of IDSI “with a child over the age of [twelve] and under the age of [sixteen].” N.T., 7/20/23, at 79; see also Trial Court Opinion, 6/24/24, at 4. While the IDSI statute does include subsections for child victims, their sole references to age are to “a complainant who is less than [thirteen] years of age.” 18 Pa.C.S.A. § 3123(b), (c).
Meanwhile, we note the post-trial “Trial and Dismissal Form” cites the solicitation to commit IDSI charge with 18 Pa.C.S.A. § 3123(a)(7). This (Footnote Continued Next Page) J-S44034-24
On appeal, the parties do not dispute the underlying facts. The trial
court summarized the relevant evidence presented at trial:
. . . Special Agent Daniel Block (“Agent Block”) was assigned to the child predator section of the Pennsylvania Attorney General’s office[.] As part of his online undercover investigations, Agent Block create[d] covert profiles on Grindr, a social media/phone application “where men are seeking other men for quick hook-ups, or sexual hook-ups.” Although the minimum age for users on Grindr was [eighteen] years old, it was well-known that minors used Grindr.
Agent Block created a covert profile on [Grindr, representing that] he was [eighteen] years old[.]
[On] the morning of December 1, 2018, Agent Block received messages to his covert profile from a Grindr account named “I Have Issues” (an account discovered later that day to belong to Flynn). Agent Block responded and began a conversation with “I Have Issues,” preserving the messages he received by taking screenshots of his phone.
During the course of the online conversation[, Agent Block stated:] “Oh I’m 14 jus being st8 I’m 5’8 140 [a]nd White.” [sic] Flynn responded, “Your last message did not come through. I don’t want you to repeat it.” Agent Block replied, “Wait. Huh? I’m just beingstr8 I’m 14 is all.” [sic].
Thereafter, Flynn arranged to meet the purported child at a CVS in Northeast Philadelphia at [6:00] p.m. They agreed that Flynn would pay $150 for four hours of “[f]ucking sucking kissing cuddling showering and . . . ” at his home. Agent Block responded, “How am I gonna get to ur door. I can’t drive for 2 more years.”
subsection applies when the complainant “is less than [sixteen] years of age[,] the [defendant] is four or more years older[,] and the complainant and [defendant] are not married to each other.” 18 Pa.C.S.A. § 3123(a)(7); see also Trial Disposition and Dismissal Form, 7/20/23, at 2.
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Trial Court Opinion, 6/26/24, at 1-2 (record citations and some brackets
omitted and paragraph break added).3 Added the FN to end of citation of TCO
At the scheduled meeting time, Agent Block and other law enforcement
officers went to the CVS store. Flynn was present and looked around “as if he
were looking for someone, and repeatedly check[ed] his cell phone.” Id. at
2. “Agent Block received a message from ‘I Have Issues’ while inside the
store[,] indicating that he could not find the purported child. The entire Grindr
conversation with ‘I Have Issues’ then disappeared because Flynn deleted the
conversation.” Id. at 2-3.
The officers stopped Flynn. Flynn agreed to a search of his cell phone,
which showed “the Grindr application [was] open, and the ‘I Have Issues’
Grindr profile was present.” Id. at 3. However, “all the chats with Agent
Bock’s cover profile were gone.” Id. The officers arrested Flynn.
Flynn gave an audio-recorded statement to Agent Block,
“acknowledg[ing] he used Grindr on his cell phone that day to try to engage
in certain explicit sex acts with a male who indicated he was [fourteen] years
old, and, when he could not locate the child at the CVS, he became nervous
and deleted his Grindr messages.” Id. at 3.
3 For ease of review, when quoting the trial court’s opinion, we have shortened
the trial court’s references of “Mr. Flynn” to “Flynn.”
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The Commonwealth charged Flynn with unlawful contact with a minor,
criminal solicitation to commit statutory sexual assault, criminal solicitation to
commit IDSI, and criminal use of communication facility.
