J-A11035-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : VICTOR CHARLES SMITH : : Appellant : No. 919 MDA 2023
Appeal from the Judgment of Sentence Entered April 21, 2023 In the Court of Common Pleas of Lancaster County Criminal Division at Nos: CP-36-CR-0004552-2021, CP-36-CR-0005082-2020
BEFORE: BOWES, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY STABILE, J.: FILED: NOVEMBER 1, 2024
Appellant, Victor Charles Smith, seeks review of the judgment of
sentence entered by the Court of Common Pleas of Lancaster County (trial
court). Following a jury trial, Appellant was found guilty of sex offenses
against two minor children (K.C. and D.H.), whose individual cases were
consolidated for trial purposes. He was then sentenced to an aggregate prison
term of 16 to 35 years and designated as a Sexually Violent Predator. On
appeal, Appellant contends that relief is due because (1) the trial court
erroneously admitted into evidence prior bad acts alleged by a third victim
(A.H.), and (2) the trial court erred in denying his motion to sever the cases
of K.C. and D.H. Finding merit in Appellant’s first issue, we vacate the
judgment of sentence and remand for a new trial on that ground. J-A11035-24
In 2020, K.C. (then 16 years of age) reported to her adoptive mother,
Amanda Keeler, that she had been sexually abused by Appellant on multiple
occasions over a period of several years. Keeler then spoke to her three other
children to learn whether any of them had also been sexually abused by
Appellant. One of Keeler's other children, D.H., who was 13 years old at that
time, reported one such incident when he had been between five and seven
years old. Both children claimed that the offenses had occurred during their
overnight stays in Appellant’s home in Lancaster County, Pennsylvania.
Keeler contacted the children’s uncle, A.H., to discuss what K.C. and
D.H. had told her. A.H., in turn, relayed those the allegations to the police,
and when doing so, he disclosed his own single incident of abuse that had
allegedly occurred in Appellant’s Delaware home about 17 year earlier, when
A.H. was six or seven years old – he was about 23 years old when K.C. came
forward.
Appellant was charged with sex crimes against K.C. and D.H., and the
cases of the two minors were consolidated. There was no physical evidence
that incriminated Appellant or otherwise corroborated the accounts of K.C.
and D.H. To help prove Appellant’s guilt as to those two victims, the
Commonwealth sought to admit into evidence the allegations of A.H. as prior
bad acts under Pennsylvania Rule of Evidence 404(b)(2). The Commonwealth
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asserted that the prior bad acts detailed by A.H. established that Appellant
had a common plan or scheme to sexually molest the children in his family. 1
Prior to trial, Appellant moved to sever the cases of K.C. and D.H.,
arguing that trying them together would be unduly prejudicial because the
alleged circumstances of the offenses against each child were not relevant to
the other. Appellant also contended that A.H.’s allegations should be excluded
from the evidence because they would be improperly used by the
Commonwealth to suggest that Appellant had a propensity to sexually abuse
children. The trial court denied the severance motion, and ruled that A.H.’s
testimony would be admissible. A.H. went on to testify regarding the incident
in Delaware which he had reported to the police.2
As to the charges relating to K.C., the jury found Appellant guilty of one
count of rape of a child; one count of involuntary deviate sexual intercourse
with a child; one count of unlawful contact with a minor; one count of
corruption of minors; and one count of indecent assault of a person less than
13 years of age. As to the charges relating to D.H., the jury found Appellant
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1 The record reflects that, as of the date of Appellant’s trial in Pennsylvania,
there was a pending criminal case in Delaware, where A.H. was the alleged victim.
2 The trial court instructed the jury that A.H.’s testimony was presented for
the limited purpose of proving a common plan or scheme to commit the charged offenses against K.C. and D.H. The jury was also told not to regard A.H.’s testimony as evidence that Appellant had a bad character or criminal propensities. See N.T. Trial, 9/16/2022, at 469-70.
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guilty of one count of indecent assault of a person less than 13 years of age;
one count of corruption of minors; and one count of unlawful contact with a
minor.
