J-A07034-24
2024 PA Super 305
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
RICHARD GARNETT : No. 706 MDA 2023
Appeal from the Order Entered April 12, 2023
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0002265-2021
BEFORE: STABILE, J., SULLIVAN, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED: DECEMBER 18, 2024
The Commonwealth appeals1 from the April 12, 2023 order denying its
motion filed pursuant to Pa.R.E. 404(b) which sought to introduce evidence of
Appellee’s two prior convictions for involuntary deviate sexual intercourse
(“IDSI”) with a child.2 After careful review, we reverse the order and remand
for proceedings consistent with this opinion.
The trial court summarized the relevant facts and procedural history of
this case as follows:
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 The Commonwealth certified, pursuant to Pa.R.A.P. 311(d), that the trial
court’s April 12, 2023 order will terminate or substantially handicap the
prosecution.
2 18 Pa.C.S.A. § 3123(b).
J-A07034-24
The Commonwealth presented the testimony of J.D.
at the June 29, 2021 preliminary hearing. The
twenty-three-year old testified that he was the victim
of sexual assaults at the Roaring Brook Baptist Church
in Hunlock Creek when he was approximately seven
or eight years old. J.D. testified that he attended the
church with his parents and that for a few months he
participated in a youth bible study called Awana class
once a week. He thought that there were about ten
or fifteen children in the class. He said the children
would meet on the main floor of the church and a
teacher would take them downstairs to a classroom in
the basement. He said the class lasted about an hour
and that it would be supervised by a female teacher.
J.D. said that on more than one occasion he was taken
out of the classroom by an individual he described as
“an older gentleman, middle-aged. He – at the time,
he was round-faced, salt-and-pepper scuff.” He said
he was the only child removed from the classroom by
that person. He recalled the first time he was taken
out of the classroom and said that he was escorted
down the hall of the basement into a smaller room on
the other side of the bathroom. He said it was dark
and he didn’t see much. He testified that when he and
the man were in the room, the man would lift up “like
a black robe, a dress, something along those lines”
and remove his pants. He said that after the man
removed his pants he would instruct him to touch and
stroke the man’s penis with J.D.’s hand. He said after
it was over, the man brought him back to the
classroom. He said the same thing happened on more
than one occasion. He testified that when the man
spoke to him during the assaults, it was “mostly
religious” and he said things like “it was between us
and God” and “it’s God’s will.” However, on one of
those occasions, he said the man told J.D. to insert
his penis into his mouth. He said after the man
“finished” – or ejaculated – the man told J.D. to go to
the bathroom to clean up and then escorted him back
to the room. J.D. did not tell anyone about the
assaults until he discussed it with his mother when he
was eighteen years old. She called the police
immediately and J.D. first met with officers to discuss
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the incidents on February 24, 2017. He said he
described his assailant as “middle-aged, heavyset,
round face, salt-and-pepper beard, and glasses.” He
told police the assailant was the pastor, a man named
Dan[iel] Brubaker. He said at some point in time he
was provided two photographs by police and asked if
either looked like it could be the assailant. He was
able to tell that the photograph of Daniel Brubaker
was “not it.” He said the second photograph was
“almost a spitting image” of the man who assaulted
him.
The Commonwealth also presented the testimony of
Corporal Robert Betnar, who has been employed as a
Pennsylvania State Trooper for twenty-three years.
Trooper Betnar testified that he investigated the
allegations made by J.D. After reviewing documents
obtained from the Roaring Creek Baptist Church, he
was able to confirm that J.D. attended Awana classes
at the church “in and around the year 2006.” He was
also able to confirm that a man named Daniel
Brubaker had been a pastor at the church during the
time J.D. attended classes. He testified that the First
Daniel Brubaker did not fit the physical description of
the man that assaulted J.D. Corporal Betnar testified
that he ran the name “Daniel Brubaker” through the
Commonwealth of Pennsylvania database and found
that there were three “Daniel Brubakers” in the
database. He testified that he printed the three
pictures and had them with him during an interview
with J.D. Corporal Betnar said his plan was to show
J.D. the photographs at some point during the
interview, but very early on, J.D. reached over and
pointed at a picture. He testified that J.D. said,
“That’s the individual that did this to me.” He also
testified that after looking at the pictures, J.D.
specifically indicated that the First Daniel Brubaker
was not his assailant.
The photograph J.D. pointed to was a picture of a man
also named Daniel Brubaker, who is a minister in the
Lancaster area (“The Second Daniel Brubaker”).
