Com. v. Mull, S. ( 2021 )

J-A27017-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SETH MULL :
:
Appellant : No. 2392 EDA 2019
Appeal from the Judgment of Sentence Entered April 5, 2019
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0001762-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SETH MULL :
:
Appellant : No. 2393 EDA 2019
Appeal from the Judgment of Sentence Entered April 5, 2019
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0004318-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SETH MULL :
:
Appellant : No. 2394 EDA 2019
Appeal from the Judgment of Sentence Entered April 5, 2019
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0004319-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
J-A27017-20
:
v. :
:
:
SETH MULL :
:
Appellant : No. 2395 EDA 2019
Appeal from the Judgment of Sentence Entered April 5, 2019
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0004320-2017
BEFORE: STABILE, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY NICHOLS, J.: Filed: May 13, 2021
Appellant Seth Mull appeals from the judgments of sentence imposed
after his jury trial convictions for rape, human trafficking, and related
offenses. Appellant claims that the trial court erred in joining the cases for
trial and in admitting prior bad acts evidence. We affirm.
On October 29, 2017, at CP-48-CR-0004320-2017 (4320-2017),
Bethlehem Police filed a criminal complaint charging Appellant with the rape,
strangulation, terroristic threats, simple assault, unlawful restraint, false
imprisonment, possession of a controlled substance, possession of a small
amount of marijuana, possession of a drug paraphernalia, and human
trafficking.1 Those charges concerned complainant J.M.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 3121(a)(1), 2718(a)(1), 2706(a)(1), 2701(a)(1), 2902(a)(1),
2903; 35 P.S. § 780-113(a)(16), (31)(i), (32); and 18 Pa.C.S. § 3011(a),
respectively.
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On November 16, 2017, at docket CP-48-CR-0004319-2017 (4319-
2017), Colonial Regional Police filed a criminal complaint charging Appellant
with rape, aggravated indecent assault, and indecent assault.2 Those charges
concerned complainant A.S.
On November 27, 2017, Philadelphia Police filed a criminal complaint
charging Appellant with aggravated assault, rape, involuntary deviate sexual
intercourse, strangulation, sexual assault, unlawful restraint, simple assault,
recklessly endangering another person, false imprisonment, kidnapping,
human trafficking, and involuntary servitude concerning complainant B.B.3 On
May 17, 2018, the Philadelphia Court of Common Pleas transferred that case
to Northampton County where the case received the docket number CP-48-
CR-0001762-2018 (1762-2018).
On December 20, 2017, at CP-48-CR-0004318-2017 (4318-2017),
Bethlehem Police filed a criminal complaint charging Appellant with rape,
involuntary deviate sexual intercourse, sexual assault, indecent assault,
strangulation, terroristic threats, simple assault, unlawful restraint, human
____________________________________________
2 18 Pa.C.S. §§ 3121(a)(1), 3125(a)(2), and 3126(a)(2), respectively.
3 18 Pa.C.S. §§ 2702(a)(1), 3121(a)(1), 3123(a)(1), 2718(a)(1), 3124.1,
2902, 2701(a)(1), 2705, 2903(a), 2901(a)(3), 3011(a)(1), and 3012(b)(1)
respectively.
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trafficking, and involuntary servitude.4 Those charges concerned complainant
A.F.
The charges in these four cases involved offenses that occurred between
September 1, 2017, and October 27, 2017, at different hotels in the Lehigh
Valley and one hotel in Philadelphia. The complainants were all of the same
race and ranged in ages from nineteen to twenty-five years old.
The parties filed the following relevant pretrial motions. On December
21, 2017, the Commonwealth filed a motion to join the charges at 4318-2017,
4319-2017, and 4320-2017 for preliminary hearings and trial. On June 12,
2018, the Commonwealth again filed a motion to consolidate all four cases,
including 1762-2018. On July 23, 2018, Appellant filed a motion to sever the
cases arguing that joinder was improper under Pa.R.Crim.P. 582(A) and would
result in prejudice under Rule 583. On September 21, 2018, the
Commonwealth filed a motion in limine to admit other prior bad acts evidence,
to which Appellant filed a response in objection.