Appellant was sentenced as outlined above, and he filed a post-sentence
motion in which he argued that the admission of A.H.’s testimony and the
denial of severance were improper. The post-sentence motion was denied,
and Appellant timely appealed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925. In his brief, Appellant now raises two issues for our
consideration:
[I] Whether the trial court committed a reversible error of law in its misapplication of the standard set forth in Pa.R.E. 404(b), specifically by permitting the introduction of A.H.'s testimony[.]
[II] Did the trial court error in refusing to grant [Appellant’s] pretrial motion to sever the above-referenced dockets, which allowed the jury to be exposed to highly inflammatory incriminating evidence of another child sex related criminal offense involving a minor of the opposite sex?
Appellant’s Brief, at 6 (suggested answers omitted).
In his first claim, Appellant asserts that the trial court erred in admitting
A.H.’s testimony regarding an alleged sexual assault in Delaware because the
circumstances of that incident contrasted with those described by K.C. and
D.H. According to Appellant, A.H.’s testimony was inadmissible under Pa.R.E.
404(b), as it constituted mere propensity evidence which deprived him of a
fair trial.
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On review of a trial court’s ruling on the admissibility of evidence, this
Court applies an abuse of discretion standard. See Commonwealth v.
Arrington, 86 A.3d 831, 842 (Pa. 2014). “Evidence is admissible if it is
relevant – that is, if it tends to establish a material fact, makes a fact at issue
more or less probable, or supports a reasonable inference supporting a
material fact – and its probative value outweighs the likelihood of unfair
prejudice.” Commonwealth v. Boczkowski, 846 A.2d 75, 88 (Pa.
2004) (internal citations omitted).
Pennsylvania Rule of Evidence 404(b)(1) prohibits the use of prior bad
acts “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). Exceptions to that rule are enumerated in Rule 404(b)(2), which
allows evidence of prior bad acts to be admitted if used to prove a defendant’s
“opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident.” Pa.R.E. 404(b)(2). Further, in order for
evidence of other crimes to be admissible, its probative value must outweigh
its potential for unfair prejudice against the defendant. See id.
It has long been recognized that caution is warranted when the
prosecution seeks to admit evidence of prior bad acts because it may so easily
be used to undermine the presumption of a defendant’s innocence. See
Shaffner v. Commonwealth, 72 Pa. 60, 65 (Pa. 1872) (“It is not proper to
raise a presumption of guilt, on the ground, that having committed one crime,
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the depravity it exhibits makes it likely he would commit another.”); see also
Commonwealth v. Trowery, 235 A.2d 171, 172 (Pa. Super. 1967) (“The
presumed effect of such evidence is to predispose the minds of the jurors to
believe the accused guilty, and thus effectually to strip him of the presumption
of innocence.”).
In Commonwealth v. Hicks, 156 A.3d 1114 (Pa. 2017), our Supreme
Court reaffirmed that prior bad act evidence is subject to stringent
admissibility requirements, especially where the prosecution relies on the
“common plan or scheme” exception of Rule 404(b)(2). To satisfy this
exception, there must be a “striking similarity – or logical connection –
between the proffered prior bad acts and the underlying charged crime.”
Hicks, 156 A.3d at 1125 (emphases added).3
This logical connection “must have existed in the mind of the actor,
linking them together for some purpose he intended to accomplish; or it must
be necessary to identify the person of the actor, by a connection which shows
that he who committed the one must have done the other.” Id. (quoting
Shaffner, at 72 Pa. at 65). Prior bad acts may be admissible if they are
3 As discussed in the dissenting and concurring opinions of Hicks, the “common plan or scheme” exception of Rule 404(b)(2) has often been conflated in decisional law with the distinct “identity” (or modus operandi) exception enumerated separately in that same rule. See Commonwealth v. Hicks, 156 A.3d 1114, 1130-31 (Pa. 2017) (Saylor, J., concurring); see also id., at 1143-44 (Donohue, J., dissenting). The Hicks majority seemed to blend the two concepts together as alternative parts of a single exception, and as the holding is binding, that approach has been applied here.
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“strikingly similar” to the alleged crimes, or committed in a way “so unusual
or distinctive as to be like a signature.” Hicks, 156 A.3d at 1125-26 (quoting
Commonwealth v. Rush, 646 A.2d 557, 560-61 (Pa. 1994)). We have
compared a common plan to “a script or playbook of criminal tactics that
worked for the offender when committing past crimes.” Commonwealth v.
