Opinion
J-S52006-17 No. 2032 MDA 2016
10-18-2017
COMMONWEALTH OF PENNSYLVANIA v. D.D., Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgments of Sentence December 9, 2016 in the Court of Common Pleas of York County, Criminal Division, No(s): CP-67-CR-0000085-2015; CP-67-CR-0000086-2015 BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
D.D. (hereinafter "Appellant") appeals from the judgments of sentence imposed after he was convicted of three counts of indecent assault (without consent); two counts each of incest, statutory sexual assault, and corruption of minors; and one count each of rape of a child and indecent assault of a person less than 13 years of age. We affirm.
The trial court summarized the relevant factual history, from evidence adduced at the jury trial in the case docketed at 86-2015 (hereinafter "the B.D. case"), as follows:
B.D.[, Appellant's biological daughter,] testified that when she was 11 years[] old and in her bed at night, [Appellant] ... came into her bedroom, stared at her, lay on top of her and had vaginal intercourse with her[,] and then told her not to say anything. Then, when B.D. was 12 or 13 years[] old, [Appellant]
went to her room at night and again had vaginal intercourse with her and told her not to say anything.Trial Court Opinion (docket no. 86-2015), 3/13/17, at 3-4 (footnote citations to record omitted).
Among the witnesses [at the trial in the B.D. case] were M.E. and A.S. During the trial, M.E., who is [Appellant's] step-daughter, testified that when she was 13 years[] old, she was lying in her parents' bed when [Appellant] touched her and had vaginal intercourse with her, which she testified happened more than once. According to M.E., after the intercourse, [Appellant] told her not to tell her mother.
During the [] trial involving B.D., there was a stipulation that on November 29, 2012[, Appellant had] pled guilty to statutory sexual assault, aggravated indecent assault, indecent assault and corruption of minors in a case related to M.E.
A.S., who is [Appellant's minor] niece, testified that while she was living with him, and sleeping in her bed, she woke up to the [Appellant] having vaginal intercourse with her, and [Appellant] told her to not tell her mother. At the time, A.S. was six or seven years old.
In February 2015, the Commonwealth filed various charges against Appellant for the sexual assaults that he perpetrated against B.D. and A.S., which were listed at two separate docket numbers. The B.D. case was initially consolidated with the case concerning Appellant's crimes against A.S., docketed at 85-2015 (hereinafter "the A.S. case").
In May 2015, Appellant filed a Motion seeking severance of the A.S. case and the B.D. case for the purposes of trial (hereinafter "the Motion to sever"). Following a hearing in June 2015 (hereinafter "the severance hearing"), the Honorable Thomas H. Kelley ("Judge Kelley") entered an Order granting the Motion to sever. Judge Kelley subsequently retired, and the cases were transferred to the Honorable Harry Ness ("Judge Ness").
Pennsylvania Rule of Criminal Procedure 582 provides that offenses charged in separate informations can be tried jointly where "(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) (paragraph break omitted). Relatedly, Pa.R.Crim.P. 583 provides that "[t]he court may 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." Id.
Judge Kelley's Order granted severance without explanation. However, on appeal, Appellant emphasizes Judge Kelley's following remark, made on the record following the severance hearing:
[M]y inclination, I reviewed it again, is that I am going to grant the [M]otion to se[]ver. Under the circumstance[s], I want [the A.S. case and the B.D. case] tried separately. So, I'll look at it a little bit further, but based upon the offer of the Commonwealth, I think that the two situations are not sufficiently similar to go forward jointly. That's my inclination. I'll issue an Order after I complete[] my full analysis of the cases.N.T., 6/15/15, at 2 (emphasis added; paragraph breaks omitted).