On November 26, 2018, the trial court granted joinder of the four cases
and denied Appellant’s motion to sever the cases.5 Further, the trial court
granted, in part, the Commonwealth’s motion to present prior bad acts
____________________________________________
4 18 Pa.C.S. §§ 3121(a)(2), 3123(a)(2), 3124.1, 3126(a)(1), (3), 2718(a)(1),
2706(a)(1), 2701(a)(1), 2902(a)(2), 3012(b)(1), (2), and 3011(a)(1),
respectively.
5 The trial court’s November 26, 2018 order stated that the court granted
joinder, noting that joinder had been previously granted. The court denied
severance without any explanation.
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evidence. Therein, the trial court found admissible testimony from C.F.
regarding Appellant’s prior uncharged acts.6
The cases proceeded to a consolidated jury trial at which all four
complainants and C.F. testified against Appellant. We summarize their
testimony as follows.
B.B.
At 1762-2018, B.B. testified that she knew Appellant and that they
previously “hung out” on two occasions. On September 1, 2017, she traveled
to Philadelphia with Appellant to attend the Made in America music festival.
She brought marijuana, cocaine, and methamphetamines with her. She
testified that Appellant asked her to bring the methamphetamines. She and
Appellant planned to stay together at a hotel, and they arrived in the early
morning hours of September 2, 2017. Once there, they consumed the cocaine
and marijuana, and had consensual sex.
Later that day, Appellant arranged to buy additional cocaine from a
female. B.B. left the hotel for a while to walk Appellant’s dog, when she
returned to the room, she heard Appellant and the female who brought the
drugs having sex. B.B. stated she became angry because she “was on a date
with him.” N.T. Trial Vol. 1, 12/4/18, at 97. She and Appellant then went to
the music festival but returned a short time later due to rain.
____________________________________________
6The trial court granted the Commonwealth’s motion in limine to admit several
prior bad acts witnesses. However, at trial, the Commonwealth only called
C.F. from among those witnesses.
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When B.B. and Appellant returned to the hotel room, Appellant
pressured her to try the methamphetamines, but she refused. Appellant
slapped her across the face and made her consume methamphetamines.
According to B.B., Appellant stated, “You’re not going to say no to me.” Id.
at 99. He later got on top of her, strangled her with both of his hands, took
off her clothes, and raped her. B.B. testified she was terrified of Appellant.
B.B. testified that later she followed Appellant’s instructions for her to
meet a man in the lobby to get more drugs and bring him back to the room.
Once back in the room, the man attempted to grope her. She ran out of the
room into the hallway and sent text messages to Appellant, including one
reading, “You can beat me all you want when I get back, but I’m not sleeping
with another man.” Id. at 103.
When B.B. returned to the hotel room, she stated, “[I]t all went really
bad.” Id. Specifically, B.B. testified that Appellant put duct tape over her
mouth and blindfolded her, and he told her to refer to him as “master” or “sir”
and that “no was not an acceptable answer for him.” Id. at 103-04. He forced
her to consume more drugs. He repeatedly choked her to the point of
unconsciousness and raped her, recording several instances on his phone. He
referred to a “sex slave contract.” Id. at 104. He threatened that she was
not going to see her mother or son again. Although he allowed her to use her
phone to call her family to say goodbye, he then took the phone and locked it
in a drawer, saying it was now his.
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B.B. testified that Appellant then invited the man who Appellant
previously introduced to B.B. back to the room. That person raped her while
Appellant held her down on the bed. Appellant and the other person forced
her to perform various acts of intercourse, and Appellant forced her to
consume more methamphetamines. The other person eventually left, but
Appellant continued to beat and rape her. She stated that Appellant was angry
because she did not do what she was told.
On the morning of September 4, 2017, Appellant’s physical and sexual
attacks continued. B.B. testified that she managed to get her phone from the
drawer and called 911 for an ambulance. Appellant recorded her 911 call on
his phone. After the call, Appellant threatened her family and told her to send
the ambulance away. B.B. testified that she did so she could return home.
