J-S22024-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : EDWARD ARTHUR GEIER : : Appellant : No. 1488 MDA 2020
Appeal from the Judgment of Sentence Entered May 2, 2016 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-CR-0000885-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : EDWARD ARTHUR GEIER, JR. : : Appellant : No. 1489 MDA 2020
Appeal from the Judgment of Sentence Entered May 2, 2016 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-CR-0000412-2015
BEFORE: PANELLA, P.J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY McCAFFERY, J.: FILED NOVEMBER 04, 2021
Edward Arthur Geier, Jr. (Appellant) appeals, nunc pro tunc, from the
judgments of sentence entered in the Centre County Court of Common Pleas
following his jury convictions of a myriad of sexual offenses committed against
two victims in these consolidated cases. On appeal, Appellant argues the trial ____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S22024-21
court erred when it consolidated the two criminal informations for trial, and
when it permitted the Commonwealth to introduce evidence of his prior sexual
assault conviction against a third victim as a prior bad act. For the reasons
below, we affirm.
On March 26, 2015, the Commonwealth charged Appellant at Trial
Docket No. CP-14-CR-0000412-2015 (Trial Docket No. 412-2015) with more
than 1,000 offenses — including rape of a child, indecent assault of
complainant less than 13 years of age, and unlawful contact with a minor1 —
relating to the sexual abuse of his minor stepdaughter, K.K.M.2 The facts
underlying this conviction were summarized by this Court in a prior appeal as
follows:
In August of 2014, state troopers found K.K.M., then thirteen years-old, walking along State Route 45 of Centre County, Pennsylvania.1 K.K.M. had walked 4.7 miles from Spring Mills, where she resided, with two suitcases and a large handbag before she encountered the troopers. K.K.M. told the troopers that she was being sexually assaulted by her stepfather, Appellant. __________ 1 K.K.M. was born in April of 2001.
__________
K.K.M. testified . . . that Appellant began touching her when she was approximately seven or eight years old.2 Appellant would ____________________________________________
1 See 18 Pa.C.S. §§ 3121(c), 3126(a)(7), 6318(a)(1).
2 K.K.M.’s mother, D.G., was Appellant’s second wife; she began dating Appellant when K.K.M was approximately two years old. See N.T., 1/19/16, at 367-68, 502. Appellant was previously married to T.G., with whom he shares a son, M.G. See id. at 367.
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touch K.K.M.’s chest, vagina and would forcibly try to kiss her. She testified that Appellant would engage in these activities when her mother would go to bed, go downstairs to get a drink, or go to the bathroom. Appellant would at times take K.K.M.'s clothes off and touch her chest, touch her vagina, or insert his fingers into her vagina. The assaults progressed when K.K.M. grew older. __________ 2 K.K.M. also estimated that the touching was ongoing for approximately five to six years at the time she ran away. __________
On the first occasion Appellant had intercourse with K.K.M., he accosted her in the shower and told her that if she did not let him have sex with her, he would kill her. Appellant would put her hand on his penis and instruct the child, “not to hold it too tight, but kind of loose, and to move it up and down slowly.” At other times Appellant would cover her face, forcing her to open her mouth and then inserting his penis into her mouth. Appellant would tell K.K.M. not to tell anyone because “[she] and [her] sisters would be taken away and [her] mom would be heartbroken and left with nothing and [they] would lose everything.”
Sexual incidents would occur in her bedroom, the bathroom, the garage, cars, his room, and the couch. When Appellant and K.K.M. were riding in a car, Appellant would pull the car over, pull K.K.M. into the backseat and remove her clothing. Appellant would predicate K.K.M.’s participation in various activities by requiring she perform sex acts with him. K.K.M. testified that she tried repeatedly to deter Appellants advances by trying to fight him off or calling her mother, and she even told Appellant “no;” however, Appellant would continue to abuse her.
K.K.M. testified that the touching occurred two to three times per week. K.K.M was made to perform oral sex on Appellant approximately two times per week, and Appellant performed oral sex on the child approximately thirty times. She also testified that Appellant forced her to engage in intercourse approximately once or twice a week for three to four years, with the last incident occurring in her bedroom days before she ran away. Forensic analysis [later] corroborated K.K.M.’s account of the final incident, positively identifying Appellant’s semen in the specific areas outlined by her.
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Commonwealth v. Geier, 881 MDA 2016 (unpub. memo. at 1-3) (Pa. Super.
Feb. 23, 2017) (record citations omitted), appeal denied, 141 MAL 2017 (Pa.
Aug. 1, 2017).
Less than three months after the charges were filed at Trial Docket 412-
2015, on June 18, 2015, the Commonwealth charged Appellant at Trial Docket
No. CP-14-CR-0000885-2015 (Trial Docket No. 885-2015) with one count
each of rape of an unconscious person, indecent assault,3 and related crimes
for the sexual assault of his half-sister, A.D.,4 on two separate occasions —
once when she was 14 years old, and a second time when she was 19 years
old. The facts underlying those charges are as follows.
