J-S60011-19
2019 PA Super 362
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAFAEL SAEZ :
:
Appellant : No. 1967 MDA 2018
Appeal from the Judgment of Sentence Entered October 5, 2018
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0005489-2017
BEFORE: SHOGAN, J., STABILE, J., and PELLEGRINI, J.*
OPINION BY SHOGAN, J.: FILED DECEMBER 20, 2019
Appellant, Rafael Saez, appeals from the October 5, 2018 judgment of
sentence imposed by the Court of Common Pleas of Lancaster County
following a jury trial. We affirm.
The trial court summarized the facts and procedural history of this case
as follows:
[Appellant] was convicted of involuntary deviate sexual
intercourse, indecent assault, and attempted indecent assault
following allegations made by his step-daughter, J.C. [also
referred to as “Victim”] that he had been sexually abusing her for
two years. In 2013, [Appellant had] moved into his girlfriend’s
home, where she lived with her daughter, J.C., and five sons. J.C.
was nine years old when she first remembered her “step-dad
touch[ing her] in a wrong way.” (J.C. Trial Testimony at 69, June
25, 2018). At that time her room was on the second floor of the
house, though two years later she moved up to an attic bedroom.
During trial, she testified that the assaults started in the middle
room, and then...came to the attic.” (Id. at 71). [Appellant]
groped her “chest” and “where [she] use[s] the bathroom” in the
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* Retired Senior Judge assigned to the Superior Court.
J-S60011-19
room on the middle floor, in her attic bedroom, in the kitchen while
she was cooking, and once in the living room. (Id. at 71, 75, 79).
[Appellant] would approach J.C. during times when her mother
was not home, when she was “at work or out shopping,” after
sending the boys outside or upstairs. (Id. at 79). He repeatedly
came to her attic bedroom when she was alone, took off her
underwear, forced her to masturbate him, engaged in oral
intercourse with her, and vaginally raped her. (Id. at 72-80). At
age thirteen, J.C. found the courage to tell her grandmother
[(“Grandmother”)] about the abuse. [Grandmother] reported the
abuse to the police and an investigation began.
Through the preparation for trial, other allegations surfaced
about [Appellant], namely from his six-year-old biological
daughter [, A.O.,] that she too had been abused by [Appellant] in
the attic of J.C.’s home. I held a Tender Years hearing on this
matter prior to the trial and found her competent to testify and
the allegations similar enough to J.C.’s case to permit them into
evidence.
A jury trial began on June 25, 2018. After three days, the
jury returned a guilty verdict on all counts.[1] I ordered a
presentence investigation, which was returned, and sentencing
occurred on October 5, 2018. At that time, I sentenced
[Appellant] to a total of 16 to 32 years [of] incarceration.
[Appellant] subsequently filed this timely appeal.
Trial Court Opinion, 3/22/19, at 1–2. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
Appellant raises the following issues on appeal:2
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1 Appellant was acquitted of rape of a child and found guilty of one count each
of: involuntary deviate sexual intercourse (“IDSI”), 18 Pa.C.S. § 3123(a)(6);
attempted indecent assault, 18 Pa.C.S. § 901(a); corruption of a minor, 18
Pa.C.S. § 6301(a)(1)(ii); unlawful contact with a minor, 18 Pa.C.S. §
6318(a)(1); endangering the welfare of children, 18 Pa.C.S. § 4304; and
indecent exposure, 18 Pa.C.S. § 3127(a); and two counts of indecent assault,
18 Pa.C.S. § 3126(a)(7).
2 We have reordered the issues for ease of disposition.
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I. Did the trial court abuse its discretion in finding [Appellant’s]
six year old daughter competent to testify?
II. Did the trial court abuse its discretion in permitting the
Commonwealth to present testimony that [Appellant’s]
biological daughter had recently accused [Appellant] of
abusing her as this evidence was not admissible under any
permitted uses in P.A. Rule of Criminal Procedure
404(b)(2)?