Cosby, 224 A.3d 372, 402 (Pa. Super. 2019), vacated on other grounds,
252 A.3d 1092 (Pa. 2021).
These exceptions “cannot be stretched in ways that effectively eradicate
[Rule 404(b)(1)].” Commonwealth v. Ross, 57 A.3d 85, 104 (Pa. Super.
2012) (en banc). Indeed, “much more is demanded than the mere repeated
commission of crimes of the same class[.]” Hicks, 156 A.3d at 1126 (quoting
Rush, 646 A.2d at 561). “Rather, there must be such a high correlation in
the details of the crimes that proof that the defendant committed one makes
it very unlikely that anyone else but the defendant committed the others."
See Commonwealth v. Morris, 425 A.2d 715, 721 (Pa. 1981). The prior
bad acts must have a “close factual nexus sufficient to demonstrate the[ir]
connective relevance” to the charged crimes. Ross, 57 A.3d at 104.
Factors that may establish the required similarity include “the elapsed
time between the crimes, the geographical proximity of the crime scenes, and
the manner in which the crimes were committed.” Commonwealth v.
Taylor, 671 A.2d 235, 240 (Pa. Super. 1996). “Furthermore, the importance
of the intervening time period is inversely proportional to the similarity of the
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crimes in question.” Commonwealth v. Einhorn, 911 A.2d 960, 967 (Pa.
Super. 2006) (internal quotes omitted); see also Commonwealth v.
Aikens, 990 A.2d 1181, 1186 (Pa. Superior. 2010) (holding that the strong
parallels between two offenses outweighed the lengthy intervening time
period between them).
In the present case, the trial court reasoned that Appellant’s prior bad
acts against A.H. were admissible as “evidence of common scheme, plan, or
design,” because his conduct “fit a certain pattern.” Trial Court 1925(a)
Opinion, 9/26/2023, at 5-6. Of course, the trial court did not state precisely
what this “certain pattern” was, instead vaguely alluding to “abuse [of K.C.,
D.H., and A.H.] starting around the same age.” Id., at 5. The trial court was
vague out of necessity, having acknowledged in its 1925(a) opinion that A.H.’s
testimony had a number of “dissimilarities from the present case’s
circumstances.” Id., at 6.
Due to those marked differences, we cannot agree with the trial court’s
conclusion that A.H.’s testimony regarding Appellant’s prior bad acts was
admissible as evidence of a common plan or scheme. There is no rational way
to construe the three accounts of K.C., D.H., and A.H. as being somehow
linked together for a “common purpose” in the mind of Appellant. Nor can the
alleged offenses be characterized as being “strikingly similar,” as is required
to comport with Rule 404(b)(2) and controlling decisional law.
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To summarize, K.C. alleged that her abuse occurred when she was
between seven to 12 years old, starting in 2010, when she began having
overnight visits at a house in Pennsylvania that belonged to her grandmother’s
boyfriend, Appellant. During that period, she and her younger brother, D.H.,
would often sleep in the living room with Appellant. As alleged, he would wake
K.C. up at night and digitally penetrate her under her underwear. On other
occasions, Appellant would force K.C. to touch his penis with her hands, and
then put his penis in her mouth. Appellant would also sexually assault K.C.
whenever she went to the bathroom, where he would force her to perform
oral sex. At least once, Appellant ejaculated in K.C.’s mouth. She was
frequently told by Appellant after these incidents not to tell anyone about their
“secret.”
D.H. reported only a single incident that occurred when he was between
five and seven years old. During an overnight visit to Appellant’s home, he
was woken in the living room as Appellant began rubbing the child’s genitals.
D.H. told Appellant to stop, at which point Appellant withdrew his hand. D.H.
then went to sleep, and he did not report that any further instances of abuse
had happened thereafter.
