Com. v. Neill, D.

• Court: Superior Court of Pennsylvania
• Decided: April 30, 2024
• Docket: 445 WDA 2023
• Status: Unpublished

Opinion

J-A06020-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : DALE RICHARD NEILL : No. 445 WDA 2023

Appeal from the Order Entered March 20, 2023 In the Court of Common Pleas of Jefferson County Criminal Division at No(s): CP-33-CR-0000487-2022

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and BECK, J.

MEMORANDUM BY PANELLA, P.J.E.: FILED: April 30, 2024

The Commonwealth brings this interlocutory appeal from the order

denying, in part, its pretrial motion in limine seeking the admission of evidence

of prior bad acts committed by Appellee, Dale Richard Neill. We affirm.

In an information filed on November 10, 2022, the Commonwealth

charged Neill with four counts each of indecent assault of a person less than

13 years of age, indecent assault without consent, and indecent assault of a

person less than 16 years of age, and two counts of corruption of minors.1 The

charges originate from conduct allegedly perpetrated by Neill upon a 12-year-

old neighbor, A.E., in February 2022. The Commonwealth filed pretrial

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1 18 Pa.C.S.A. §§ 3126(a)(7), 3126(a)1), 3126(a)(8), and 6301(a)(1)(i) and

(ii), respectively. J-A06020-24

motions containing, among other things, a motion in limine requesting,

pursuant to Pennsylvania Rule of Evidence 404(b), admission of prior bad acts

evidence related to conduct committed by Neill in 2010 upon a former 12-

year-old neighbor, M.C.

The trial court held a hearing and on March 20, 2023, and entered an

order denying the request to admit evidence of Neill’s prior bad acts. The

Commonwealth filed this timely appeal presenting the single issue of

“[w]hether the trial court erred in denying [its] Motion in Limine to admit

testimony, evidence and [Neill’s] prior convictions pursuant to Pa.R.E.

404(b)(2) concerning [Neill’s] sexual abuse of prior victim, M.C.”2

Commonwealth’s Brief at 3. The Commonwealth contends that the prior bad

acts evidence is admissible because the present case shares similarities to the

matter with M.C. See id. The Commonwealth asserts that the evidence proves

motive, intent, common scheme, and absence of mistake or accident.

Before we address the Commonwealth’s claim that the trial court erred

in denying its motion in limine, we must consider whether the issue has been

waived. We observe that the fundamental tool for appellate review is the

official record of the events that occurred in the trial court. See

2 The Commonwealth has certified, pursuant to Pennsylvania Rule of Appellate

Procedure 311(d), the trial court’s order substantially handicaps the prosecution of this case. See Commonwealth’s Brief at 1; Notice of Appeal, 4/3/23, at 1. Therefore, pursuant to Pa.R.A.P. 311(d), this Court has jurisdiction to hear this appeal from the trial court’s interlocutory order, even though the order did not terminate the prosecution.

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Commonwealth v. Preston, 904 A.2d 1, 6 (Pa. Super. 2006). The law of

Pennsylvania is well settled that matters which are not of record cannot be

considered on appeal. See id. Indeed, an appellate court is limited to

considering only those facts that have been duly certified in the record on

appeal. See Commonwealth v. Powell, 956 A.2d 406, 423 (Pa. 2008).

The certified record consists of the “original papers and exhibits filed in

the lower court, paper copies of legal papers filed with the prothonotary by

means of electronic filing, the transcript of proceedings, if any, and a certified

copy of the docket entries prepared by the clerk of the lower court[.]”

Pa.R.A.P. 1921. “We can only repeat the well-established principle that ‘our

review is limited to those facts which are contained in the certified record’ and

what is not contained in the certified record ‘does not exist for purposes of our

review.’” Commonwealth v. Brown, 161 A.3d 960, 968 (Pa. Super. 2017)

(citation omitted).