III. Did the trial court abuse its discretion in not permitting
[Appellant] to cross-examine the victim’s grandmother on
how the victim’s disclosure to her came about and the
entirety of their conversation?
Appellant’s Brief at 7.
We address the first two issues in tandem, as they both concern the
revelations of six-year-old A.O. Appellant avers that the trial court abused its
discretion in finding A.O. competent to testify. Appellant’s Brief at 20. He
also contends the trial court abused its discretion in permitting the
Commonwealth to present testimony that A.O., who did not meet Appellant
“until she was 4 years old,” revealed that Appellant also sexually abused her.
Appellant’s Brief at 16; Commonwealth’s Notice of Intent to Introduce
Evidence of Prior Bad Acts, 5/16/18, at ¶ 4. The intent to present A.O.’s
testimony developed procedurally when initially, the Commonwealth filed a
Notice of Intent on April 6, 2018, indicating that it would present the testimony
of Appellant’s sister, A.S., now age thirty, that Appellant had been adjudicated
delinquent of rape and incest relating to A.S. in 2001, when A.S. was twelve
years old. Following a hearing on June 14, 2018, the trial court precluded the
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evidence “on the basis that . . . it [was] too remote in time.” Trial Court
Opinion, 3/22/19, at 5 n.5 (citing N.T., 6/14/18).
Then, on May 16, 2018, the Commonwealth filed a second Notice of
Intent to Introduce Evidence of Prior Bad Acts, indicating that it learned that
A.O. disclosed to her mother’s friend that Appellant had sexually abused her.
Notice of Intent to Introduce Evidence of Prior Bad Acts, 5/16/18, at ¶4; N.T.,
6/26/18, at 204–205. The Commonwealth alleged that A.O. revealed that
Appellant
touched her vaginal area. She was interviewed at the Lancaster
County Children’s Alliance on October 16, 2017. During that
interview, [A.O.] indicated that [Appellant] would put his hands
down her underwear and move his fingers around. She indicated
that he did this more than one time. The child had not met
[Appellant] until she was 4 years old and began having overnight
stays with [Appellant] at that time. This would occur at night
when the child was in bed.
Notice of Intent to Introduce Evidence of Prior Bad Acts, 5/16/18, at ¶4.
Appellant filed a motion in limine that same day requesting, inter alia, that
the trial court also preclude the testimony of A.O. Appellant urged that such
testimony was inadmissible because no charges relating to A.O. had been filed
against him,3 and any probative value of the testimony was outweighed by
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3 Pa.R.E. 404(b) “is not limited to evidence of crimes that have been proven
beyond a reasonable doubt in court. It encompasses both prior crimes and
prior wrongs and acts, the latter of which, by their nature, often lack
‘definitive proof.’” Commonwealth v. Lockcuff, 813 A.2d 857, 861 (Pa.
Super. 2002) (emphases in original).
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the prejudice that would inure to Appellant. Motion in Limine, 5/16/18, at ¶¶
7–9.
A.O. testified at a competency hearing on June 14, 2018. Based on the
colloquy, the trial court concluded that A.O. was competent to testify. At the
conclusion of the hearing, the trial court ruled: “[T]he probative value [of
A.O.’s testimony] does outweigh the potential prejudice [to Appellant]. There
is such a degree of similarity [of the abuse], and it will be admissible, but I
will give counsel an opportunity to submit proposed cautionary instructions
with regard to [A.O.]” N.T., 6/14/18, at 122.
Appellant argues that A.O. was incompetent to testify because her
testimony at the June 14, 2018 hearing was inconsistent. Appellant’s Brief at
21. Appellant underscores, inter alia, that A.O. did not know the date of her
birthday, she could not define “oath,” and she was unable to elaborate on her
use of the word, “stuff.” Id. at 22.