On January 28, 2016, the Commonwealth filed a Motion for Introduction of Prior Bad Acts Pursuant to Pennsylvania Rule of Evidence 404(b) (hereinafter the "Rule 404(b) Motion"). Therein, the Commonwealth sought to introduce, at the separate trials on the B.D. case and the A.S. case, testimony from A.S., B.D. and M.E., concerning the crimes that Appellant perpetrated against all three girls (hereinafter referred to as "the proposed 404(b) evidence"). The Commonwealth asserted that such evidence was relevant and admissible under Rule 404(b) to show a common scheme or design by Appellant, and that its probative value outweighed its potential for unfair prejudice.
Rule 404(b) provides, in relevant part, as follows:
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that[,] on a particular occasion[,] the person acted in accordance with the character.Pa.R.E. 404(b); see also Commonwealth v. Dillon , 925 A.2d 131, 141 (Pa. 2007) (stating that "[e]vidence will not be prohibited merely because it is harmful to the defendant. This Court has stated that it 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." (citation and quotation marks omitted)).
(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.
Appellant filed an "Answer" in response to the Rule 404(b) Motion, challenging the admissibility of the proposed 404(b) evidence. He emphasized therein that Judge Kelley had previously severed the B.D. case and the A.S. case, finding that the cases were not sufficiently similar to be tried jointly. According to Appellant, the Commonwealth's Rule 404(b) Motion improperly sought to circumvent Judge Kelley's prior ruling, in violation of the "coordinate jurisdiction rule." Appellant further urged that the B.D. case and the A.S. case were too factually different to establish a common scheme or design under Rule 404(b).
"Generally, the coordinate jurisdiction rule commands that upon transfer of a matter between trial judges of coordinate jurisdiction, a transferee trial judge may not alter resolution of a legal question previously decided by a transferor trial judge." Zane v. Friends Hosp., 836 A.2d 25, 29 (Pa. 2003); see also Commonwealth v. Starr , 664 A.2d 1326, 1332 (Pa. 1995) (stating that "only in exceptional circumstances[,] such as where there has been an intervening change in the controlling law, a substantial change in the facts or evidence giving rise to the dispute in the matter, or where the prior holding was clearly erroneous and would create a manifest injustice if followed," may the coordinate jurisdiction rule be disregarded).
Subsequently, on July 12, 2016, the Commonwealth filed a Motion in Limine (hereinafter the "Motion in Limine") wherein it sought, inter alia, to introduce certain testimony from M.E., at the trial in the B.D. case, in order to explain to the jury why B.D. had delayed in reporting the sexual assaults to the authorities (hereinafter "the delayed reporting matter").
B.D. reported the sexual assaults to the authorities in 2014, several years after they had occurred. M.E. reported Appellant's sexual assaults against her in 2012.
On July 15, 2016, the trial court conducted a hearing on the Rule 404(b) Motion and Motion in Limine (hereinafter "the Rule 404(b) hearing"), wherein B.D., A.S., and M.E. testified. At the conclusion of the Rule 404(b) hearing, the trial court stated, inter alia, that it did not believe that Judge Kelley's prior severance of the B.D. case and the A.S. case was dispositive of whether the Commonwealth could introduce, at the separate trials, the proposed 404(b) evidence. See N.T., 7/15/16, at 43, 46 (stating that the court "agree[s] that the fact that you sever them doesn't mean they can never be blended for the purposes of [Rule] 404."). Accordingly, on the same date, the trial court entered separate Orders granting the Rule 404(b) Motion and the Motion in Limine (insofar as it related to the B.D. case).
These Orders, though entered on the trial court's docket, are not contained in the electronic certified record submitted to this Court.
The matter proceeded to a jury trial on the B.D. case on July 18, 2016, wherein B.D., A.S., and M.E. all testified concerning the crimes that Appellant had perpetrated against them. Relevant to the instant appeal, prior to sending the jury out for deliberations, Judge Ness issued the following instructions concerning the delayed reporting matter and the admission of the proposed 404(b) evidence:
There have been some indications here that [B.D.] did not make a prompt complaint. Before you find [Appellant] guilty of the crime[s] charged in this case, you must be convinced beyond a reasonable doubt that the act, in fact, did occur. The evidence of [B.D.'s] delay in making a complaint does not necessarily make her testimony unreliable[,] but may remove from it the assurance of reliability accompanying the prompt complaint or outcry that a victim of a crime such as this would ordinarily be expected to make. Therefore, the delay in making this complaint should be considered in evaluating her testimony and deciding whether the act occurred at all. You may[,] as well[,] consider [B.D.'s] age and the fact that [Appellant] is her father, the alleged perpetrator of this offense, as well as her explanation for the delay in whether or not you decide delay has any impact whatsoever on whether or not this act may or may not have occurred.