A.D., who was born in 1988, shares the same mother as Appellant. N.T.,
1/19/16, at 409. She and Appellant were born 13 years apart. See Trial
Docket 885-2015 Criminal Complaint, 5/28/15, at 1 (Appellant’s date of birth
is April of 1975). A.D. and her mother lived in Florida from the time she was
six until she was 14 years old. N.T., 1/19/16, at 409-10. In 2003, they moved
back to Pennsylvania, in part, to assist Appellant in caring for his son (M.G.)
since he was in the process of divorcing his first wife. Id. at 410. She, her
mother, and her grandmother lived in the same apartment building as
Appellant. Id. at 411. That summer, before her 15th birthday, A.D. agreed ____________________________________________
3 See 18 Pa.C.S. §§ 3121(a)(3), 3126(a)(1).
4 The victim’s initials are now A.H.; A.D. reflects the victim’s maiden name.
N.T., 1/19/16, at 408-09. However, because the third victim’s initials are also A.H., we refer to this victim as A.D.
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to babysit M.G. for Appellant. See id. at 409, 417-18. She and M.G. fell
asleep in Appellant’s bed while watching cartoons. Id. at 421. She awoke to
Appellant “raping” her. Id. at 422. A.D. testified that she “froze,” and
Appellant stopped when he “passed out.” Id. at 423-24. She then “snuck
out” and returned home. Id. at 424. A.D. confronted Appellant the next day,
telling him he raped her. Id. at 426. Appellant stated that he had been
drinking and he thought she was his girlfriend, D.G. (K.K.M.’s mother). Id.
A.D told her mother what Appellant had done, but her mother (also
Appellant’s mother) did not want her to report the incident to police. N.T.,
1/19/16, at 429. A year later, A.D. disclosed the abuse to a school guidance
counselor, who had her talk to the police. Id. at 430, 433. However, she
later recanted after pressure from her mother. Id. at 434-35. A.D. explained
that her family promised to protect her by never leaving her alone with
Appellant. Id. at 435. Nevertheless, in 2007, when she was 19 years old,
A.D. was once again alone with Appellant in her apartment. Id. at 438-39.
At that time, he put his hand under her “shirt and . . . bra[,] grab[bed her]
boobs,” and said, “It’s okay. You’re only my half-sister.” Id. at 439. A.D.
immediately told her mother and uncle what happened, and Appellant
attempted to apologize, stating “he was on pain medications and he . . .
thought that they were making him do weird things[.]” Id. at 441.
A.D. did not report the abuse to the police until after attending a bail
hearing in K.K.M.’s case. See N.T., 1/19/16, at 444. When she gave
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Appellant a hug after the hearing, he stated, “Please don’t testify against me.”
Id. At that point, A.D. reported both prior assaults to the police.
On July 24, 2015, the Commonwealth filed a motion to consolidate the
criminal informations at Trial Docket Nos. 412-2015 and 885-2015. Following
a hearing on July 31st, the trial court granted the motion. See N.T.,
Consolidation H’rg, 7/31/15, at 12. On January 12, 2016, Appellant filed a
motion in limine, seeking to preclude, inter alia, evidence of his prior record,
which was not for crimen falsi crimes.5 See Appellant’s Motions in Limine,
1/12/16, at 3-4. The next day, the Commonwealth filed a comprehensive
motion in limine. See Commonwealth’s Motions in Limine, 1/13/16. Relevant
to this appeal, the Commonwealth sought to introduce evidence, pursuant to
Pa.R.E. 404(b)(1),6 of Appellant’s prior sexual assault of a third victim, which
resulted in a guilty plea.7 See id. at 12-19 (unpaginated). The trial court ____________________________________________
5 Appellant also sought to preclude opinion testimony concerning the victims’
credibility and testimony suggesting that the victims’ mental health struggles resulted from the alleged crimes committed by Appellant. See Appellant’s Motions in Limine at 5-6.
6 As will be discussed in detail infra, Pennsylvania Rule of Evidence 404(b) prohibits evidence of a defendant’s prior bad acts to prove the defendant’s character, and demonstrate that, at the time of the crime, he acted in accordance with that character. Pa.R.E. 404(b)(1). Nevertheless, evidence of a defendant’s prior bad acts may be admissible for other purposes. Pa.R.E. 404(b)(2).
7 The Commonwealth’s motion also sought: (1) to preclude any mention of
the grading or possible punishment for the crimes charges, Appellant’s use of consent as a defense, and any evidence of the victims’ prior sexual conduct; and (2) to amend the criminal information at Trial Docket 885-2015 to reflect (Footnote Continued Next Page)
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conducted a hearing on January 14, 2016. That same day, it entered an order
granting both parties’ motions in limine with respect to all issues except the
admissibility of Appellant’s prior bad acts.8 The next day, the trial entered an
order granting the Commonwealth’s motion to permit evidence of Appellant’s
prior bad acts against a third victim.9 See Order, 1/15/16.
The cases proceeded to a jury trial, commencing on January 18, 2016.