The following precepts are applicable herein. The general rule is that
every person is presumed to be a competent witness. Pa.R.E. 601(a);
Commonwealth v. Judd, 897 A.2d 1224, 1228 (Pa. Super. 2006). Before a
witness under the age of fourteen may testify, Pennsylvania requires the
examination of the witness for competency. Commonwealth v. Pukowsky,
147 A.3d 1229, 1234 (Pa. Super. 2016) (citing Commonwealth v. Moore,
980 A.2d 647, 649–650 (Pa. Super. 2009)). Our standard of review
recognizes that “a child’s competency to testify is a threshold legal issue that
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a trial court must decide, and an appellate court will not disturb its
determination absent an abuse of discretion.” Commonwealth v. Meredith,
___ A.3d ___, ___, 2019 PA Super 308, *2 (Pa. Super. filed October 15, 2019)
(emphasis in original) (citing Commonwealth v. Washington,
722 A.2d
643, 646 (Pa. 1998) (citation omitted)). Our scope of review is plenary.
Meredith, ___ A.3d at ___, 2019 PA Super at *2 (citing Commonwealth v.
Delbridge,
859 A.2d 1254, 1257 (Pa. 2004)). “A party who challenges the
competency of a minor witness must prove by clear and convincing evidence
that the witness lacks ‘the minimal capacity . . . (1) to communicate, (2) to
observe an event and accurately recall that observation, and (3) to understand
the necessity to speak the truth.’” Meredith, ___ A.3d at ___, 2019 PA Super
at *2; see also Rosche v. McCoy,
156 A.2d 307, 310 (Pa. 1959)
(competency of minor witness must reveal capacity to communicate,
remember events, and reveal a consciousness of the duty to speak the truth).
At the June 14, 2018 competency hearing, A.O. initially was questioned
by the Commonwealth and testified, in pertinent part, as follows:
Q [H]ow old are you?
A Six.
Q Six years old. Are you in school?
A Um-hmm.
Q What grade were you in?
A Kindergarten.
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Q Okay. Did you finish school or are you still
in school?
A Yesterday was my last day in school.
Q Okay. So you finished kindergarten yesterday?
A [Affirmative nod.]
Q What grade are you gonna go into next year?
A First grade.
Q Okay. And what school do you go to?
A Price Elementary.
Q Who was your teacher this year?
A Ms. Hammick [phonetic].
Q Do you know who your teacher is gonna be next year yet?
A No, I’m moving to another school next year.
Q You’re gonna go to another school?
A Uh-huh.
Q Okay. Do you know, can you tell us what the
difference between a truth and a lie is?
A The truth is you tell the truth.
Q Okay. What’s a lie?
A You tell a lie when you don’t tell the truth.
Q Okay. And is it good or bad to tell a lie?
A Bad.
Q What would happen if you told your mommy a lie
and she found out?
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A She would ground me.
Q She would ground you, okay.
[The Commonwealth]: Your Honor, at this time I’d
offer her as competent to testify.
THE COURT: Any questions on competence?
[Defense Counsel]: At this time, no, Your Honor.
N.T., 6/14/18, at 103–104.
When A.O. appeared as a witness on the first day of trial, June 25, 2018,
the trial court again conducted an extensive colloquy with her in chambers.
N.T., 6/25/18, at 4–7. In response to questioning by the trial court, A.O. told
the trial court that she had recently lost a tooth, and she related the details.
Id. at 4. A.O. then discussed her prior school year in kindergarten, and she
again identified her teacher by name. Id. at 5. A.O. also described her
favorite activities at school. Id. at 6. Once again, and in response to the trial
court, A.O. demonstrated that she knew the difference between the truth and
a lie, as follows:
THE COURT: Do I have a hat on my head?
[A.O.]: No.
THE COURT: If you said, Judge, you have a hat on your head,
would that be the truth or would that be a lie?
[A.O.]: A lie.
THE COURT: Okay. Now, you see this tie? My wife bought this
for me. Is this tie red?
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[A.O.]: No.
THE COURT: So if I said this tie is red, am I telling the truth or a
lie?
[A.O.]: A lie.