You have heard evidence tending to prove that [Appellant] was guilty of an offense for which he is not on trial. In this case, you have heard testimony to the effect that [Appellant] pled guilty to sexually assaulting his stepdaughter, [M.E.], and allegedly sexually assaulted his niece, [A.S.] This evidence is before you for a limited purpose, and that is for the purpose of showing that the likelihood of [Appellant] committing this offense is supported, that is, [B.D.'s] credibility is enhanced by the other offenses[, i.e., against A.S. and M.E.,] in that they would constitute[,] in your eyes, if you believed the facts, a common plan, scheme or design, a motive, [or] a signature[,] in [] that if you observed the other two offenses, they were similar to the extent that[,] if you believe [B.D.,] and you believe [A.S. and M.E.], this could support and corroborate the statements of [B.D.] regarding these allegations. It must not be considered by you in any way other than for the purpose that I just stated. You may not regard this evidence as showing that [Appellant] is a person of bad character or criminal tendencies from which you might be inclined to infer guilt.N.T., 7/18-19/16, at 255-57 (some paragraph breaks omitted). On July 19, 2016, the jury returned verdicts of guilty on all of the charges against Appellant in the B.D. case. On the same date, Appellant entered a nolo contendere plea to one count of indecent assault concerning the A.S. case.
The trial court deferred sentencing so that a member of the Sexual Offender Assessment Board ("SOAB") could assess Appellant, and issue a recommendation as to whether he met the criteria of a sexually violent predator ("SVP"). After the completion of the SOAB report, the trial court scheduled sentencing on the B.D. case and the A.S. case to occur simultaneously. At the SVP/sentencing hearing on December 9, 2016, the trial court determined that Appellant met the requirements for SVP classification. On the B.D. case, the trial court sentenced Appellant to an aggregate term of 25-50 years in prison. On the A.S. case, the trial court imposed a concurrent term of two years of probation.
On December 13, 2016, Appellant timely filed a Notice of Appeal. In response, the trial court ordered Appellant to file concise statements of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant timely filed separate Concise Statements for the B.D. case and the A.S. case. The trial court thereafter issued Pa.R.A.P. 1925(a) Opinions for the respective cases.
Appellant listed on his Notice of Appeal the docket numbers for both the B.D. case and the A.S. case (the respective judgments of sentence were entered on the same date).
Only the claims that Appellant preserved in his Concise Statement pertaining to the B.D. case are relevant to the instant appeal. See Brief for Appellant at 4 n.1 (wherein Appellant's counsel states that Appellant is proceeding only on the issues preserved in the Concise Statement filed in the B.D. case, and not the A.S. case).
Appellant now presents the following issue for our review:
Whether the trial court erred in admitting prejudicial evidence of other complainants' allegations of sexual abuse: (A) in violation of the coordinate jurisdiction rule in light of [Judge Kelley's] prior severance ruling; and in violation of Pennsylvania Rule of Evidence 404(b) because: (B) the allegations were not so similar as to show a common scheme or design; and (C) one complainant's report of abuse was not probative of another complainant's delay in reporting abuse[?]Brief for Appellant at 4.
Our standard of review concerning a challenge to the admissibility of evidence is as follows:
The admissibility of evidence is a matter for the discretion of the trial court and a ruling thereon will be reversed on appeal only upon a showing that the trial court committed an abuse of discretion. An abuse of discretion may not be found 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.Commonwealth v. Johnson , 42 A.3d 1017, 1027 (Pa. 2012) (citations and quotation marks omitted).