The following day, September 5, 2017, Appellant and B.B. traveled back
from Philadelphia together. Appellant stated everything was B.B.’s fault and
that she deserved it. When she returned home, B.B. sent Appellant a text
message and thanked him for “great time” and apologized for things not going
as planned. Id. at 115. B.B. explained that she sent the message in fear that
Appellant would retaliate against her and her family, and that she did not
report the incident to police until she learned that Appellant was in custody
related to one of the other cases.
A.S.
At 4319-2017, A.S. testified that on September 26, 2017, she met
Appellant after asking a friend, D.K., for a ride home from another friend’s
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house. D.K. picked up A.S. but took her to a hotel. They went to a room
where Appellant was, and Appellant offered A.S. money for sex. She refused
and wanted to leave, but Appellant would not let D.K. to take her home. A.S.
also tried to leave to get a soda and cigarettes, but Appellant suggested that
D.K. either go or that all three go together. D.K. eventually got the soda and
went to a convenience store to get cigarettes while A.S. remained in the room.
When D.K. returned, Appellant prepared lines of cocaine and asked A.S.
to partake. A.S., who had substance abuse issues, initially refused, but
ingested a line after Appellant became angry. Appellant asked A.S. to arrange
for more drugs, which D.K. picked up. When D.K. returned, Appellant became
angry about the quality of the drugs, told A.S. he had “lawyers,” and that she
was “his property for the next 24 hours.” Id. at 52.
A.S. stated that Appellant took her and D.K.’s phones, ripped off her
clothes, and then pushed her on to the bed. Appellant held her down and
forced her and D.K. to perform oral sex on each other. Appellant raped A.S.
When she asked Appellant to stop and tried to yell out, Appellant struck her
or put a pillow over her face. Appellant put his hands around her neck.
A.S. stated that she felt sick, and she went to the bathroom while
Appellant and D.K. had sex. She remained in the bathroom for approximately
one hour, and then ran out of the room naked with only a hand towel. Hotel
staff called the police and during the investigation, Appellant showed a
detective videos of A.S. on his phone.
A.F.
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At 4318-2017, A.F. testified that on October 19, 2017, she received a
message from D.K. to hang out and asking if she wanted to make money.
D.K. arranged for a ride service to take A.F. to a hotel. When she arrived at
the room, D.K. was with Appellant. A.F. had not met Appellant before. D.K.
left the room to get drugs.
While they were alone, Appellant told A.F. that she was to do what he
told her, and that if she did not, he would beat or kill her, her family, and her
friends. When D.K. returned with the drugs, which included
methamphetamines, Appellant pressured her to take them. Appellant then
forced A.F. and D.K. to engage in oral sex with each other, and then Appellant
raped A.F. Appellant punched her, strangled her, and he told her to call him
“sir.” Id. at 56.
A.F. remained with Appellant for approximately four days at different
hotels. Although she would leave Appellant, at times going home, she
returned to where Appellant was staying. According to A.F., Appellant
threatened to kill her and her family if she did not come back to him. Appellant
told A.F. that he would arrange for other men to have sex with her. Two other
individuals raped A.F. after Appellant blindfolded her and tied her to the bed.
Appellant further had A.F. perform oral sex with another female. Appellant
continued to force A.F. to consume drugs, and ultimately made her bring a
group of her friends to a hotel room. Appellant arranged for A.F.’s friends to
leave by a ride service, A.F. was able to leave shortly thereafter, and did not
return.
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J.M.
At 4320-2017, J.M., who had met Appellant on Plenty of Fish, an internet
dating site, went to a hotel to meet Appellant in person on October 27, 2017.
Appellant convinced J.M. to take what he said was THC oil, but Appellant later
told her that it was methamphetamines. Appellant ripped off J.M.’s clothes
after she indicated that she did not want to have sex. He performed oral sex
on her as she said “no.” Id. at 40. Appellant then vaginally raped her, during
which he hit her on her face and choked her.