THE COURT: Okay. And I have these scissors, and I’m very
careful with scissors. You need to be careful with scissors. The
handle on the scissors I’m going to say is blue. Is that the truth
or a lie?
[A.O.]: Truth.
THE COURT: Okay. Commonwealth?
[THE COMMONWEALTH]: Your Honor, I would just let the record
reflect the handle of the scissors is blue, your tie is green, and you
are not wearing a hat.
N.T., 6/25/18, at 6–7.
Defense counsel then questioned A.O. When counsel asked A.O. what
an oath is, A.O. did not respond. However, when defense counsel asked, “[I]f
you were to say, I promise to tell the truth, do you know what that means,
what that would mean?” A.O. responded, “I tell the truth for a long time.”
N.T., 6/25/18, at 8. Defense counsel then asked fact questions, A.O. correctly
responded, and counsel asked, “Do you know what you were brought here to
talk about?” Id. at 9. A.O. stated, “To talk about stuff.” Id. When counsel
asked, “Do you know what kind of stuff?” A.O. shook her head no. Id.
Based on this testimony, inter alia, that A.O. could not define an “oath”
and that A.O. could not identify the date of her birthday other than that it
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occurred during kindergarten,4 Appellant asserted at trial and maintains on
appeal that A.O. was not competent to testify. N.T., 6/25/18, at 11;
Appellant’s Brief at 23.
In rejecting Appellant’s claim that it abused its discretion in ruling that
A.O. was a competent witness, the trial court stated the following:
Discretion lies with the trial judge to make the ultimate
decision as to competency[,] and he must determine whether “the
child posseses the capacity to communicate, including both the
ability to understand questions and to frame and express
intelligent answers; the mental capacity to observe the occurrence
itself and the capacity of remembering what it is that the child is
called upon to testify about; and the consciousness of the duty to
speak truthfully.” Commonwealth v. McMaster 666 A.2d 724
(1995); see also Commonwealth v. Barnosky, 400 A.2d 168
(1979) (Determination of competence is left in the sound
discretion of the trial judge who has the opportunity to observe
the testimony of the child). In Commonwealth v. Pankra[]z, a
four-year -old child was found competent where leading questions
showed that she understood the difference between the truth and
a lie and understood her duty to tell the truth, the proponent of
her testimony established her ability to observe and remember
the event, and she was able to understand questions and
communicate intelligent answers. Commonwealth v. Pankraz,
554 A.2d 974 (1989).
…
Following both [competency hearings], I found A.O. competent to
testify. I noted some concern with her understanding of a
“promise” or oath to tell the truth but her response to questions
and her ability to distinguish between the truth and a lie made it
so this slight concern did not disqualify her. This determination
was within my sound discretion, as the trial court judge, and
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4 Although A.O. knew her age, she stated she could not remember her birth
date. N.T., 6/25/18, at 5. When questioned further, A.O. stated it was when
she was in kindergarten. Id. The record reflects that her birthday is during
the school year. Order, 6/22/18.
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should not be disturbed “absent a clear abuse of that discretion.”
McMaster 666 A.2d 724, 727 (citing Commonwealth v. Hart,
460
A.2d 745, 747 (1983)).
Trial Court Opinion, 3/22/19, at 6–8.
Appellant was given ample latitude to cross-examine A.O. with respect
to her ability to understand the difference between the truth and a lie. At the
initial hearing on June 14, 2018, defense counsel asked no questions. N.T.,
6/14/18, at 103–113. On the first day of trial, A.O. demonstrated, through
questioning by the trial court and cross-examination by Appellant in
chambers, that she understood those concepts, as she had at the prior
competency hearing. Appellant’s emphasis on the definition of “oath” is not
an age-appropriate concept, but A.O. clearly was able to demonstrate she
understood the duty to tell the truth. Trial Court Opinion, 3/22/19, at 7 n.6,
8; N.T., 6/25/18, at 4–9. When A.O. took the stand on the second day of
trial, she revealed the ability to perceive and remember the abuse events and
understood and communicated candid, intelligent answers about the abuse.