In addition to the testimony of the victims detailed above, the Commonwealth
also presented A.H., a third victim of Appellant’s sexual abuse. A.H. testified
that she is the younger cousin of Appellant’s first wife, T.G. N.T., 1/19/16, at
473-74. A.H. explained that she was very close to T.G., whom she viewed as
a sister or an aunt. Id. at 474, 476. In the summer of 2000, when A.H. was
13 years old,10 she babysat Appellant and T.G.’s son, M.G. Id. at 478. At
that time, Appellant and T.G. lived in Pleasant Gap. Id. at 480. A.H. testified
that, on “multiple occasions [Appellant] would wrestle [her] and pretend like
[they] were just joking around, and he would put his hands up [her] shirt and
down [her] pants.” Id. at 478. She stated that he also “sucked” her breast
and “had his penis pop out of his boxers on one occasion” while they were ____________________________________________
the offenses occurred in the spring of 2003 and summer of 2007. See Commonwealth’s Motions in Limine at 2-11.
8 The order was docketed on January 18, 2016.
9 The order also denied Appellant’s motion to exclude his prior criminal record.
Order, 1/15/16.
10 A.H. was born in 1987. N.T., 1/19/16, at 473.
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watching a movie. Id. at 479. The abuse continued when Appellant and T.G.
moved to Bellefonte, where Appellant “physically pinned [her] on the couch.”
Id. at 480. A.H. eventually reported the abuse her parents, who contacted
the police. See id. at 483-84. Appellant was later charged with, and pled
guilty to, the sexual assault of A.H.11 Id. at 484-85.
At the conclusion of A.H.’s testimony, the trial court provided the
following limiting instruction to the jury:
Before [A.H.] stands down, . . . I just need to make sure that I advise you of something; that you heard evidence tending to prove that [Appellant] is guilty of an offense for which he is not on trial here today, and I’m speaking of the testimony to the effect that [Appellant] was previously convicted, or in this case pled guilty, for indecent assault for acts perpetrated against [A.H.] This evidence is before you for a limited purpose, and that is for the purpose of tending to show [Appellant’s] prior sexual assault of [A.H.] and the current charges which are part of a common scheme or a design or a plan and to show [Appellant’s] actions were not the result of a mistake or an accident. This evidence must not be considered by you in any way other than for the purposes I’ve just stated. You must not regard this evidence as showing that [Appellant] is a person of bad character or criminal tendencies from which you might be inclined to infer guilt.
N.T., 1/19/16, at 487-88.
____________________________________________
11 By way of stipulation, the Commonwealth presented evidence that on December 12, 2001, Appellant pled guilty, at two dockets, to charges of indecent assault, indecent exposure, endangering the welfare of a child, and corruption minors. See N.T. 1/19/16, at 491-92, Commonwealth’s Exhibits 50, 52; 18 Pa.C.S. §§ 3126(a)(7), (8), 3127, 4304, 6301(a)(1). He was sentenced to an aggregate term of 4 to 23½ months’ imprisonment followed by five years’ probation. See Commonwealth’s Exhibit, 52, 53.
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Appellant testified in his own defense, and denied all allegations of abuse
against A.D. See N.T., 1/19/16, at 518. With respect to K.K.M., Appellant
testified that around the time she turned 11 years old, he became her
“confidant.” Id. at 504. At some point later, he “caught [her] doing things
she shouldn’t be doing” on her phone and laptop, although did not specify
what those “things” were. Id. at 505. Appellant testified that, shortly after
K.K.M. turned 13, he walked in on her “touching herself” in her bedroom. Id.
at 506. He stated he left and went downstairs with no intention of “bringing
it up[.]” Id. at 506-07. However, he claimed that about 10 minutes later,
K.K.M. “came down[,] sat beside [him, and said] that [he] could have stayed
or [he] didn’t have to go.” Id. at 507-08. Appellant testified that, after that,
their “relationship became twisted” and he found himself “aroused by”
K.K.M.’s behavior. Id. at 510. He acknowledged that he walked in on her
several more times, and not always by accident. See id. at 510-11. After
one instance, he stated he “masturbated in the living room” by himself. Id.
at 511. Appellant further testified that on two occasions, he and K.K.M. both
masturbated together in her bedroom. Id. at 512. He claimed that he “blew
up at her” two days before she left the house when he found her “online with
some guy.” Id. at 512. He stated he told her “either she was going to have
to go or [he] was” and that “she was the reason why [he] had to keep
masturbating in her room[.]” Id.
On January 20, 2016, the jury returned a verdict of guilty on all 1,068
charges. On January 26th, the trial court ordered Appellant be evaluated by
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the Sexual Offenders Assessment Board to determine if he met the criteria for
classification as a sexually violent predator (SVP) under the Sexual Offenders
Registration and Notification Act (SORNA).12
On May 2, 2016, the trial court sentenced Appellant, at both dockets, to
an aggregate term of 75 to 150 years’ imprisonment. It also determined
Appellant met the criteria for classification as an SVP. See N.T., 5/2/16, at
27-28. Appellant filed timely appeals.
On February 23, 2017, a panel of this Court affirmed Appellant’s
judgments of sentence, concluding Appellant waived his challenge to the
sufficiency of the evidence because his Pa.R.A.P. 1925(b) concise statements
of errors complained of on appeal were “too vague to warrant meaningful
review.” Geier, 881 MDA 2016 (unpub. memo at 7). Appellant’s petition for
allocatur review by the Pennsylvania Supreme Court was subsequently denied.