Over the next nearly twenty-four hours, Appellant raped J.M.
repeatedly. He took her cellphone required her to call him “master” or “sir”
and told her to say that she wanted him to rape her. Id. at 42. Appellant
took her phone. Appellant struck her on the mouth and choked her. She
ingested methamphetamines. J.M. testified that she pretended to enjoy the
abuse to minimize it.
Appellant instructed J.M. to arrange a meeting for sex with another
individual for $300.00. When Appellant gave J.M. her cell phone to make the
arrangements, J.M. texted her father that she was in trouble and had been
abused. J.M.’s father called the police, who went to the hotel.
During the investigation, Appellant denied having sex with J.M.
Meanwhile, a sexual assault examination of J.M. revealed several injuries,
including a swollen bottom lip, a burn and bite mark, and bruising, as well as
the presence of Appellant’s DNA.
C.F.
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C.F., who testified as a prior bad acts witness pursuant to the trial
court’s pretrial ruling, stated that she initially met Appellant on the Plenty of
Fish internet site in November 2013. C.F. went to Appellant’s apartment
where he pulled her by the hair and ripped off her clothes and required her to
remain naked. C.F. stated that Appellant told her that she was his property
and raped her. Appellant choked her to the point of unconsciousness.
Appellant told C.F. that another person was coming to his apartment.
He threatened to kill her if she tried to leave or tell anyone. The other person
arrived and they both raped her. Appellant also held her down and strangled
her. C.F. left shortly after the assault, but Appellant stated if she told anyone
what happened, he would kill her.
In addition to the testimony from the four complainants and C.F., the
Commonwealth presented evidence obtained from the investigations,
including a “slave contract sample” on Appellant’s phone, and searches for
pornography involving sex trafficking and slaves. Appellant’s phone also
contained videos of B.B., A.S., and A.F. The Commonwealth also presented
evidence that the individual whom Appellant forced J.M. to contact was
intending to have sex with her.
On December 7, 2018, the jury found Appellant guilty in each of the four
cases.7 On April 5, 2019, the trial court sentenced Appellant to an aggregate
____________________________________________
7The jury found Appellant not guilty of some of the offenses at 4318-2016
and 4319-2016.
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seventy-eight-and-a-half years to life imprisonment.8 Appellant timely filed
post-sentence motions.
On August 12, 2019, Appellant filed separate notices of appeal asserting
that the 120-days for deciding his post-sentence motion had expired and his
motions should be deemed denied by operation of law. The trial court
subsequently entered orders addressing and denying Appellant’s post-
sentence motions on August 14, 2019.9 Both Appellant and the trial court
have complied with Pa.R.A.P. 1925.
Appellant presents the following questions for review:
1. Did the [t]rial [c]ourt err in permitting the four informations to
be tried together despite the fact that they were never joined
pursuant to the Rules of Criminal Procedure?
2. Did the [t]rial [c]ourt err in joining the four informations and
in not severing them?
3. Did the [t]rial [c]ourt err in admitting C.F.’s testimony as Rule
404(b) evidence?
Appellant’s Brief at 5.
Rule 582(B)
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8 The trial court imposed the maximum term of life imprisonment for human
trafficking at 1762-2018 based on 42 Pa.C.S. § 9720.2.
9 We acknowledge that these appeals were technically premature because the
clerk of the court did not enter the orders denying Appellant’s post-sentence
motions by operation of law after 120 days. Additionally, the trial court’s order
denying Appellant’s post-sentence motion was entered beyond the 120-day
period, and the court did not timely find good cause for extending the
deadline. Nevertheless, under the circumstances of this case, we regard as
done that which should have been done and decline to quash these appeals.
See Commonwealth v. Khalil, 806 A.2d 415, 419-20 (Pa. Super. 2002).
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Appellant first challenges the procedures by which the Commonwealth
joined 4318-2017, 4319-2017, 4320-2017, which Appellant refers to as the
Northampton County cases. Appellant notes that the Commonwealth filed a
motion to join the Northampton County cases before the preliminary hearing
and another motion to join all four cases. Appellant, however, contends that
the Commonwealth did not properly comply with the notice and motion
provision under Rule 582(B). Appellant asserts that the Commonwealth’s
failure to follow Rule 582(B) prevented the trial court from fully considering
joinder of the Northampton cases and deprived him of the opportunity to
object to the joinder of those cases.