N.T., 6/26/18, at 208–213. The trial court did not abuse its discretion in
finding A.O. competent to testify as a witness in this case.
Appellant also argues that A.O.’s testimony was not admissible “for any
purpose.” Appellant’s Brief at 18. He contends the allegations by A.O. were
dissimilar from Appellant’s abuse of J.C., the victim herein. Id. at 19.
Appellant suggests that the only similarity between the allegations A.O. made
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against Appellant and the crimes against J.C. was that they were “simply of
the same general class or category of crime: sexual in nature.” Id.
This allegation of error challenges the admission of evidence at trial. We
have stated:
“Questions regarding the admission of evidence are left to the
sound discretion of the trial court, and we, as an appellate court,
will not disturb the trial court’s rulings regarding the admissibility
of evidence absent an abuse of that discretion.” Commonwealth
v. Russell, 938 A.2d 1082, 1091 (Pa. Super. 2007) (citation
omitted). An abuse of discretion is more than a mere error of
judgment; rather, an abuse of discretion will be found when “the
law is overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill-will, as shown by the evidence or the record.”
Commonwealth v. Busanet, 572 Pa. 535,
817 A.2d 1060, 1076
(2002) (citation and quotation omitted).
Pukowsky, 147 A.3d at 1233.
As noted supra, when the Commonwealth filed its second Notice of
Intent to Introduce Evidence of Prior Bad Acts, indicating that it learned that
A.O. disclosed that Appellant also had sexually abused her, Appellant filed a
motion in limine that same day requesting, inter alia, that the trial court also
preclude the testimony of A.O., as it had ruled regarding the testimony of
Appellant’s sister. Appellant contended that such testimony was inadmissible,
and any probative value of the testimony was outweighed by the prejudice
that would inure to Appellant. Motion in Limine, 5/16/18, at ¶¶ 7–9.
When reviewing the denial of a motion in limine, we apply an evidentiary
abuse-of-discretion standard of review. “It is well-established that the
admissibility of evidence is within the discretion of the trial court, and such
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rulings will not form the basis for appellate relief absent an abuse of
discretion.” Commonwealth v. Hoover, 107 A.3d 723, 729 (Pa. 2014).
Indeed:
“When a trial court comes to a conclusion through the
exercise of its discretion, there is a heavy burden on the appellant
to show that this discretion has been abused.” Commonwealth
v. Eichinger, 591 Pa. 1,
915 A.2d 1122, 1140 (2007) (citation
omitted). An appellant cannot meet this burden by simply
persuading an appellate court that it may have reached a different
conclusion than that reached by the trial court; rather, to
overcome this heavy burden, the appellant must demonstrate that
the trial court actually abused its discretionary power. Id.
Commonwealth v. Gill,
206 A.3d 459, 466 (Pa. 2019). A determination that
a trial court abused its discretion in making an evidentiary ruling “may not be
made merely because an appellate court might have reached a different
conclusion, but requires a result of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so as to be clearly
erroneous.” Hoover,
107 A.3d at 729 (internal quotation marks omitted).
In ruling on the admissibility of A.O.’s testimony, the trial court
examined Pa.R.E. 404(b), and Appellant posits that A.O.’s testimony was not
permitted pursuant to the rule. We examine its applicability herein as
interpreted through case law.