See Geier, 141 MAL 2017.
Appellant’s direct appeal rights were later reinstated nunc pro tunc by
this Court after he sought relief in a timely post-conviction collateral petition.
See Commonwealth v. Geier, 1185 MDA 2019 (unpub. memo. at 9-13) (Pa.
Super. Aug. 21, 2020) (vacating order denying relief, and remanding for
reinstatement of direct appeal rights). Upon remand, Appellant filed a notice
12 See 42 Pa.C.S. §§ 9799.24, 9799.58.
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of appeal at each trial court docket,13 and complied with the trial court’s
directives to file Pa.R.A.P. 1925(b) concise statements of errors complained
of on appeal.14
Appellant raises the following two claims on appeal, which we have
reordered for purposes of disposition:
I. Whether the trial court erred in consolidating the two Criminal Informations for trial where the evidence relating to [each] case would not be admissible in the other case and is not capable of separation by the jury so there would be no danger of confusion[?]
II. Whether the trial court erred in denying Appellant’s motion in limine to preclude evidence regarding Appellant’s prior criminal record at trial and permitting the Commonwealth to introduce prior bad act evidence regarding A.H. pursuant to Pa.R.[E.] 404(b)[?]
13 See Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018) (separate
notices of appeal must be filed when a single order resolves issues arising on more than one trial court docket).
The appeal of Trial Docket No. 885 MDA 2015 is docketed at 1488 MDA 2020, and the appeal of Trial Docket No. 412-2015 is docketed at 1489 MDA 2020.
14 We note that, Appellant initially filed the notices of appeal and Rule 1925(b)
statements absent an order by the trial court reinstating his direct appeal rights. After being directed to do so by this Court, the trial court entered the requisite order on November 2, 2020. See Order, 11/2/20. Appellant then filed new notices of appeal and Rule 1925(b) statements.
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Appellant’s Brief at 4.15 While these issues are distinct, the analysis for both
claims overlaps.
Preliminarily, we note that we review both issues on appeal for an abuse
of discretion.
“Whether to join or sever offenses for trial is within the trial court’s discretion and will not be reversed on appeal absent a manifest abuse thereof, or prejudice and clear injustice to the defendant.”
Commonwealth v. Knoble, 188 A.3d 1199, 1205 (Pa. Super. 2018) (citation
omitted). Similarly:
“Admission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion.” “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. Tyson, 119 A.3d 353, 357–58 (Pa. Super. 2015) (en
banc) (citations omitted).
Pennsylvania Rule of Criminal Procedure 582 permits offenses charged
in separate informations to be tried together if, inter alia, “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[.]”
15 Appellant raised a third claim in his Rule 1925(b) statement — asserting the
trial court erred in denying his request to remove a juror — which he withdrew on appeal. See Appellant’s Brief at 4 n.1.
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Pa.R.Crim.P. 582(A)(1)(a).16 When seeking to consolidate separate cases,
“the Commonwealth is required to show more than that the crimes are of the
same class.” Commonwealth v. Newman, 598 A.2d 275, 278 (Pa. 1991).
Rather, there must be “shared similarities in the details of each crime.” Id.
This Court has looked to Pennsylvania Rule of Evidence 404(b) for guidance.
See Commonwealth v. Smith, 47 A.3d 862, 867 (Pa. Super. 2012)
(considering Rule 404(b) analysis when determining whether evidence in one
case would be admissible in another for purposes of consolidation of separate
informations).
Rule 404(b)(1) provides that “[e]vidence 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.”
Pa.R.E. 404(b)(1). See Newman, 598 A.2d at 399 (“[E]vidence of a distinct
crime is inadmissible to show a defendant’s propensity to commit a crime.”).
However, the Rule further provides that evidence of defendant’s prior bad acts
may be admissible when it is introduced for another purpose, “such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity, absence
of mistake, or lack of accident.” Pa.R.E. 404(b)(2). When bad acts evidence
is proposed for such other purpose in a criminal case, it “is admissible only if
16 Subsection (A)(1)(b) of the Rule also permits cases to be tried together if
“the offenses charged are based on the same act or transaction.” Pa.R.Crim.P. 582(A)(1)(b). That subsection is not applicable under the facts presented sub judice.
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the probative value of the evidence outweighs its potential for unfair
prejudice.” Id. Thus, in determining whether a trial court properly
consolidated separate cases for trial, this Court has considered whether the
evidence in each case would be admissible in other pursuant to one of the
Rule 404(b)(2) exceptions. See Commonwealth v. Lively, 231 A.3d 1003,
1006 (Pa. Super. 2020); Smith, 47 A.3d at 867.
Here, the trial court concluded the evidence of each case would be
admissible in the other under the common plan or exception. See Trial Ct.