“This Court cannot meaningfully review claims raised on appeal unless

we are provided with a full and complete certified record.” Preston, 904 A.2d

at 7 (citation omitted). “Our law is unequivocal that the responsibility rests

upon the appellant to ensure that the record certified on appeal is complete

in the sense that it contains all of the materials necessary for the reviewing

court to perform its duty.” Commonwealth v. Bongiorno, 905 A.2d 998,

1000 (Pa. Super. 2006) (en banc) (citation omitted); see also Preston, 904

A.2d at 7 (reiterating that “the ultimate responsibility of ensuring that the

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transmitted record is complete rests squarely upon the appellant and not upon

the appellate courts”).

Our review of the transcript of the motion in liminie hearing contained

in the certified record reflects the Commonwealth produced multiple exhibits

to support its request to admit prior bad acts evidence. See N.T., 3/17/23.

Specifically, the Commonwealth introduced, as Exhibit 1, a 30-minute

recording of the forensic interview conducted with A.E., the victim in this case,

by Patricia Berger, a director and forensic interviewer for Western PA Cares

for Kids. See id., at 10-11, 39. The Commonwealth also introduced, as Exhibit

2, the recording of a 38-minute forensic interview conducted by Berger with

M.C., the victim of the 2010 incident. See id. at 12, 39. In addition, the

Commonwealth presented as Exhibit 5, a page of the Pennsylvania State Police

report containing an interview with the mother of the victim in this matter.

See id. at 22. According to the prosecutor, the purpose of the exhibit is

“showing the similarities between the two incidents.” Id. at 21. In Exhibit 6,

the Commonwealth offered multiple pages from the State Police report

pertaining to the 2010 incident, mostly related to witness interviews

conducted in that matter. See id. at 22-27.

The record further reveals that, after hearing arguments from the

parties, the trial court took a recess to watch both videos of the forensic

interviews conducted by Berger. See N.T., 3/17/23, at 40. Thereafter, the

trial court reconvened the hearing and rendered its decision on the record.

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See id. at 40-43. Subsequently, in its Pa.R.A.P. 1925(a) opinion, the trial

court addressed the reasoning for its determination and specifically stated that

“[a]fter reviewing the evidence, including both forensic interviews, [it]

concluded that the similarities between the conduct alleged in this case and

the incident [from 2010] were not substantial enough to satisfy Rule 404(b).”

Trial Court Opinion, 5/18/23, at 1.

However, upon review of the certified record before us, it is apparent

that none of the Commonwealth’s exhibits presented at the hearing were

included in the certified record for transmittal to this Court. Importantly,

neither of the recordings of the forensic interviews viewed by the trial court

and relied upon in reaching its disposition were provided to us. Further, our

review of the trial court’s docket and the certified record index supports that

finding. Therefore, the Commonwealth, as the appellant, failed to ensure that

the complete record is before this Court for appellate review. Accordingly,

because we cannot review the issue pertaining to whether the trial court

properly denied the Commonwealth’s motion in limine pertaining to Neill’s

prior bad acts without reference to the recordings and additional exhibits

presented at the pretrial hearing, which were viewed and relied upon by the

trial court, our review is hampered, and we are constrained to deem this issue

to be waived on appeal.

Nevertheless, if we were to address the Commonwealth’s argument, we

would conclude that it lacks merit. A motion in limine is a procedure for

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obtaining a ruling on the admissibility of evidence prior to or during trial, but

before the evidence has been offered. See Commonwealth v. Freidl, 834

A.2d 638, 641 (Pa. Super. 2003). The basic requisite for the admissibility of

any evidence in a case is that it be competent and relevant. See id. A trial

court should find evidence admissible if it is relevant, that is “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. Williams, 896 A.2d 523, 539

(Pa. 2006) (citation omitted).

It is well settled that “[t]he admission of evidence is within the sound

discretion of the trial court and will be reversed on appeal only upon a showing

that the trial court clearly abused its discretion.” Commonwealth v. Miles,

846 A.2d 132, 136 (Pa. Super. 2004) (en banc) (citation omitted). Abuse of

discretion requires a finding of misapplication of the law, a failure to apply the

law, or judgment by the trial court that exhibits bias, ill-will, prejudice,

partiality, or was manifestly unreasonable, as reflected by the record. See

Commonwealth v. Montalvo, 986 A.2d 84, 94 (Pa. 2009).