Rule 404(b) of the Pennsylvania Rules of Evidence provides
that “evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show action in
conformity therewith.” Pa.R.E., Rule 404(b)(1), 42
Pa.Cons.Stat.Ann. However, “evidence of other crimes, wrongs,
or acts may be admitted for other purposes, such as proof of
motive, intent, preparation, plan, or knowledge....” Pa.R.E., Rule
404(b)(2), 42 Pa.Cons.Stat.Ann. Therefore, evidence of other
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crimes or acts may be admitted if such evidence proves “a
common scheme, plan or design embracing commission of two or
more crimes so related to each other that proof of one tends to
prove the others.” Leonard Packel and Anne Bowen Poulin,
Pennsylvania Evidence § 404–9(a) (2d Ed.1999). A common
scheme may be relevant to establish any element of a crime,
where intent may be shown through a pattern of similar acts. See
Commonwealth v. Strong, 825 A.2d 658, 665 (Pa.Super.2003),
appeal denied, 577 Pa. 702,
847 A.2d 59 (2004), cert. denied,
544 U.S. 927,
125 S.Ct. 1652, 161 L.Ed.2d (2005).
The degree of similarity is an important factor in
determining the admissibility of other crimes or bad acts under
this exception. See Commonwealth v. Luktisch, 451 Pa.
Super. 500,
680 A.2d 877, 879 (1996) (finding testimony of prior
sexual abuse upon other children in the same family relevant to
demonstrate a common scheme); Commonwealth v. Smith,
431 Pa. Super. 91,
635 A.2d 1086, 1089–1090 (1993) (holding
evidence of prior crimes was admissible to show a recurring
sequence of acts by defendant).
Furthermore, the importance of the intervening time period
“is inversely proportional to the similarity of the crimes in
question.” Commonwealth v. Miller, 541 Pa. 531, 548–550,
664 A.2d 1310, 1319 (1995).
Commonwealth v. Einhorn,
911 A.2d 960, 967 (Pa. Super. 2006).
Thus, the “degree of similarity” is a hallmark. The longer the time
between the crimes, the more similar the crimes need to be. Einhorn, 911
A.2d at 967. Here, the trial court pointed out that the attacks on A.O. and
J.C. “appear to overlap in time.4”
4 The exact dates of the abuse of A.O. are unclear. But she and
her mother testified that A.O. was four or five when she began
staying overnight with [Appellant]. It was around this time that
A.O. began to wet the bed, a typical indication of abuse. U.S.
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
ADMINISTRATION FOR CHILDREN AND FAMILIES, Parenting a
Child or Youth Who Has Been Sexually Abused: A Guide for Foster
and Adoptive Parents (December 2018)
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https://www.childwelfare.gov/pubPDFs/f_abused.pdf). A.O. was
born in . . . 2011 with the abuse likely occurring between
September and November 2016. J.C.’s original report to the
police occurred on March 30, 2017.
Trial Court Opinion, 3/22/19, at 4 n.4 (some internal citations omitted).
The trial court concluded that A.O.’s testimony was admissible as
evidence proving a common scheme, plan or design. Pa.R.E. 404(b)(2).5 In
support of its decision, the trial court stated as follows:
Despite the slight difference in victim age,2 the similarities
between the incidents of abuse merited inclusion under Pa.R.E.
404(b)(2). Both girls were young, away from protective family
members,3 in their bedrooms and vulnerable at the time
[Appellant] abused them. Indeed, these attacks appear to overlap
in time, further demonstrating a lack of accident. The probative
value of this evidence far outweighed the potential unfair
prejudice. The assault on [Appellant’s] biological daughter
demonstrated the natural course of events in [Appellant’s] life and
that of his family. Like in [Commonwealth v.] Judd, [897 A.2d
1224 (Pa. Super. 2006,)] the testimony here certainly prejudiced
[Appellant], but it did not do so unfairly.
2 The victim in this case, J.C. was between the ages of
9 and 12 while [Appellant] abused her. A.O. was five
when she told her mother about the abuse.
3 In both cases, the abuse occurred when the child’s
mother was not in the home. See J.C. Trial Testimony
at 75 (“Q: Where was your mom when these things
would happen? A: She would be at work or grocery
shopping.”).
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5 Pa.R.E. 404(b)(2) provides: “(2) Permitted Uses. This evidence may be
admissible for another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of
accident. In a criminal case[,] this evidence is admissible only if the probative
value of the evidence outweighs its potential for unfair prejudice.”