As a claim alleging a violation of the coordinate jurisdiction rule presents a question of law, our standard of review is de novo and our scope of review is plenary. Zane , 836 A.2d at 30 n.8.
We will address Appellant's first two sub-issues together, as they are related and both challenge the trial court's admission of the proposed 404(b) evidence in the B.D. case. See Brief for Appellant at 23-42. Appellant first argues that Judge Ness's
[a]llowing the allegations of A.S. in the B.D. case violated the coordinate jurisdiction rule due to Judge Kelley's [prior] severance of the two cases. The severance -- including Judge Kelley's statement that the cases were "not sufficiently similar to go forward jointly[," see FN 2, supra ] -- operated as a finding that the allegations were not so similar as to comprise a common scheme or design. Judge Ness was bound by that finding upon taking over the [B.D.] case, and admitting A.S.'[s] allegations was therefore erroneous and prejudicial.Brief for Appellant at 23. Further, Appellant asserts that none of the exceptions to the coordinate jurisdiction rule apply to the instant case. See id. at 24-28; see also id. at 27 (asserting that "the [M]otions at issue[, i.e., the Motion to sever and Rule 404(b) Motion,] did not 'differ in kind' in such a way as to permit relaxation of the coordinate jurisdiction rule[,]" and asserting that these Motions "implicate the same legal issue, concern the exact same facts, and do not call for different standards[.]").
Appellant next urges that the trial court erred in ruling that the proposed 404(b) evidence was admissible at the trial in the B.D. case to show a common scheme or design by Appellant, where "A.S.'[s] and M.E.'s allegations were not sufficiently similar to B.D.'s as to warrant admission on this basis." Id. at 34-35. Appellant contends that the similarities between his sexual assaults of all three victims were insignificant because such details are common to many sexual assault crimes. Id. at 36-38; see also id. at 37 (asserting that although "[e]ach [victim] had a familial relation to [Appellant], [had] alleged penis-to-vagina penetration occurring in bed, and claimed [that Appellant] told them not to say anything afterward[,]" such facts are "extremely common" in many sexual assault prosecutions). According to Appellant, there were also "key" dissimilarities between the crimes, including (1) the varying ages of the victims at the time of the assaults; (2) the number of occasions that Appellant had assaulted each victim; (3) the respective rooms in Appellant's home in which the assaults occurred; and (4) "though B.D. and A.S. alleged only vaginal penetration, M.E. said [Appellant] also rubbed her breasts." Id. at 39-40.
Appellant further contends that "[t]he erroneous admission of the [proposed 404(b)] evidence was prejudicial in light of the weakness of the Commonwealth's case. Viewed without the assistance of the offending evidence, B.D.'s testimony was thoroughly unconvincing." Id. at 28; see also id. at 28-31 (explaining why B.D.'s testimony was independently "unconvincing"). Appellant avers that, "taken together, the testimony of A.S. and M.E. covers 33 pages [of the trial] transcript. ... These allegations, for which [Appellant] was not on trial, therefore represented enormous and prejudicial portions of a short trial that, from opening statement through closing argument, only lasted 171 pages." Id. at 40-41. Finally, Appellant urges that Judge Ness's above-mentioned cautionary instruction as to the admission of the proposed 404(b) evidence was insufficient to overcome the unduly prejudicial nature of this evidence. Id. at 32-34, 41.
In its Opinion, the trial court thoroughly discussed these claims, set forth the relevant law, and determined that
(A) the court did not err in admitting the proposed 404(b) evidence, where (i) its probative value outweighed its potential prejudicial impact, and (ii) the sufficiently similar nature of Appellant's assaults of the three victims demonstrated a common scheme or design; andSee Trial Court Opinion (docket no. 86-2015), 3/13/17, at 5-12. The trial court's sound analysis is supported by the record and the law, and we agree with its determination. Accordingly, we affirm on this basis as to Appellant's first two sub-issues, see id., with the following addendum.