Corporal Betnar was able to determine from his
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investigation that J.D. had no connection to the
Second Daniel Brubaker.
Corporal Betnar testified that as the investigation
continued, the police interviewed parents and
students who were members of the Awana classes.
[Appellee’s] name surfaced during the investigation
and police produced his driver’s license photograph.
Corporal Betnar said that the similarities between the
photograph of the Second Daniel Brubaker and
[Appellee] were striking and that the two “appeared
to be twins at points.”
Corporal Betnar testified that during the relevant time
period, [Appellee] had been the games instructor with
the Awana classes. The corporal said that sometime
during the Awana classes [Appellee] would play and
engage in games with the students. He further
testified that during the course of the investigation,
police were not able to identify anyone else matching
the physical description given by J.D.
On August 26, 2021, the criminal information was filed
charging [Appellee] with one count of indecent assault
– person less than thirteen years of age; one count of
statutory sexual assault; one count of [IDSI] with a
child; one count of endangering the welfare of
children; and one count of corruption of minors. [See
18 Pa.C.S.A. §§ 3126(a)(7), 3122.1, 3123(b),
4304(a), and 6301(a)(1), respectively.]
On October 31, 2022, the Commonwealth filed a
motion pursuant to Pa.R.E. 404(b), seeking to
introduce evidence of [Appellee’s] two prior
convictions at trial. On January 19, 2023, [Appellee]
filed a motion to quash, alleging that the
Commonwealth did not sufficiently establish
[Appellee] as the perpetrator of the offenses against
J.D. at the preliminary hearing. On February 13,
2023, a hearing was held before this court on both
motions.
At the hearing, the Commonwealth presented the
testimony of Trooper Andrew Morgantini in support of
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its 404(b) motion. Trooper Morgantini testified that
he was involved in the investigation surrounding J.D.’s
complaint. Corporal Betnar had already begun the
investigation when Trooper Morgantini became
involved. The trooper testified that his assignment
was to interview students who had been in the Awana
classes at the same time as J.D. He testified that
while he was reviewing a report, Trooper Weaver was
interviewing one of the students when the student
described a man he had been alone with in the
basement. The child’s mother heard the description
and said “that sounds like [Appellee].”
Trooper Morgantini said that in addition to
interviewing several students, he also interviewed the
mother of two of the students. As he was interviewing
her, she described teachers who were associated with
the Awana classes. She described [Appellee] as the
games director and said that she was related to him.
The trooper said she told him that [Appellee] had
sexually assaulted a seven-year-old girl
approximately 40 years ago. She then told him that
a woman named “T.K.” would have more information
about the incident.
Trooper Morgantini testified that, after receiving the
information that [Appellee] may have been involved
in a different sexual assault, an investigation into that
claim was started. During the course of that
investigation, the trooper learned that [Appellee]
sexually assaulted two minor victims. On March 1,
2021, [Appellee] pled guilty at case number 2335 of
2020 to two counts of IDSI – victim less than 16 years
of age – for criminal acts taking place between 35 and
40 years ago. [Appellee was sentenced in connection
with these crimes on June 17, 2021.] The victims
were V.E., [Appellee’s] stepdaughter, and T.K., his
niece by marriage. The affidavit of probable cause for
case number 2335 of 2020 sets forth the following
facts: Trooper Morgantini interviewed T.K. on
December 11, 2018. She said she had difficulty
remembering details but that she clearly remembers
being assaulted by [Appellee] at least one time, but
that it may have happened a couple of times. She did
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not know how old she was at the time but said that
the assault occurred before she was in middle school.
She said the assault occurred in the bedroom of
[Appellee’s] house while she was staying there
overnight with [Appellee’s] stepdaughter V.E. She
said he penetrated her anally with his penis. She did
not remember if she was assaulted other ways as well.
She also said that V.E. was present during the assault.
Trooper Morgantini interviewed V.E. on July 7, 2020.
She said that she was sexually assaulted by her
stepfather [Appellee] on multiple occasions from the
ages of ten to thirteen and possibly earlier. She said
these assaults took place in her bedroom every Friday
between 5:00 p.m. and 10:00 p.m., when her mother
went grocery shopping with her grandmother and her
aunt. She said the incidents always involved oral sex
and that he never penetrated her vaginally or anally.
She said there was an incident when he came in her
bedroom, kissed her buttocks, and she performed oral
sex on him. She said the incidents stopped when she
started “developing.” V.E. said she believed that T.K.
was also sexually assaulted by [Appellee].