Op., 2/3/20, at 4-5. When determining the applicability of that exception,
the trial court must first examine the details and surrounding circumstances of each criminal incident to assure that the evidence reveals criminal conduct which is distinctive and so nearly identical as to become the signature of the same perpetrator. Relevant to such a finding will be the habits or patterns of action or conduct undertaken by the perpetrator to commit crime, as well as the time, place, and types of victims typically chosen by the perpetrator. Given this initial determination, the court is bound to engage in a careful balancing test to assure that the common plan evidence is not too remote in time to be probative. If the evidence reveals that the details of each criminal incident are nearly identical, the fact 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.
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Commonwealth v. G.D.M., 926 A.2d 984, 987 (Pa. Super. 2007) (paragraph
break added and citation omitted).
With regard to the consolidation of his cases for trial, Appellant argues
the trial court abused its discretion for two reasons: (1) the evidence in each
case would not be admissible in a separate trial for the other; and (2) the
evidence “would be confusing to the jury.” Appellant’s Brief at 19. First, he
insists that the evidence of his alleged assault of A.D. “would not have been
admissible under Rule 404(b) in the case involving [K.K.M.]” or vice versa.17
Id. at 20. Appellant explains that the alleged incident involving A.D. occurred
in 2003, when she was 14 years old — “Appellant came home drunk one night,
while A.D. was sleeping, and crawled into bed with her and raped her.”18 Id.
at 20-21. However, the alleged abuse of K.K.M. occurred over a course of
four years, beginning in 2010 — when she was eight years old — and
continuing until 2014, and involved both the touching of her intimate parts as
well as “forcible rape.” Id. at 21. Appellant emphasizes that “[a]t no time
was there an allegation that [he] was drunk for any of the incidents involving”
K.K.M. Id. Thus, he maintains the alleged abuse of each victim was not “so
nearly identical in method as to earmark them as the handiwork of the ____________________________________________
17 This argument tracks Appellant’s additional claim that the evidence concerning his prior abuse of A.H. should not have been admitted under the “common plan, scheme or design” exception to Rule 404(b)’s prohibition of evidence concerning a defendant’s prior bad acts. See Appellant’s Brief at 20.
18 He acknowledges there was a second alleged incident that involved him grabbing her breast under her shirt. Appellant’s Brief at 20.
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accused.” Id., citing Commonwealth v. Ross, 57 A.3d 85, 104 (Pa. Super.
2012) (en banc).
Second, Appellant maintains the evidence was not capable of separation
by the jury so as to avoid confusion. Appellant’s Brief at 21. He asserts the
younger witness (K.K.M.) testified regarding a broader range of conduct,
which occurred after the incidents involving the older witness (A.D.). Id. at
22. Furthermore, Appellant emphasizes that the incidents involving A.D.,
which occurred first in time, were charged after the case involving K.K.M. See
id. Thus, he contends, “[r]eferences to the ‘first case’ and ‘second case’ or
‘older case’ and ‘newer case’ would be substantially likely during trial and all
such terms could plausibly refer to either matter.” Id. Accordingly, Appellant
argues the trial court abused its discretion when it consolidated these two
cases for trial.
In granting the Commonwealth’s motion to consolidate the two cases,
the trial court opined:
Here, evidence from one case would be admissible in a separate trial for the other due to the similarities between the cases. [B]oth victims had a familial relationship with Appellant, were of similar ages, and were assaulted within Appellant’s home. Appellant argued the fact the alleged incident with A.D. occurred once indicates it was not similar to the alleged recurring assaults on K.[K.]M. This [c]ourt, however, found A.D. immediately informing her mother of the assault to be the intervening factor that prevented the assault from recurring.
The [c]ourt found consolidation could be done without confusion of the jury because the testimony was straightforward. Additionally, the court found that because K.[K.]M. was now a
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teenager and A.D. was now an adult, they would be able to provide clear testimony and resolve any potential confusion.
Lastly, the court did not find consolidation to unfairly prejudice Appellant. [E]vidence is not prejudicial merely because it is harmful to . . . Appellant’s case. To be unfairly prejudicial, it must be “so prejudicial that it would inflame the jury to make a decision based upon something other than the legal propositions relevant to the case.” Here, the [c]ourt did not find consolidation to unfairly prejudice . . . Appellant. . . .
Trial Ct. Op. at 4-5 (paragraph breaks added and citations omitted).
Upon our review of the record and relevant statutory and case law, we
conclude the trial court did not abuse its discretion in granting the
Commonwealth’s motion to consolidate the cases for trial. First, we agree the
evidence of each case would be admissible in a trial for the other. In both
instances, Appellant sexually assaulted a minor female, with whom he shared
a familial relationship, in his home — K.K.M. was his stepdaughter, and A.D.
was his half-sister. Appellant raped A.D. when she was 14 years old, and
began sexually assaulting K.K.M. when she was eight years old, continuing
until she was 13 years old. Although there is a slight difference in the ages of
the victims at the time they were abused, we note that A.D. had just moved
to Pennsylvania four months before the assault; thus, Appellant had no
opportunity to abuse her before that time. See N.T., 1/19/16, at 418.