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Trial Court Opinion, 3/22/19, at 4–5 (some footnotes omitted).
Appellant also argues that A.O.’s testimony substantially prejudiced him
by suggesting “to the jury that [Appellant] had a propensity to commit crimes
of a specific class: sexual crimes. The claims did not have any probative value
to them, and even if they did, it was substantially outweighed by the prejudice
to [Appellant].” Appellant’s Brief at 20. The trial court addressed this claim
as follows:
[I]n order to mitigate a claim of undue prejudice, I provided
specific instructions to the jury regarding this evidence:
Now you did hear testimony which accused
[Appellant] of improper conduct for which he is not on
trial. I’m speaking of the testimony yesterday
afternoon by [A.O.]. This evidence came before you
for a limited purpose. That was for the purpose of
showing motive, intent, absent [sic] of mistake or
accident or common scheme. This evidence must not
be considered by you in any way other than for one or
more of these purposes. You must not regard this
evidence as showing that [Appellant] is a bad person
or of bad character or has criminal tendencies from
which you may be inclined to infer guilt in this case.
To do otherwise, again, would be a violation of your
oaths as jurors.
Trial Court Opinion, 3/22/18, at 5 (citing N.T., 6/27/18, at 306–307). The
trial court continued, “This instruction was also given just before A.O. testified,
mitigating the possibility of unfair prejudice. Based on the similarities in the
abuse and the nearness of the events in time, I determined that, with these
appropriate instructions, the probative value of A.O.’s testimony outweighed
the prejudice to [Appellant].” Trial Court Opinion, 3/22/19, at 5.
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When ruling upon the admissibility of evidence under the common-plan
exception, the trial court must examine the details and surrounding
circumstances of each criminal incident to assure that the evidence reveals
criminal conduct which is distinctive:
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.
Commonwealth v. Tyson, 119 A.3d 353, 359 (Pa. Super. 2015).
In both instances, the victims Appellant abused were young children in
a filial relationship with Appellant. Further, the instances of abuse toward
both children took place close in time with one another. See Commonwealth
v. Aikens, 990 A.2d 1181, 1185 (Pa. Super. 2010) (holding evidence of the
defendant’s prior sexual assault was admissible under common-scheme
exception despite nearly ten-year gap between periods of abuse, where
victims were of similar age and both were daughters of the defendant; the
defendant initiated contact with each victim during overnight visits in his
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apartment; and assaults occurred in bed at night); Commonwealth v.
Luktisch, 680 A.2d 877 (Pa. Super. 1996) (holding common-scheme
exception justified admission of testimony regarding the defendant’s previous
sexual assaults despite six-year lapse between periods of abuse, where three
victims were nearly same age, victims were either daughter or step-daughter6
of the defendant and lived with him when acts occurred; and pattern of
molestation was similar with respect to two victims).
In balancing the probative value of the evidence against its prejudicial
impact, this Court has opined that a trial court “is not required to sanitize the
trial to eliminate all unpleasant facts from the jury’s consideration.”
Commonwealth v. Golphin, 161 A.3d 1009, 1022 (Pa. Super. 2017), appeal
denied,
170 A.3d 1051 (Pa. 2017). We conclude the trial court did not abuse
its discretion in permitting A.O.’s testimony concerning her abuse by
Appellant.
Appellant’s final issue avers that the trial court abused its discretion in
precluding Appellant from cross-examining Grandmother, concerning how
J.C.’s disclosure of abuse by Appellant occurred. Appellant’s Brief at 23. We
repeat that we are precluded from disturbing the trial court’s rulings regarding
the admissibility of evidence absent an abuse of discretion because such
____________________________________________
6 We reject Appellant’s suggestion that the fact that A.O. was his biological
daughter and J.C. was merely a step-daughter negated any degree of
similarity. Appellant’s Brief at 18. Both of these relationships represented
Appellant as an authority figure to his victims.
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questions are left to the sound discretion of the trial court. Pukowsky, 147
A.3d at 1233.