Generally, the decision 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. Wholaver, 989 A.2d 883, 898 (Pa. 2010). Rule 582
states in relevant part:
(B) Procedure
(1) Notice that offenses or defendants charged in separate
indictments or informations will be tried together shall be in
writing and filed with the clerk of courts. A copy of the notice shall
be served on the defendant at or before arraignment.
(2) When notice has not been given under paragraph (B)(1), any
party may move to consolidate for trial separate indictments or
informations, which motion must ordinarily be included in the
omnibus pretrial motion.
Pa.R.Crim.P. 582(B).
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Initially, a review of the record establishes that Appellant did not object
to the procedural aspects of the joinder of the Northampton County cases.
Despite being aware of the Commonwealth’s intention to join the cases, and
his opportunity to file a pre-trial motion to sever all four cases, Appellant did
not contest the procedural issues he now raises in this appeal. The failure to
raise such challenges precluded the trial court from considering the arguments
or fashioning a remedy if the trial court found procedural irregularities that
Appellant now raises on appeal. Accordingly, we conclude Appellant’s
challenge based on Rule 582(B) is waived.10 See Pa.R.A.P. 302(a).
Rule 582(A)
Next, Appellant challenges the substantive bases for joining all four
cases under Pa.R.Crim.P. 582 and 583. Appellant contends that the only
commonality among the cases were the presence of drugs and the allegations
of sexual assault. Appellant’s Brief at 30. He emphasizes numerous
differences among the four cases. Id. at 30-32. For example, Appellant notes
that A.S. did not testify to any allegations he trafficked or attempted to traffic
her for sex and that the Commonwealth did not charge him with human
____________________________________________
10 In any event, even if the Commonwealth did not follow the exact procedures
outlined in Rule 582(B), we agree that it provided ample notice of its intention
to join the three Northampton County cases for trial as well as the fourth case
at 1762-2018. As noted by the trial court, Appellant’s counsel was aware of
the joinder and made statements indicating that Appellant preferred to
address all cases against him together, but that he intended to explore the
option of challenging joinder. Moreover, for the reasons discussed herein, we
find no merit in Appellant’s suggestion that the procedures in this case
prevented the trial court from properly considering all factors relevant to
joinder under Rules 582(A) and 583.
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trafficking offenses in that case. Id. at 31. Appellant further contends that
he met the complainants in different ways. He notes that B.B. and J.M. had
prior contacts with him before the alleged assault, while A.S. and A.F. did not
meet him prior to the alleged assault. Id. Appellant also argues other
differences including (1) the lack of evidence of choking or strangulation of
A.S., (2) the absence of testimony from A.S. that Appellant threatened her or
her family, (3) the opportunities for B.B. and A.F. to leave Appellant, and (4)
B.B.’s testimony that Appellant did not force her to take drugs until after
Appellant raped her. Id. at 30-32.
Accordingly, Appellant contends there was no basis for finding the
evidence from each case admissible in the other cases because it did not
establish a “signature” plan, design, or scheme to identify him as having
committed the offenses. Id. at 33. Appellant also claims that issues such as
res gestae, intent, or absence of mistake as to consent were irrelevant
because each case formed its own story and because his defense focused on
general denials of committing the acts of abuse testified to by the
complainants. Id. at 34-35.
Appellant further asserts that the joinder resulted in prejudice because
it “served solely to bolster [the] credibility of each complainant” and allowed
“the jury to convict based on the number of offenses charged rather than
allowing the jury to evaluate each case on its merits and the credibility of each
complainant.” Id. at 38. The cumulative impact of this prejudice, Appellant
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contends, “risked that the jury would presume that, if [he] was accused of so
many ghastly crimes, he must surely be guilt of some of them.” Id. at 39.
As stated above, we review the trial court’s decision to join charges for
an abuse of discretion. See Wholaver, 989 A.2d at 898. Pursuant to Rule
582, “[o]ffenses charged in separate indictments or informations may be tried
together if . . . 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). Additionally, Rule
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.”