Trial court opinion, 7/26/23 at 1-6 (citations to notes of testimony,
parentheticals, and footnotes omitted).
On April 12, 2023, the trial court entered an order denying both
Appellee’s “motion to quash,” which it treated as a motion for writ of habeas
corpus, and the Commonwealth’s motion to introduce Rule 404(b) evidence.
Thereafter, on May 12, 2023, the Commonwealth filed a timely notice of
appeal, indicating that the April 12, 2023 order will terminate or substantially
handicap its prosecution.3
____________________________________________
3 The Commonwealth and the trial court have complied with Pa.R.A.P. 1925.
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The Commonwealth raises the following issue for our review:
Is the Commonwealth permitted to offer relevant
evidence about the course of a police investigation for
the limited purpose of showing the manner in which
the police initially identified [Appellee] and rebutting
a misidentification defense merely because that
evidence relates to [Appellee’s] prior crimes, even
though the evidence is clearly not being offered to
show propensity?
Commonwealth’s brief at 4.
“[T]he 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.” Commonwealth v. Fransen, 42 A.3d 1100, 1106
(Pa.Super. 2012) (citation omitted), appeal denied,
76 A.3d 538 (Pa. 2013).
“An abuse of discretion is not merely an error in 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. Belknap,
105 A.3d
7, 10 (Pa.Super. 2014) (citation omitted), appeal denied,
117 A.3d 294 (Pa.
2015).
It is well settled that “evidence of prior crimes is not admissible for the
sole purpose of demonstrating a criminal defendant’s propensity to commit
crimes.” Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, 1283
(Pa.Super. 2004) (en banc); see also Pa.R.E. 404(b)(1). Nevertheless,
“[e]vidence may be admissible in certain circumstances where it is relevant
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for some other legitimate purpose and not utilized solely to blacken the
defendant’s character.” Id.
Specifically, evidence of other crimes or bad acts may be admissible to
show “motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake.” Commonwealth v. Hairston, 84 A.3d 657, 665 (Pa.
2014) (citations omitted), cert. denied,
574 U.S. 863 (2014); see also
Pa.R.E. 404(b)(2). Evidence of this kind may also be admissible under the
res gestae exception, “where such evidence became part of history of the
case and formed part of the natural development of facts.” Commonwealth
v. Ivy,
146 A.3d 241, 251, (Pa.Super. 2016) (citation omitted); see also
Commonwealth v. Dillon,
925 A.2d 131, 137 (Pa. 2007) (stating, “this Court
has recognized a res gestae exception to Rule 404(b) which allows admission
of other crimes evidence when relevant to furnish the context or complete
story of the events surrounding a crime.” (citation omitted)).
Lastly, we note that when offered for a legitimate purpose, evidence of
prior crimes or bad acts is admissible “if the probative value of the evidence
outweighs its potential for unfair prejudice.” Hairston, 84 A.3d at 665
(citation omitted).
Upon review, we agree with the Commonwealth that evidence of
Appellee’s prior convictions for IDSI were relevant to demonstrate the res
gestae, or complete story, of law enforcement’s extensive investigatory
process in this matter; to show the manner in which J.D.’s initial mistaken
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identification of his abuser as the Second Daniel Brubaker instead of the
similarly-looking Appellee was ultimately discovered and resolved; and to
rebut Appellee’s defense of misidentification.
We further agree with the Commonwealth that the probative value of
the aforementioned evidence outweighs its prejudicial effect. “[T]he trial
court is not required to sanitize the trial to eliminate all unpleasant facts from
the jury’s consideration where those 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.” Hairston, 84 A.3d at 666.
Here, in our estimation, the challenged evidence would not be so unduly
prejudicial that it would likely divert the jury’s intention away from its duty of
weighing the evidence impartially.4
Based on the foregoing, we find that the trial court erred in denying the
Commonwealth’s motion to introduce Rule 404(b) evidence. Accordingly, we
reverse the April 12, 2023 order of the Honorable Joseph F. Sklarosky, Jr.,
and remand this matter for further proceedings consistent with this opinion.
____________________________________________
4 In reaching this conclusion, we note that Appellee has not filed a brief in this
matter.
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Order reversed. Case remanded for further proceedings. Jurisdiction
relinquished.
Judge Stabile joins the Opinion.
Judge Sullivan notes dissent.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 12/18/2024
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