A.H., the uncle of K.C. and D.H., alleged that he was sexually abused
on a single occasion by Appellant when he was between six and seven years
old. This would have been in 2003 or 2004, about seven or eight years before
the abuse of K.C. began. At that time, he and his mother, Appellant’s
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girlfriend, lived in Appellant’s house in Delaware. At some point in the morning
or early afternoon, when no one else was home, Appellant touched A.H.’s
penis with his hand and put A.H.’s penis in his mouth. Appellant also
nonverbally directed A.H. to “lick his butt” as he stood facing away from A.H.
and bent forward. N.T. Trial, 9/15/2022, at 265-66. A.H. did not recall
Appellant ever telling him to keep the incident a secret. See id. at 267.
These facts do not satisfy the propensity evidence exceptions invoked
by the Commonwealth at trial. There is no apparent common plan or scheme
that Appellant would have had in his mind at the time the offenses were
alleged to have occurred. Nor is there anything unique, distinct, or unusual
about the manner in which the victims were sexually abused such that we can
discern a close factual nexus sufficient to demonstrate their connective
relevance. See Ross, 57 A.3d at 104. Sex crimes against minor children, by
definition, involve a sexual act on a child, and that is the extent of the material
similarities between the offenses described here. See Commonwealth v.
Bidwell, 195 A.3d 610, 627 (Pa. Super. 2018) (“Similarities cannot be
confined to insignificant details that would likely be common elements
regardless of the individual committing the crime.”).
In K.C.’s account, Appellant abused her over a period of several years;
Appellant digitally penetrated her and forced her to perform oral sex in both
the living room and bathroom of his house. D.H. stated that Appellant rubbed
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his genitals over his pants on one occasion, and that after telling Appellant to
stop, the touching ceased, and never occurred again.
The prior bad acts disclosed by A.H. have very little in common with the
offenses described by either K.C. or D.H. In addition to taking place in a
different state, a different time of day, and several years before the abuse of
K.C. began, A.H. was forced to perform anilingus on, and receive fellatio from,
Appellant. K.C.’s abuse spanned several years, and not one of the incidents
in that time involved the types of sexual acts described by A.H. The acts
described by D.H. are also entirely distinct from those alleged by his uncle.
The facts before us are analogous to those in cases where it was held
that prior bad acts did not show a common scheme or unique signature
relevant to the charged offenses. See Ross, 85 A.3d at 104 (reversing
murder conviction because the trial court had improperly admitted evidence
of the defendant's past violent abuse of women as proof of a common scheme
to rape and murder the victim).
In Commonwealth v. Kasko, 469 A.2d 181 (Pa. Super. 1981), a case
highlighted by Appellant, this Court reversed a defendant’s judgment of
sentence because his two cases had been erroneously consolidated pursuant
to the common scheme exception of Rule 404(b)(2). The material facts of
Kasko are as follows:
The criminal activities encompassed by the first of the two consolidated cases were alleged to have occurred “on or about February or March of 1980.” In this case, appellant was charged with sexually molesting his girlfriend's six-year-old niece while the
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girlfriend baby-sat the child at an apartment shared by the girlfriend and her sister, the child's mother. The specific acts alleged involved the touching of appellant's exposed genitals to the child's anal area, and anal intercourse. These acts were alleged to have occurred in the presence of appellant's girlfriend.
The second of the two consolidated cases alleged similar misconduct with the four-year-old daughter of appellant's step- sister, as well as the corruption of this child and the five-year-old son of appellant's other step-sister by teaching or encouraging the two to have indecent contact with each other. These offenses allegedly occurred sometime between December 15, 1980 and January 26, 1981, while the children were visiting their grandmother at her apartment, which was shared by appellant. These incidents were not alleged to have been committed in the presence of appellant's girlfriend or any other adult.
Kasko, at 183-84.
This Court observed in Kasko that the victims in the defendant’s two
cases both involved “children of a similar age group, having a family or
personal link to the appellant . . . and [i]n both cases [the defendant] was
accused of roughly the same type of misconduct.” Kasko, 469 A.2d at 185.
Despite those similarities, the Kasko Court held that that the common scheme
exception had not been satisfied:
[T]he two cases were separated by a substantial period of time and involved different victims. They occurred under dissimilar circumstances in that one allegedly occurred in the presence of appellant's girlfriend, later his wife, while the other did not. One case involved both a young boy and a young girl, whereas the other only involved a young girl. Finally, the misconduct alleged in this case is, sadly, not as rare as it should be, but is rather a common form of child abuse. Under these circumstances, we cannot agree that the two cases reach that high degree of correlation in detail required to show a common scheme, plan or design.