Pa.R.Crim.P. 583.
This Court utilizes the following three-part test for evaluating whether
joinder is appropriate in matters involving different acts or transactions:
(1) whether the evidence of each of the offenses would be
admissible in a separate trial for the other; (2) whether such
evidence is capable of separation by the jury so as to avoid danger
of confusion; and, if the answers to these inquiries are in the
affirmative, (3) whether the defendant will be unduly prejudiced
by the consolidation of offenses.
Commonwealth v. Brookins, 10 A.3d 1251, 1256 (Pa. Super. 2010)
(citations omitted).
The trial court’s “initial determination of admissibility is critical to the
court’s disposition of the severance motion; thus, the evidence must be
weighed in no less rigorous a fashion than if it were proffered for admission
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at trial.” Id. (citation omitted). Of relevance to this case, Pa.R.E. 404(b)
provides that “[e]vidence 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)(1). However,
“[t]his 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.” Pa.R.E. 404(b)(2).
Second, the trial court must determine whether joinder would pose a
danger of confusing the jury. Brookins, 10 A.3d at 1256. Our Supreme Court
has held that where the criminal offenses at issue are distinguishable in time,
place and parties involved, a jury is capable of separating the evidence. See
Commonwealth v. Collins, 703 A.2d 418, 423 (Pa. 1997).
Finally, the trial court must evaluate whether joinder would unfairly
prejudice the defendant. Brookins, 10 A.3d at 1256; see also Pa.R.Crim.P.
583. This Court has explained that
[t]he prejudice of which Rule 583 speaks is . . . that which would
occur if the evidence tended to convict the [defendant] only by
showing his propensity to commit crimes, or because the jury was
incapable of separating the evidence or could not avoid
cumulating the evidence. Additionally, the admission of relevant
evidence connecting a defendant to the crimes charged is a
natural consequence of a criminal trial, and it is not grounds for
severance by itself.
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Commonwealth v. Dozzo, 991 A.2d 898, 902 (Pa. Super. 2010) (citation
omitted).
Instantly, in its Rule 1925(a) opinion, the trial court concluded that
Appellant waived the issue or conceded to joinder, and then asserted that (1)
Appellant “was alleged and charged with engaging in the business of
trafficking young women[;]” (2) the complainants “were trafficked in a similar
manner and within the same time frame by Appellant.” Trial Ct. Op., 10/28/19
at 4-5. The trial court concluded, “We feel comfortable that the legal
justification for the join[d]er is well supported by this record.” Id. at 5.
Initially, we agree with Appellant that in one case, 4319-2017, the
Commonwealth did not charge Appellant with human trafficking or attempted
human trafficking, and the complainant, A.S., did not testify to any such an
attempt. Nevertheless, we conclude that the trial court’s rulings to join the
cases and deny severance were legally sufficient and supported by the record
and that Appellant has failed to establish reversible error.
The record establishes sufficient commonality in the four cases for the
trial court to find a common plan, design, or scheme such that the evidence
from each of the four cases would have been admissible in the other.
Specifically, the testimony of each complainant evidenced Appellant’s extreme
domineering over them and disregard of their wishes to either not consume
drugs or engage in sexual activity. Appellant used violence to restrain and
compel them when he became dissatisfied and during his sexual abuse of
them. This pattern of behavior occurred within a relatively short time between
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September and October 2017. All four complainants were of the same race
and similar ages. Taken as a whole, there was a sufficient basis to establish
a common plan, design, or scheme. Cf. Commonwealth v. Arrington, 86
A.3d 831, 844 (Pa. 2014) (discussing the admissibility of evidence of the
defendant’s “treatment of other girlfriends” that “demonstrated repeated
efforts to preserve intimate relationships through harassment, intimidation,
and physical violence” under Rule 404).
Moreover, contrary to Appellant’s argument, Appellant’s trial strategy of
generally denying the acts did not negate the issues of intent and absence of
mistake. The Commonwealth bears an unwavering burden of proof on all
elements, and the evidence in each of the four cases was relevant to the issues
of intent and absence of mistake in the other cases. See Commonwealth v.