In July 2019, the Commonwealth filed a motion in limine to admit
Pa.R.E. 404(b) prior bad acts — namely evidence of Flynn’s 1976 conviction
for IDSI against a thirteen year-old boy, as well as the facts of that crime as
memorialized in his guilty plea proceeding. At this juncture, we note the trial
court, via four different Judges, addressed this issue repeatedly throughout
the pre-trial proceedings. First, in November 2020, the Honorable Jeffrey
Minehart heard argument and granted the Commonwealth’s Rule 404(b)
motion in full.
In May 2021, Flynn filed a motion to reconsider the trial court’s ruling.
On the day before trial, the Honorable Zachary Shaffer conducted a hearing
and denied Flynn’s reconsideration motion. However, “the Commonwealth
informed both the court and defense counsel it decided not to introduce
evidence of Flynn’s prior conviction unless [the] defense opened the door to
its introduction.” Trial Court Opinion, 6/26/24, at 4 (unnecessary
capitalization omitted). Flynn did not object. The trial court and the parties
then discussed “the boundaries with respect to admission of that evidence.”
Id. at 5. The trial court provided examples of defense testimony or argument
that would open the door: statements like, “I’ve never done anything to
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anyone;” “I’m not interested in children;” and “[T]his just [was] fantasy;” as
well as any mention of Flynn’s intent or “age specific stuff.” Id. at 5-7.
A jury trial commenced the following day. However, “the
Commonwealth unintentionally . . . project[ed] on a video screen” evidence
referring to his prior conviction. Trial Court Opinion, 6/26/24, at 7. The trial
court granted a mistrial without prejudice to the Commonwealth to retry
Flynn.4
The charges proceeded to a second jury trial in July 2023.
Approximately one week before trial, Flynn filed a motion to relitigate the Rule
404(b) motion. The Honorable Deborah Cianfrani conducted a hearing and
denied the motion.
On July 17, 2023, the day before Flynn’s retrial, both parties asked the
trial court, the Honorable Jennifer Schultz, to address the original November
2020 ruling and the May 2021 pretrial hearing. The trial court advised that it
would deem Flynn to have opened the door to the prior bad acts evidence if
he: discussed “anything about motive or . . . intent,” denied committing the
instant act or being “interested in” or “doing things to” children, or claimed he
was engaging in a fantasy. Trial Court Opinion, 6/26/24, at 8. Finally, the
4 Subsequently, Flynn filed a motion to dismiss the charges on the grounds of
double jeopardy. The trial court denied it, and Flynn filed a notice of appeal to this Court. On August 23, 2022, a panel of this Court denied relief and affirmed the order. See Commonwealth v. Flynn, 284 A.3d 940 (Pa. Super. 2022) (unpublished memorandum).
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parties agreed that if the defense did open the door, the Commonwealth would
present only evidence of Flynn’s past conviction, and not its underlying facts.
During opening argument to the jury, Flynn’s counsel argued:
. . . Flynn is the same age as my parents. So that is a generation that are not digital natives, right? . . .
I grew up in a house where there was . . . this saying, right, children stay out of grown folks’ business. So whenever there would be maybe a party, a phone call, some sort of activity, there was an understanding, and it only needed to be stated one time, that children stayed out of grown folks’ business. . . . That is how those generations understood things. It’s certainly how . . . Flynn understood things. He got on the grown folks’ app to have grown folks’ conversation with the understanding that children stay out of grown folks’ business.
N.T., 7/18/23, at 56 (emphasis and paragraph break added).
On cross examination of Agent Block, defense counsel asked whether,
when the agent posed as a fourteen-year-old boy on the app, Flynn asked him
about his parents, his school, any sports he played, his friends, or his sexual
experience. See id. at 159-160. Defense counsel also asked Agent Block
whether Flynn asked if he had a curfew, liked to play video games, was a
virgin, had a boyfriend or girlfriend, or had a Snapchat or Instagram account.