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Kasko, 469 A.2d at 185.
Another analogous case that entitles Appellant to relief is our more
recent decision in Commonwealth v. Roman-Rosa, No. 111 MDA 2023 (Pa.
Super. filed December 6, 2023) (unpublished memorandum), where the issue
was whether two sexual abuse cases were properly consolidated based on the
common scheme exception of Rule 404(b)(2). The first victim was the
daughter of the defendant’s girlfriend, both of whom lived in the defendant’s
home. At age three or four, the defendant would take off the first victim’s
clothes and touch her vagina; by age six, the defendant progressed to vaginal
penetration with his penis.
The second victim was the daughter of the defendant’s subsequent
girlfriend. The only incident of abuse of the second victim took place when
she was a teenager; while the defendant and the second victim were in bed,
the defendant fondled her under her clothing.
The defendant was charged with sex offenses as to both the first victim
and the second victim. The trial court approved the consolidation of the cases,
and on appeal, this Court had to determine whether the consolidation was
permissible pursuant to the common scheme exception in Rule 404(b)(2).
We held that the acts were not strikingly similar, precluding the
admission of evidence of one case in the other under Rule 404(b)(2). The
pattern of molestation was distinct for each of the victims – “the only real
similarity in these crimes is the victim being the daughter of Appellant’s
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girlfriend, which is more akin to an insignificant detail common to many
offenders who sexually abuse their victims.” Roman-Rosa, No. 111 MDA
2023, at 16; see also Bidwell, 195 A.3d at 627 (holding that a common
scheme was not established by evidence that defendant “was a domestic
abuser of women, some of whom he was involved in on-going romantic
relationships in the past[.]”).4
Here, as in Roman-Rosa, the acts collectively described by K.C., D.H.,
and A.H. did not demonstrate a distinct pattern of conduct by Appellant. The
primary similarity in the crimes was that each victim was the child or
grandchild of Appellant’s girlfriend, which is the kind of familial connection
that is all too common when children are sexually abused. Since the prior bad
acts here amounted to no more than crimes of the same class as the charged
offenses, they should not have been admitted into evidence at trial. See
Hicks, 156 A.3d at 1126. By yet finding that such circumstances qualify as a
common scheme for the purposes of Rule 404(b)(2), the trial court flouted
our Supreme Court’s mandate in Hicks.5
4 This Court affirmed the judgment of sentence in Roman-Rosa because it
found that the trial court’s error in admitting evidence of prior bad acts was ultimately harmless under the unique circumstances of the case, including the jury’s verdict, which partially acquitted the defendant. See Roman-Rosa, No. 111 MDA 2023, at 18 (Pa. Super. filed December 6, 2023) (unpublished memorandum).
5 Because the admission of A.H.’s allegations violated Rule 404(b)(1), and no
exception under Rule 404(b)(2) was satisfied, it is unnecessary for this Court (Footnote Continued Next Page)
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Admitting evidence of Appellant's crimes against A.H. was not harmless.
“Evidence of prior criminal activity . . . is probably only equaled by a confession
in its prejudicial impact upon a jury.” Commonwealth v. Spruill, 391 A.2d
1048, 1050 (Pa. 1978). “The presumed effect of such evidence is to
predispose the minds of the jurors to believe the accused guilty, and thus
effectually to strip him of the presumption of innocence.” Trowery, 235 A.2d
at 172; see also Hicks, 156 A.3d at 1157 (Wecht, J., dissenting) (“It is
natural and well-nigh inevitable . . . that a juror will conclude that, if a person
has assaulted women before, he likely will do so again.”).
Indeed, the testimony of A.H. could have persuaded the jury to infer
that Appellant was predisposed to sexually abuse children, making it more
likely that he committed the charged crimes against K.C. and D.H. In a case
like this one, where there was no physical evidence of Appellant’s guilt, the
credibility of the victims was the ultimate issue for the jury to resolve.