On May 24, 2018, following the filing of the Commonwealth’s motion to
admit Grandmother’s testimony under the Tender Years Exception, 42 Pa.C.S.
§ 5985.1, the trial court entered the following order:
IT IS HEREBY ORDERED that the hearsay statements made by
J.C., . . . to [Grandmother] are admissible as substantive evidence
at trial insofar that the statements are limited to what J.C.
specifically disclosed to [Grandmother] regarding [Appellant’s]
actions during the alleged abuse. [Grandmother] may also testify
generally to the fact that J.C. made a disclosure on the date of
March 31, 2017.
Order, 5/24/18, at 1 (internal footnote omitted).
At the start of trial, defense counsel renewed his request to cross-
examine Grandmother about comments she made to J.C. at the time of the
sexual-abuse disclosure. N.T., 6/25/18, at 12. The trial court responded:
For the record, my ruling was limited in a way that stopped
all that testimony from [Grandmother] and [J.C.’s] . . . responses
to the questioning because I felt it was outside proper tender
years. So my ruling is limited to, there was an incident, the
alleged victim went to her room crying, [Appellant] was thrown
out of the house or left the house, [Grandmother] went upstairs,
and [Grandmother] then wants to know what is happening, at
which point [J.C.] reveals that there had been some improper
conduct, so then [Grandmother] calls the police, and then that is
the end of the line.
If you cross-examine her, you wish to cross-examine her on
the other stuff, it opens the door for other stuff to come in, and
[J.C.’s] responses. I don’t think that works for either side. So
your objection is noted on the record, but I’m still going to stick
by, that is going to be the limitation.
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Id. at 13–14. The “other stuff” to which the trial court referred was the
testimony concerning Appellant’s 2001 adjudication of rape of his sister,
among other things.
The trial court stated the following in response to this issue:
The testimony by [Grandmother] was limited to establishing
a timeline of events which culminated in [J.C.] reporting the abuse
to the police. (Tender Years Vol. IV at 13). This limitation served
to protect both [Grandmother] from unnecessary embarrassment
and to protect [Appellant] from the inadmissible content of the
conversation [J.C.] had with [G]randmother. (Tender Years II,
84, May 23, 2018). At the initial Tender Years hearing,
[Grandmother] described in-depth the conversation where J.C.
revealed the abuse. Much of the conversation was dedicated to
[Grandmother] describing the abuse she herself had suffered as a
child at the hands of an older male relative. (Tender Years Vol. II
at 66-69, May 23, 2018). [Grandmother’s] anger at her abuser
and at [Appellant] was very clear throughout her testimony. She
used words like “faggot,” “loser,” and “bum” to describe both men.
She testified that she “wanted to kill [Appellant]” and “really
wanted to hurt him.” (Tender Years Vol. II at 70-71). My order
limiting [Grandmother’s] testimony served several goals, one of
which was to protect [Appellant] by preventing the jury from
hearing this outpouring of hatred and anger. The testimony at
trial removed the content of [Grandmother’s] conversation with
[J.C.] and allowed [Grandmother] to testify simply to the fact that
J.C. revealed a claim of some type of abuse to begin the timeline
on the course of the police investigation.
Trial Court Opinion, 3/22/19, at 8–9.
Appellant implies that the court’s ruling prevented him from asking J.C.
whether Grandmother’s comments influenced J.C.’s disclosure. Appellant’s
Brief at 28–29. As the Commonwealth points out, defense counsel, while
remaining within the confines of the trial court’s ruling, could have questioned
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J.C. herself whether Grandmother’s revelations prompted J.C.’s admission
about Appellant’s abuse. Commonwealth’s Brief at 25–26.
We agree with the trial court’s explanation. Our review of the record
reinforces and supports our conclusion that the trial court did not abuse its
discretion in limiting Grandmother’s testimony. Accordingly, finding no abuse
of discretion, we are compelled to affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/20/2019
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