Moreover, while Appellant raped A.D. only once, A.D. immediately told her
mother and uncle what had happened. See id. at 428-29, 450. Although her
mother did not want her to report the incident to police, A.D.’s uncle
confronted Appellant — directing him to “to stay away from her” — and her
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family promised to protect her from him. N.T., 1/19/16, at 435, 452.
Conversely, Appellant’s abuse of K.K.M. only ceased when she was 13 years
old because she left the home. See N.T., 1/18/16, at 133-34 (K.K.M.
explaining she “just decided [she] had enough”).
Appellant makes much of the fact that he was “drunk” when he allegedly
raped A.D., but there was no allegation that he was drunk “for any of the
incidents involving” K.K.M. Appellant’s Brief at 21. We note, however, that
the only indication that Appellant was “drunk” when he assaulted A.D. was his
own statement to her the next day. See N.T., 1/19/16, at 426 (when A.D.
confronted Appellant about the rape, he told her “he had been drinking[,] had
three Red Deaths that night[, and] he thought [she] was” his girlfriend).
When asked whether she could tell if he had been drinking, A.D. replied: “I
couldn’t smell any alcohol on him. I didn’t turn to face him or anything.” Id.
at 425. Thus, we conclude the “drunk” distinction is of no moment.
Furthermore, Appellant ignores the fact that A.D. decided to proceed
with the prosecution of Appellant only after attending his bail hearing on the
charges involving K.K.M. See N.T., 1/19/16, at 444. Despite the fact that he
raped and groped her when she was a teenager, A.D. testified that she still
“felt bad for him” when he was charged with the abuse of K.K.M. Id. She
explained:
I gave him a hug, kind of to offer comfort, . . . and I told him, you know, “Everything is going to be okay. No matter what happens, everything is going to be okay,” and he asked me as we were hugging . . . “Please don’t testify against me.”
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Id. Shortly thereafter, A.D. contacted the police, who filed the charges in her
case less than three months later. Thus, we conclude the evidence of K.K.M.’s
case would be admissible in A.D.’s case to explain why A.D. decided to proceed
with the prosecution of Appellant 12 years after the rape occurred. See
Commonwealth v. Lark, 543 A.2d 491, 497 (Pa. 1988) (evidence of a
defendant’s other crimes may be admissible “where such evidence was part
of the chain or sequence of events which became part of the history of the
case and formed part of the natural development of the facts”).
We also conclude the trial court did not abuse its discretion when it found
the evidence was capable of separation by the jury. Our review of the
testimony of both victims confirms that they were each able to communicate
to the jury the sexual abuse Appellant inflicted upon them. Moreover,
Appellant’s concern that reference to the “first” and “second” case, or the
“older” and “newer” case, might confuse the jury never materialized at trial.
See Appellant’s Brief at 22. In fact, Appellant fails to provide any citation to
the record where either the Commonwealth or the trial court referred to the
cases in this manner. Indeed, our review of the Commonwealth’s opening and
closing statements reveals it referred to each case by the victim’s name. See
N.T., 1/18/16, at 43-67 (Commonwealth’s opening statement; noting “[t]hey
are separate cases, and [it has] no doubt [the jury will] be able to judge them
separately”); N.T., 1/19/19, at 610-39 (Commonwealth’s closing statement).
Thus, Appellant’s first issue fails. See Commonwealth v. Andrulewicz, 911
A.2d 162, 168-69 (Pa. Super. 2006) (court did not abuse its discretion in
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consolidating three cases involving defendant’s sexual abuse of minor female,
ages 10, 12, and 16; incidents occurred in same residence, defendant initiated
contact one of two ways — games or pornography — and jury was capable of
separating evidence).
Next, Appellant contends the trial court abused its discretion when it
permitted the Commonwealth to introduce evidence of his prior sexual assault
of A.H. Appellant’s Brief at 13. He insists that the incidents involving A.D.
and K.K.M. were “not substantially similar to the prior bad acts evidence
regarding A.H.” Id. at 16-17. Appellant emphasizes that A.D. claimed
Appellant forcibly raped her on one occasion and “felt her breasts” on another
occasion, while K.K.M. alleged Appellant sexually assaulted her “hundreds [of
times] over the course of several years[.]” Id. at 17. He contrasts this with
the prior assault, where he was accused of putting his hands down A.H.’s shirt
and pants “on a couple occasions” while she babysat his son. Id. at 16.
Appellant insists the incidents “with these three victims were similar only in
the sense that they’re allegations of criminal sexual behavior, by [A]ppellant,
in his home, against young females.” Id. at 17. He argues the relationships
of the victims to him, the ages of the victims at the time of the assaults, the
acts alleged, and the number of incidents alleged were all different. See id.
at 17. Accordingly, Appellant asserts the evidence of his prior crime “fell [so]
far short of being ‘so distinctive’ and ‘nearly identical’ to the acts for which
[he] was on trial” that the testimony of A.H. was not “relevant or probative,
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and in fact, [was] unduly prejudicial.” Id. at 18. Thus, he maintains he is
entitled to a new trial.
As detailed above, “[e]vidence of prior crimes is not admissible for the
sole purpose of demonstrating a criminal defendant’s propensity to commit
crimes.” Tyson, 119 A3d at 358 (citation omitted). See also Pa.R.E.