Allowing A.H. to testify as to Appellant’s prior bad acts prejudiced him because
such testimony could have improperly bolstered the credibility of K.C. and
D.H., and led the jury to believe that Appellant was guilty not because of the
evidence, but due to a perceived propensity for him to sexually abuse children.
See Roman-Rosa, No. 111 MDA 2023, at 20 (“The fact that credibility is
to address whether the probative value of that evidence outweighed any prejudicial effect under Rule 404(b)(3). See Commonwealth v. Ross, 57 A.3d 85, 104 n.18 (Pa. Super. 2012) (en banc).
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paramount in sexual abuse cases renders it virtually impossible for this Court
to state that the evidence of guilt was so overwhelming” that the evidence
could not have contributed to the verdict). To remedy the prejudicial
admission of propensity evidence, the judgment of sentence must be vacated,
and Appellant must receive a new trial.
Having disposed of Appellant’s first issue in his favor, we now turn to
his second claim – that the trial court erroneously denied his motion to sever
the cases of K.C. and D.H.
Pennsylvania Rule of Criminal Procedure 582 provides that separate
cases may be tried together if:
(a) 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; or
(b) the offenses charged are based on the same act or transaction.
Pa.R.Crim.P. 582(A)(1).
Further, Rule 583 allows courts to “order separate trials of offenses or
defendants, or provide other appropriate relief, if it appears that any party
may be prejudiced by offenses or defendants being tried
together.” Pa.R.Crim.P. 583.
“The general policy of the laws is to encourage joinder of offenses and
consolidation of indictments when judicial economy can thereby be effected,
especially when the result will be to avoid the expensive and time consuming
duplication of evidence.” Commonwealth v. Johnson, 236 A.3d 1141, 1150
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(Pa. Super. 2020) (citation omitted). “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).
Here, Appellant’s severance claim on appeal is a closer question than
the evidentiary issue discussed above because the testimony of A.H. does not
come into play. The trial court had discretion to consolidate the cases of K.C.
and D.H. as long as “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)(b). The
Commonwealth had argued, and the trial court found, that the cases could be
joined because the evidence of the victims’ offenses established a common
plan or scheme under Pa.R.E. 404(b)(2). See Trial Court Opinion, 9/26/2023,
at 2-5.
The record shows that the trial court acted within its discretion in
consolidating the cases for trial. At the relevant times, the victims, K.C. and
D.H., were siblings who both regularly spent the night at Appellant’s home.
D.H.’s age at the time of his incident with Appellant was close to the age of
K.C. when she was first abused by Appellant. The offenses against the
children also occurred under similar circumstances (late at night during “a
sleepover”), in the same place (Appellant’s living room, where the children
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slept when they visited the home), and within a relatively close period of
time.6
Additionally, Appellant did not suffer any undue prejudice from the
consolidation of the cases for trial because the jury would have easily been
able to parse the charges in each victim’s case. The ongoing abuse of K.C., a
female, and the single instance of abuse against D.H., a male, would have
made the facts in the respective cases distinguishable. There was minimal
danger that the jury would have confused the two cases or somehow conflated
them with each other. Thus, since the common plan exception of Pa.R.E.
404(b)(2) was met with respect to K.C. and D.H., the trial court acted within
its discretion in denying Appellant’s motion to sever the two victims’ cases.
See e.g., Commonwealth v. Renninger, 269 A.3d 548, 564 (Pa. Super.
2022) (affirming denial of severance where evidence in two cases showed that
defendant had similarly touched the victims over their clothes, and the
commonality of that behavior refuted the defense that the touching was
accidental); Aikens, 990 A.2d at 1185-86 (holding that common scheme
linked two cases, warranting joinder, where both victims were siblings,
defendant initiated sexual contact in bed during overnight visits, and the
outset of abuse fit a unique pattern of conduct).
6 The offenses against K.C. took place between 2010 and 2017.The offense against D.H. overlapped with that period, taking place between 2012 and 2014.
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Judgment of sentence vacated. Case remanded for further proceedings
consistent with this memorandum. Jurisdiction relinquished.
Judge Bowes joins the memorandum.
Judge Murray files a concurring and dissenting memorandum.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 11/01/2024
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