See id. at 160-61. Agent Block responded in the negative to each of these
questions, which spanned three pages of testimony. Additionally, defense
counsel asked Agent Block, “You would agree with me CVS [is not] exactly a
place where kids hang out?” Id. at 163. Agent Block responded that in his
experience, “kids have met all over the place with those types of people.” Id.
at 164.
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The Commonwealth argued to the trial court that Flynn opened the door
to admission of the prior bad acts evidence. The Commonwealth argued that
Flynn’s opening argument discussed his “expectation” that he was
communicating with adults on the Grindr app. N.T., 7/19/23, at 42.
Additionally, the Commonwealth claimed that Flynn’s line of questioning of
Agent Block implied that if Flynn believed he was communicating with a
fourteen-year-old boy, he would have asked questions about “a curfew, social
media applications, these hip things that [fourteen] year olds do.” N.T.,
7/19/23, at 46. Defense counsel responded that he did not open the door to
the evidence.5 Id. at 57.
5 On appeal, the Commonwealth avers Flynn has waived any challenge for appeal because he “failed to raise a contemporaneous objection, and indeed told the trial court he had no objection.” Commonwealth’s Brief at 9. The Commonwealth maintains that when the trial court ruled he had opened the door to the evidence, defense counsel stated, “That’s fine.” Id. at 10 (quoting N.T., 7/19/23, at 57).
We disagree with the Commonwealth’s characterization of the exchange. When it argued that defense counsel had opened the door to the evidence, defense counsel denied it. Counsel argued that: (1) with respect to the opening argument, “the whole conversation with Agent Block, you know, the [fourteen-year-old did not] come up until much later” [sic]; and (2) with respect to the cross-examination of Agent Block, the questions related to his expertise and would have shown “this was not actually a minor that he was speaking to.” Id. at 57. It was only after the trial court ruled to admit the evidence that defense counsel replied, “That’s fine.” Id.
After review of this exchange in its full and proper context, we disagree with the Commonwealth’s claim that Flynn failed to object. See Commonwealth v. Leaner, 202 A.3d 749, 781 (Pa. Super. 2019) (noting that lack of contemporaneous objection to evidentiary ruling results in waiver of issue on appeal).
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The trial court agreed with the Commonwealth, and ruled that Flynn
opened the door to the admission of the evidence. Accordingly, the
Commonwealth read aloud to the jury the following statement, presented as
a stipulation between the parties:
The Commonwealth and the Defense agree to the following facts. The defendant was previously found guilty of the crime of involuntary deviate sexual intercourse with a 13-year-old male child in 1976 in Philadelphia.
N.T., 7/20/23, at 14-15. The trial court instructed the jury, at the time of this
reading, as well as in its final jury charge, that the jury must consider the
evidence in only a limited way — to show Flynn’s intent during the underlying
events — and that the jury could not regard the evidence as showing he was
a person of bad character or had a criminal tendency, from which it would
infer guilt. See id. at 13, at 71-72.
Flynn did not testify or present any evidence. The jury found him guilty
of all charges.
On December 15, 2023, the trial court imposed an aggregate sentence
of twenty-five to fifty years’ imprisonment, to be followed by three years’
probation. The court also found Flynn was a sexually violent predator under
the Pennsylvania Sex Offender Registration and Notification Act. 6
Flynn filed a timely notice of appeal, as well as a court-ordered Pa.R.A.P.
1925(b) statement of errors complained of on appeal.
6 42 Pa.C.S.A. §§ 9799.10-9799.75.
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Flynn present one issue for our review: “. . . Did the trial court err in
permitting the jury to hear that . . . Flynn, on trial for solicitation to commit
[IDSI], had been convicted of the same crime in 1976 where on balance, the
evidence was more prejudicial than probative?” Flynn’s Brief at 2.