404(b)(1). However, such evidence may be admissible for some other
purpose such as demonstrating the defendant had a common plan or scheme.
See Pa.R.E. 404(b)(2); G.D.M., 926 A.2d at 987. When considering this
exception, a reviewing court should consider factors such as “the elapsed time
between the crimes, the geographical proximity of the crime scenes, and the
manner in which the crimes were committed[,]” as well as examine the crimes
for “shared similarities, i.e., similarity of victims[ and] location where the
crimes occurred.” See Commonwealth v. Rush, 646 A.2d 557, 561 (Pa.
1994); Commonwealth v. O’Brien, 836 A.2d 966, 969 (Pa. Super. 2003).
Further, “while remoteness in time is a factor to be considered . . . the
importance of the time period is inversely proportional to the similarity of the
crimes in question.” Commonwealth v. Aikens, 990 A.2d 1181, 1185 (Pa.
Super. 2010) (citation omitted).
Here, the trial court found the evidence of Appellant’s prior conviction
for his sexual assault of A.H. was admissible in the instant consolidated trial
under the common plan or scheme exception to Rule 404(b). The court
opined:
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All of Appellant’s victims were minors of a similar age who had either a familial or quasi-familial relationship with Appellant. The victim of Appellant’s 2001 assaults, A.H., was the thirteen (13) year old cousin of Appellant’s then wife who viewed Appellant as an uncle. In the present case, victim A.D. was [the] fourteen (14) year old half-sister of Appellant and victim K.[K.]M. was [the] step-daughter of Appellant [and] was eight (8) years old when the assaults began. The place of the assaults and the nature of the assaults were all similar. The 2001 assaults of A.H. occurred in Appellant’s home while A.H. was babysitting Appellant’s son and involved Appellant pinning A.H. down while groping and licking her breasts and vagina. The assault of A.D. occurred in Appellant’s home while A.D. was babysitting Appellant’s son and involved A.D. being awoken to Appellant raping her. The assaults of K[K.]M. occurred in the home of Appellant as well as Appellant’s vehicle and involved the groping and licking of K.[K.]M.’s breasts and vagina and the raping of K.[K.]M. Appellant asked each victim not to tell on him. The [c]ourt found the time between the cases not at issue because Appellant was on parole for his 2001 assaults against A.H. and was not released from supervision until 2009, which is when Appellant began assaulting K.[K.]M.
[Additionally, the trial court] did not find the evidence of Appellant’s prior bad act to be unduly prejudicial. Appellant argued admission of the act would be “extremely prejudicial, not overly probative” and would tell the jury that because Appellant had done this once, he did it again. . . . Given the similarities in the cases, the [c]ourt did not find Appellant’s prior bad acts to be unfairly prejudicial. Instead the [c]ourt found the evidence of the prior assaults toward A.H. in conjunction with the assaults of A.D. and K[K.]M. established Appellant’s actions were not the result of mistake or accident and instead evidenced a pattern of behavior or common scheme by Appellant. . . .
Trial Ct. Op. at 2-3.
Again, we conclude the trial court’s ruling does not constitute a clear
abuse of discretion. See Tyson, 119 A.3d at 357. All three victims shared a
familial or quasi-familial relationship with Appellant — A.H. was his former
wife’s cousin, A.D. is his half-sister, and K.K.M. was his stepdaughter. Each
victim was between the ages of 8 and 14 when the abuse began. Appellant
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sexually assaulted two of the victims — A.H. and A.D. — while they babysat
his young son. Appellant sexually assaulted A.H. in the summer of 2000, and
pled guilty to those offenses in 2001. He then raped A.D. in the summer of
2003, less than four months after she moved to Pennsylvania, and while he
was on parole for the crimes committed against A.H. Indeed, Appellant was
on probation for his crimes against A.H. until 2009 — the same year he began
sexually assaulting K.K.M.
Although the sexual abuse of K.K.M. continued for several years, we
note the abuse of A.H. and A.D. stopped when they reported the incidents to
their mothers. Further, unlike A.H. and A.D., K.K.M. lived with Appellant.
Lastly, Appellant told both A.H. and K.K.M. not to tell anyone about the abuse;
he similarly asked A.D. not to testify against him. Thus, we agree the facts
of Appellant’s prior assault of A.H. are sufficiently similar to those of the
present cases to permit evidence of the prior conviction under the common
plan and scheme exception. See Aikens, 990 A.2d at 1182-83, 1185-86 (in
case involving indecent assault of minor daughter, trial court properly
admitted evidence that defendant raped another daughter 15 years earlier;
victims were almost same age at the time of the abuse, incidents occurred
during overnight visits with defendant after he showed them pornographic
videos, and although second victim stopped defendant from undressing her,
he “mimicked the grinding movements of sexual intercourse on [her] in order
to sexually gratify himself”); Commonwealth v. Lukitsch, 680 A.2d 877,
878-79 (Pa. Super. 1996) (in case involving sexual abuse of minor
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stepdaughter, trial court properly permitted evidence that defendant sexually
abused his own daughter 14 years earlier, and another stepdaughter 8 years
earlier; all three victims had relationship with defendant, were all living with
him at the time of assaults, and began with “improper touching . . ., then oral
sex, then sexual intercourse”).