Rule 404 “deals exclusively with the evidence of crimes, wrongs or acts

which a party seeks to admit to prove something about an accused, a

complainant or a witness.” Commonwealth v. Thompson, 779 A.2d 1195,

1201 (Pa. Super. 2001). Such evidence may be admissible “where it is

relevant for some other legitimate purpose and not utilized solely to blacken

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the defendant’s character.” Commonwealth v. Russell, 938 A.2d 1082,

1092 (Pa. Super. 2007). However, this Court has reiterated that “[w]hile

evidence of prior bad acts is not admissible to show criminal propensity,

evidence of other crimes may be admissible if it is relevant to show some

other legitimate purpose.” Commonwealth v. Ivy, 146 A.3d 241, 251 (Pa.

Super. 2016) (citation omitted).

Our Supreme Court has discussed evidence of other bad acts and the

related exceptions as follows:

Generally, evidence of prior bad acts or unrelated criminal activity is inadmissible to show that a defendant acted in conformity with those past acts or to show criminal propensity. Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be admissible when offered to prove some other relevant fact, such as motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident. Pa.R.E. 404(b)(2). In determining whether evidence of other prior bad acts is admissible, the trial court is obliged to balance the probative value of such evidence against its prejudicial impact.

Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009).

Here, if we were to ignore the waiver caused by the Commonwealth and

address its argument regarding admission of the prior bad acts evidence, we

would conclude that the issue lacks merit and the trial court properly refused

to admit the evidence. In rendering its decision at the conclusion of the pretrial

hearing, the trial court reasoned as follows:

I do think it’s dis-similar enough I am going to deny the motion and not allow it to be presented in the case in chief because it involved as we start -- it ended up involving frontal touching, not just with the vagina but also a rub of the stomach was alleged during a time seated on [his] lap, squeezing, and lifting of the

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buttocks which were not described and a longer relationship and closer relationship. I think there are sufficient differences, even though there are some similarities, age, the hugs, the statements are- the main similarities. But I don’t think it’s sufficiently similar to show a common scheme, plan, or design.

N.T., 3/17/23, at 41-42.

The trial court offered the following explanation to support its

conclusion:

[A.E.] only reported incidents in which [Neill] rested his hands on her buttocks while hugging her, whereas [M.C.] described squeezing and lifting motions, as well. [M.C.] further described an incident wherein [Neill] rubbed her bare stomach, slid his hands down her pants, and stroked her pubic hair while she was sitting on his lap, whereas [A.E.] said that her buttocks were always covered and that [Neill’s] hands never strayed underneath her clothing or toward her pubic area. In the [trial c]ourt’s estimation, those differences made the [Rule] 404(b) [evidence] far too prejudicial, particularly because the Commonwealth intended to use it to establish the element of intent[.]

Trial Court Opinion, 5/18/24, at 1.

Our review of the record presently before us leads us to conclude that,

regardless of the way we would have ruled upon this motion, we cannot find

that the trial court clearly abused its discretion. The record reflects the parties

do not dispute that the incident involving M.C. in 2010 began with Neill

perpetrating random touching of the victim, which escalated to an incident

wherein the victim sat on Neill’s lap, and he rubbed her stomach, placed his

hands inside the front of her pants and touched her pubic hair. Likewise, there

is no dispute that the conduct allegedly perpetrated by Neill in this matter

included him placing his arm around the victim’s shoulder and letting his hand

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drop and rest on her buttocks, which was followed by a comment about the

victim’s weight. However, based on these facts, the trial court found that,

although there are some similarities, the two incidents are sufficiently

dissimilar so as to preclude the admission of facts surrounding the 2010

incident under Rule 404(b). Accordingly, we discern no error on the part of

the trial court in refusing to admit the prior bad acts evidence. Therefore, we

would conclude that the Commonwealth has failed to establish that the trial

court abused its discretion in denying its motion in limine seeking to present

prior bad acts evidence.

Order affirmed.

President Judge Lazarus joins the memorandum.

Judge Beck files a concurring memorandum.

4/30/2024

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