Flynn avers the trial court erred in admitting evidence of his prior
conviction of IDSI, because its potential for unfair prejudice outweighed its
probative value. We consider the applicable standard of review: “We review
a trial court’s decision to admit or deny evidence for abuse of discretion or
error of law. ‘Thus our standard of review is very narrow. To constitute
reversible error, an evidentiary ruling must not only be erroneous, but also
harmful or prejudicial to the complaining party.’” Leaner, 202 A.3d at 777
(citations omitted).
Pennsylvania Rule of Evidence 404(b)(1) provides: “Evidence of any
other crime, wrong, or 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.” Pa.R.E. 404(b)(1). However, such “evidence may be
admissible for another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of
accident. In a criminal case this evidence is admissible only if the probative
value of the evidence outweighs its potential for unfair prejudice.” Pa.R.E.
404(b)(2). “The purpose of this rule is to prevent unfair surprise, and to give
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the defendant reasonable time to prepare an objection to, or ready a rebuttal
for, such evidence.” Leaner, 202 A.3d at 777 (citation omitted).
On appeal, Flynn cites three of the trial court’s reasons for admitting the
Rule 404(b) evidence and challenges each one, as follows. First, Flynn claims
the trial court’s reasoning, “that the evidence was offered ‘for a legitimate
reason, i.e., his intent to commit the crimes charges,” merely explained “why
the evidence was relevant,” and not why it was admissible. Id. at 13
(emphasis added). Flynn further asserts “there was no . . . need for the prior
conviction to be admitted” because there was other evidence of his intent:
Agent Block’s testimony about, as well as screenshots of, their online
conversation; as well Flynn’s admission to police. Id. Second, Flynn
challenges the trial court’s observation “that the stipulation was a ‘short, two
sentence stipulation of fact prepared by the parties.’” Id. at 14. Flynn alleges
“[t]his reasoning is simply not relevant to [the] inquiry o whether the trial
court properly balanced the factors.” Id. Finally, Flynn denies the trial court’s
reasoning that its limiting instructions cured any prejudice. He contends that
the presumption — that a jury will follow a court’s instructions — “is not
inviolable,” and here, “the presumption was overcome by the damning nature
of the prior conviction.” Id. at 14-15. Flynn posits: “[A]s soon as the jury
heard that [he] had been convicted of the same crime, his odds of conviction
skyrocketed.” Id. at 15.
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In its opinion, the trial court extensively discussed the procedural history
surrounding the rulings on this Rule 404(b) evidence issue. In particular, the
trial court reviewed the parameters, discussed by prior jurists and accepted
by Flynn, as to what defense statements or argument would open the door
to the evidence. The trial court then primarily determined that Flynn, “at [his]
own peril, opened the door to admission of” the evidence. Trial Court Opinion,
6/26/24, at 14-15. In support, the court found Flynn’s opening argument
suggested that he “did not believe he was communicating with a minor when
he was messaging with Agent Block.” Id. at 14. The court also found Flynn’s
cross-examination of Agent Block “raised the question of whether [he] had
the intent to engage in sexual activities with a” fourteen-year-old. Id. Both
instances, the court found, specifically addressed his “intent to commit the
IDSI crime charged, despite receiving detailed guidance from the court that
such statements would open the door to admission of [his] prior conviction.”
Id. The court thus concluded admission of the evidence was proper.
Additionally, the trial court found the probative value of the Rule 404(b)
evidence outweighed any unfair prejudicial effect. The court considered that
all of the prosecution’s evidence is intended to “prejudice” the jury, and Rule
404 provides that prior bad acts evidence is admissible only if its probative
value outweighs its potential for unfair prejudice. Id. at 15. The court also
noted that it twice provided appropriate limiting instructions to the jury.
Finally, the trial court reasoned that any error was harmless, as the potential
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prejudice was de minimis, where the jury heard only that Flynn had a prior
conviction, but “did not hear any salacious information about the underlying
facts of that conviction.” Id. at 17-18.
After careful review of Flynn’s brief, we emphasize that he does not
present any challenge to the trial court’s finding that he himself opened the
door to the admission of the Rule 404(b) evidence. Flynn discusses, as did
the trial court, the multiple pre-trial discussions about the Commonwealth’s
agreement to not introduce the evidence unless the defense opened the door.