We note that in arguing the evidence of his prior case should not have
been admitted, Appellant emphasizes the language in Ross that “[t]he prior
bad acts must be ‘so nearly identical in method as to earmark them as the
handiwork of the accused.’” Appellant’s Brief at 14, quoting Ross, 57 A.3d at
102. However, we conclude the facts of that case are distinguishable. In
Ross, unlike in the present case, the identity of the assailant was at issue.
There, the murder victim’s partially-clothed body was discovered near a boat
launch; her anus and vagina had been “massively traumatized.” Ross, 57
A.3d at 87-88. The defendant was identified as a suspect because he met the
victim at bar the night before she was murdered, and was dropped off with
her near the boat launch early that morning. See id. at 88. At trial, the
Commonwealth was permitted to introduce the testimony of three of the
defendant’s ex-girlfriends, who each testified he sexually and physically
abused her during their relationship. See id. at 99-100.
In concluding the testimony should not have been admitted to prove the
defendant’s identity as the victim’s killer, the en banc panel explained that
the defendant’s abusive behavior in each prior incident was triggered by
different causes. See Ross, 57 A.3d at 102. Moreover, the attack on the
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murder victim “involved a level of brutality far in excess of the incidents of
physical and/or sexual abuse described by” his ex-girlfriends. Id. at 103.
Most significant, however, was that the fact that the prior incidents all involved
claims of domestic abuse by a girlfriend which whom he was cohabitating.
See id. There was no evidence that the defendant and the murder victim
knew each other before the night in question. Id. Thus, the en banc panel
opined that the testimony of the defendant’s ex-girlfriends “did not establish
any particular modus operandi or other pattern of conduct . . . so unusual and
distinct as to constitute a ‘signature’ identifying” the defendant as the
victim’s killer. Id. (emphasis added).
Here, the identity of the abuser was not at issue. Each victim had a
personal, familial or quasi-familial relationship with Appellant before the
sexual abuse occurred, and each victim identified Appellant as her abuser.
Thus, the facts in Ross are distinguishable from those before us.
Furthermore, we conclude Appellant has failed to demonstrate why the
introduction of the prior bad acts evidence was unfairly prejudicial. This Court
has explained:
[T]he term “unfair prejudice” in Rule 404(b)(2) “means a tendency to suggest a decision on an improper basis or to divert the jury’s attention away from its duty of weighing the evidence impartially.”
Commonwealth v. Gilliam, 249 A.3d 257, 272 (Pa. Super. 2021) (citation
omitted). Nevertheless, it is well-settled:
The court is not, however, required to sanitize the trial to eliminate all unpleasant facts from the jury’s consideration where those
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facts are relevant to the issues at hand and form part of the history and natural development of the events and offenses for which the defendant is charged[.]
Lark, 543 A.2d at 501.
Here, Appellant simply argues that “the prior bad acts regarding A.H.
were not relevant or probative, and in fact, were prejudicial when introduced
in the context of a trial on the consolidated Criminal Informations for the
incidents with A.D. and K.[K.]M.” Appellant’s Brief at 18. He fails to provide
any analysis concerning why the court’s ruling resulted in “unfair prejudice”
such that the jury did not weigh the evidence impartially. See Gilliam, 249
A.3d at 272.
Moreover, it is well-settled that:
[W]hen examining the potential for undue prejudice, a cautionary jury instruction may ameliorate the prejudicial effect of the proffered evidence. . . . Jurors are presumed to follow the trial court’s instructions. . . .
Commonwealth v. Hairston, 84 A.3d 657, 666 (Pa. 2014). In the present
case, immediately after A.H.’s testimony, the trial court issued an instruction,
informing the jury that it was not to view the evidence “as showing that
[Appellant] is a person of bad character or criminal tendencies” but, instead,
for the limited purpose of demonstrating that Appellant’s “prior sexual assault
of A.H. and the current charges . . . are part of a common scheme or a design
or a plan and to show [Appellant’s] actions were not the result of a mistake
or an accident.” N.T., 1/19/16, at 487-88. The trial court repeated that
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instruction during its final charge to the jury.19 See N.T., 1/20/16, at 674.
The jury was presumed to have followed these instructions, and Appellant
makes no argument to the contrary. See Hairston, 84 A.3d at 666. Thus,
we conclude Appellant has failed to demonstrate the trial court abused its
discretion when it permitted the Commonwealth to introduce evidence
regarding his prior sexual assault of A.H.
Because neither of Appellant’s claims on appeal warrant relief, we affirm
the judgments of sentence.
Judgments of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 11/04/2021
19 The Commonwealth repeated this sentiment in its closing argument. See N.T., 1/19/16, at 616-17 (stating it “did not introduce [A.H.’s] case so [the jury] would use that to find [Appellant] guilty of [K.K.M.] and [A.D.’s] case[;]” “[w]hat you can look at is the similarities between his behavior, in essence, a pattern, common scheme.”).
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