(B) there was no violation of the coordinate jurisdiction rule, where (i) Judge Kelley had never explicitly ruled that evidence from the A.S. case and the B.D. case was inadmissible in the trial of either case for purposes of Rule 404(b), and (ii) the jury in the B.D. case was not asked to decide whether Appellant was guilty of the crimes against A.S.
As mentioned above, Judge Ness issued a comprehensive jury instruction concerning the admission of the proposed 404(b) evidence, and clarified the limited purpose for which the jury could consider it. See N.T., 7/18-19/16, at 256-57. It is well established that a jury is presumed to follow a trial court's instructions. Commonwealth v. Williams , 936 A.2d 12, 21, 33 (Pa. 2007). Moreover, "when weighing the potential for prejudice [concerning Rule 404(b) evidence], a trial court may consider how a cautionary jury instruction might ameliorate the prejudicial effect of the proffered evidence." Dillon , 925 A.2d at 141 (citing Pa.R.E. 404(b) cmt.)). Thus, where a cautionary instruction is provided to the jury, the likelihood of undue prejudice is substantially minimized. See Commonwealth v. Hairston , 84 A.3d 657, 666-67 (Pa. 2014) (holding that an extraneous offense of arson was admissible under Rule 404(b) as res gestae evidence in defendant's prosecution for murder, and the trial court's limiting instruction on how the arson evidence should be considered minimized the likelihood that such evidence would inflame the jury or cause it to convict defendant on an improper basis); see also Commonwealth v. Jones , 668 A.2d 491, 504 (Pa. 1995) (stating that an appellant's failure to object to a cautionary instruction indicates his satisfaction with the instruction).
Moreover, we reject Appellant's challenge that B.D.'s testimony was independently unconvincing to support the convictions. By statute, the uncorroborated testimony of a sexual assault victim, if believed, alone is sufficient to support a sexual assault conviction. 18 Pa.C.S.A. § 3106; see also Commonwealth v. Charlton , 902 A.2d 554, 562 (Pa. Super. 2006) (noting that, in a prosecution for, inter alia, incest and corruption of minors, this Court has long held that a victim's uncorroborated testimony is sufficient to convict).
In his final sub-issue, Appellant contends that the trial court rendered a legally improper ruling concerning the delayed reporting matter (i.e., to the extent that the trial court admitted M.E.'s testimony on the separate basis that it tended to explain B.D.'s delay in reporting the sexual assaults). See Brief for Appellant at 42-45. According to Appellant, "this evidence was not at all probative of the reasons for B.D.'s delay." Id. at 42. Specifically, Appellant asserts that
[a]t the Rule 404(b) hearing ... [B.D.] did say she delayed in reporting the abuse for several years because she "was in shock when [she] found out that it had happened to [M.E.], and [B.D.] didn't want to believe it." (N.T., 7/15/16, at 9). But this makes little sense, and the remainder of B.D.'s testimony undermined the notion that her delay had anything to do with M.E.'s allegations.Brief for Appellant at 43.
The trial court addressed this claim in its Opinion, applied a controlling case, see Dillon , supra , and determined that the court did not err in admitting the evidence in question. See Trial Court Opinion (docket no. 86-2015), 3/13/17, at 12-14. We agree with the trial court's analysis and determination, and therefore affirm on this basis as to Appellant's final sub-issue. See id .
Moreover, Judge Ness also issued a cautionary jury instruction concerning the delayed reporting matter. See N.T., 7/18-19/16, at 256, supra. This instruction tended to minimize any undue prejudice that M.E.'s testimony might have had upon Appellant. See Hairston , supra; see also Williams , supra (stating that a jury is presumed to follow the trial court's instructions). --------
Based on the foregoing, we discern no abuse of discretion or error of law by the trial court in its rulings on the admissibility of evidence, and conclude that Appellant was afforded a fair trial.
Judgments of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/18/2017