See Flynn’s Brief at 5. He acknowledges that at trial: the Commonwealth
moved to admit the evidence because his opening argument and cross-
examination of Agent Block opened the door; and the trial court agreed. See
id. at 6. However, Flynn presents no argument, factual or legal, contesting
the trial court’s finding that he opened the door to the evidence.
We note Flynn’s court-ordered Rule 1925(b) statement did raise a
challenge to the trial court’s ruling:
The court erred in finding that the defense opened the door for the introduction of [Flynn’s] 1976 conviction to demonstrate [Flynn’s] intent to commit the crimes based upon the defense's opening statement and cross examination of Agent Block.
Supplemental Statement of Errors Complained of on Appeal, 3/14/24, at 2
(emphasis added). However, he has abandoned this claim on appeal. In the
absence of any claim that the trial court’s evidentiary ruling was an error or
abuse of discretion, we decline to disturb it. On this basis alone, we may
affirm the judgment of sentence.
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Additionally, however, we agree with the trial court that its limiting
instructions to the jury cured any potential for prejudice. The court specifically
instructed the jury, at the time of the reading of the stipulation as well as in
the final charge, that the Commonwealth’s limited purpose for introducing the
evidence was to show Flynn’s intent at the time of the underlying incident,
and the jury could not consider it as evidence of his bad character or criminal
tendencies. See N.T., 7/20/23, at 13, 71-72. “The law presumes the jury
will follow the instructions of the court.” Commonwealth v. Conte, 198 A.3d
1169, 1178 (Pa. Super. 2018). Flynn’s unsubstantiated argument to the
contrary does not merit relief.
Finally, we agree with the trial court that even if its evidentiary ruling
were in error, the error was harmless. This Court has explained:
In the event of an erroneous admission of evidence, a verdict can still be sustained if the error was harmless. An error is harmless if it could not have contributed to the verdict, or stated conversely, an error cannot be harmless if there is a reasonable possibility the error might have contributed to the conviction. [Our Supreme Court has] found harmless error where:
(1) the error did not prejudice the defendant or the prejudice was de minimis;
(2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or
(3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.
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The Commonwealth has the burden of proving harmless error beyond a reasonable doubt.
Commonwealth v. Yocolano, 169 A.3d 47, 53 (Pa. Super. 2017) (citation
omitted).
The trial court summarized the Commonwealth’s remaining, properly
presented evidence against Flynn: (1) Agent Block’s testimony about his
online communications with Flynn; (2) seventeen pages of screenshots Agent
Block preserved from the day he communicated with Flynn; (3) Agent Block’s
messages telling Flynn that he was fourteen years old, and Flynn’s response
to him not “to repeat it;” (4) Flynn’s message to Agent Block, while inside the
CVS store, that he could not find the purported child; (5) the officers’
discovery of the account, “I Have Issues,” on the open Grindr app on Flynn’s
phone; and (6) Flynn’s audio-recorded confession to the police, that “he used
Grindr on his cell phone that day to try to engage in certain explicit sex acts
with a male who indicated he was [fourteen] years old.” Trial Court Opinion,
6/26/24, at 2-3. We agree with the trial court that the above “properly
admitted and uncontradicted evidence of guilt was so overwhelming and the
prejudicial effect of the error was so insignificant by comparison that [any]
error could not have contributed to the verdict.” Yocolano, 169 A.3d at 53.
Furthermore, as the trial court aptly pointed out, “[a]ll of the prosecution’s
evidence is intended to prejudice the defense.” Commonwealth v. Giles,
456 A.2d 1356, 1359 (Pa. 1983) (citation omitted); see also Trial Court
Opinion, 6/26/24, at 15.
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For all the foregoing reasons, we determine no relief is due on Flynn’s
evidentiary issue. We thus affirm the judgment of sentence.
Judgment of sentence affirmed.
Date: 3/24/2025
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