Prince, 719 A.2d 1086, 1090 (Pa. Super. 1998) (noting that “where lack of
consent is an element of the crime, the defendant does not bear the burden
of proving consent: the Commonwealth bears the burden of proving lack
of consent, beyond a reasonable doubt” (emphasis in original)); accord
Commonwealth v. Rhodes, 510 A.2d 1217, 1225 (Pa. 1986) (discussing
consent).
Lastly, our review also reveals no basis to conclude that the joinder was
prejudicial. The events surrounding each of the complainants were sufficiently
distinct such that the possibility of confusion was minimal. See Collins, 703
A.2d at 423. We also find no merit in Appellant’s argument that the sole
purpose of the joinder was to establish his propensity to commit crimes or
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bolster the credibility of the multiple complainants rather than for the proper
purposes discussed herein.
The factual differences in the cases highlighted by Appellant do not
evince an abuse of discretion as to the core finding that the evidence from all
four victims established a common plan, design, or scheme, intent, and
absence of mistake and that prejudice would not result. Accordingly, we
discern no abuse of discretion in the trial court’s ruling to join the four cases
and deny Appellant’s motion to sever. See Wholaver, 989 A.2d at 898.
Rule 404 Evidence
In his final challenge, Appellant contends that the trial court erred in
permitting the Commonwealth to present testimony from C.F. pursuant to
Rule 404(b). Appellant emphasizes that C.F. was familiar with Appellant
through an internet dating site and that unlike the four complainants, C.F. met
Appellant at his apartment and not a hotel room. Appellant’s Brief at 39.
Appellant further notes that C.F. did not testify to the presence or ingestion
of drugs. Id. Lastly, Appellant notes that he did not record C.F. like he did
with A.S. and B.B. Id. Appellant concludes that C.F.’s testimony was so
dissimilar from the scenarios described by the four complainants that the trial
court abused its discretion in finding it relevant under Rule 404, not
prejudicial. Id. at 39. Appellant continues, “To the contrary, C.F.’s testimony
served only to pile on already cumulative evidence depicting [him] as a person
who sexually degrades and violates women.” Id. at 40-41.
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Our standard of review of a trial court’s evidentiary ruling is well-settled.
“The admission of evidence is committed to the sound discretion of the trial
court, and a trial court’s ruling regarding the admission of evidence will not be
disturbed on appeal unless that ruling reflects manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support to be clearly
erroneous.” Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pa. Super.
2010) (citations and quotation marks omitted).
On this record, we conclude that there were substantial similarities
between C.F.’s testimony to permit the admission of the testimony pursuant
to Rule 404(b) in that its probative value outweighed it prejudicial effect. We
acknowledge the trial court’s references to the use of social media to locate
and groom the complainant was present only in the case of J.M., and that the
alleged use of drugs or alcohol to overcome resistance was not present in
C.F.’s testimony. Nevertheless, we cannot conclude that the C.F.’s testimony
was admitted for the improper purpose of propensity evidence, where, as
discussed above, the complainant’s lack of consent, lack of accident,
Appellant’s motive and lack of mistake were at issue in the four cases against
him. The record shows that the trial court weighed the probative value of
C.F.’s testimony against its prejudicial effect, see Trial Ct. Op. at 6-7, and we
discern no basis on which to conclude to that Appellant demonstrated a
reversible abuse of discretion. See Minich, 4 A.3d at 1068. Accordingly, no
relief is due.
Conclusion
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For these reasons, we conclude that Appellant failed to preserve his
procedural challenge to the joinder of 4318-2017, 4319-2017, and 4320-
2017, that Appellant’s substantive challenge to the joinder of all four cases
pursuant to Rules 582(A) and 583 does not warrant relief, and that Appellant’s
claim that the trial court erred in admitting C.F.’s prior bad acts testimony
lacks merit. Because Appellant has failed to establish any abuse of discretion
in this appeal, we affirm the judgments of sentence.
Judgments of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/13/21
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