Commonwealth v. Lynn ( 2018 )

J-A08013-18
2018 Pa. Super. 190
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
WILLIAM J. LYNN : No. 1298 EDA 2017
Appeal from the Order April 19, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003530-2011
BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER*, J.
OPINION BY PANELLA, J. FILED JUNE 28, 2018
Rule 404 of the Pennsylvania Rules of Evidence prohibits the use of “a
crime, wrong, or other act … 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). After finding the admission of twenty-one
instances of “other-acts” evidence unduly prejudiced the jury trial of Appellee,
William J. Lynn, a panel of this Court granted Lynn a new trial.
Prior to retrial, the Commonwealth attempted to secure the introduction
of nine of these instances of other-acts evidence, for such evidence may be
admissible when relevant to another purpose, such as “proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A08013-18
mistake, or lack of accident.” Pa.R.E. 404(b)(2). The trial court limited the
Commonwealth to just three.
The Commonwealth appeals,1 alleging the introduction of additional
other-acts evidence is necessary to prove its case. After concluding that the
trial court’s decision to limit the introduction of other-acts evidence was within
its discretionary powers, we affirm.
Because our Supreme Court has provided a detailed description of the
facts underlying this matter in its prior opinion, Commonwealth v. Lynn,
114 A.3d 796, 798-808 (Pa. 2015) (“Lynn II”), we need not recite the
entirety of this case’s history here. See also Commonwealth v. Lynn, 83
A.3d 434, 437-445 (Pa. Super. 2013) (“Lynn I”), rev’d Lynn II (providing
summary of facts and procedural history).
Relevant to the current appeal, Lynn was appointed Associate Vicar in
the Office of the Vicar for the Administration in the Archdiocese of Philadelphia
in January 1991. As part of his duties as Associate Vicar, Lynn assisted
Monsignor James Malloy and served as the Secretary for Clergy for the
Archdiocese of Philadelphia from 1992 until 2004. As part of his duties as
secretary, Lynn was responsible for receiving and investigating allegations of
____________________________________________
1 The Commonwealth has certified that the trial court’s order substantially
handicaps the prosecution, and that the appeal is not intended for delay
purposes. Thus, we may review it. See Pa.R.A.P. 311(d); see also
Commonwealth v. Gordon, 673 A.2d 866, 868 (Pa. 1996) (holding that the
denial of a motion in limine seeking to admit evidence falls within the rule that
the Commonwealth may appeal pretrial orders which terminate or
substantially handicap the prosecution).
-2-
J-A08013-18
sexual abuse by priests within the Archdiocese, as well as suggesting
placements for, and supervising, priests previously accused of abuse.
In 2011, following a grand jury investigation into claims of sexual abuse
by priests and concealment of this abuse by the Archdiocese, Lynn was
arrested and charged with two counts of endangering the welfare of children
(“EWOC”), 18 Pa.C.S.A. § 4304, and two counts of conspiracy to commit
EWOC, 18 Pa.C.S.A. § 903. Lynn’s charges arose from allegations that he, in
his capacity as Secretary for Clergy, negligently supervised two priests,
Reverend Edward V. Avery and Reverend James Brennan. 2 Due to previous
complaints, Lynn knew that both Avery and Brennan had been accused of
sexually abusing juvenile parishioners. Despite this knowledge, in 1993, Lynn
recommended Avery live in the rectory at nearby St. Jerome’s Church—a
church with a grade school attached. Several years after Avery was placed at
St. Jerome’s rectory, D.G., a student at St. Jerome’s grade school, alleged he
had been sexually abused by Avery.3
____________________________________________
2 The Commonwealth charged one count each of EWOC and conspiracy to
commit EWOC in relation to Lynn’s supervision of Avery and Brennan,
respectively.
3 In his brief, counsel for Lynn do not refer to D.G. by his initials, but rather
by his full name. D.G. was a minor at the time of the alleged sexual abuse.
The use of his full name is prohibited by statute. See 42 Pa.C.S.A. § 5988(a)
Release of name prohibited. We therefore order counsel to file within seven
days of this decision a substituted brief redacting D.G.’s full name. Our Deputy
Prothonotary has already sealed Lynn’s filed brief.
-3-
J-A08013-18
Lynn proceeded to trial on March 26, 2012.4 As part of its case-in-chief,
the Commonwealth introduced other-acts evidence of the Archdiocese’s
handling of abuse allegations raised against twenty-one other priests.5 This
evidence consumed twenty-five of the thirty-two days the Commonwealth
devoted to its case-in-chief. After two months of testimony, the jury convicted
Lynn of one count of EWOC, relating to his supervision of Avery.6 On July 24,
2012, the trial court sentenced Lynn to a term of three to six years’
imprisonment.
____________________________________________
4 Initially, Lynn was scheduled to be tried along with co-defendants Avery and
Brennan. However, prior to the commencement of trial, Avery pleaded guilty
to one count of involuntary deviate sexual intercourse, 18 Pa.C.S.A. § 3123,
and one count of conspiracy to commit EWOC. Brennan remained Lynn’s co-
defendant until the conclusion of the trial.
5 In our review of the record, as well as previous opinions and memoranda
written in his case, we note that the exact number of priests accused of sexual
abuse and admitted as other-acts evidence varies between twenty and
twenty-one. Compare Lynn I, 83 A.3d at 446 (referencing twenty-one other
priests), and Commonwealth v. Lynn, No. 2171 EDA 2012, at 13, 15, 2015
WL 9320082, at *6 (Pa. Super., filed 12/22/15) (unpublished memorandum)
(“Lynn III”) (discussing allegations leveled against twenty-one other
priests), with Lynn II, 114 A.3d at 809 (stating trial court permitted
Commonwealth to introduce evidence pertaining to twenty other priests).
However, the trial court’s initial order permitting the introduction of other-acts
evidence clearly reveals it permitted the Commonwealth to introduce evidence
relating to twenty-one other priests against Lynn. See Trial Court Order,
2/6/12. As such, we will utilize this number in our opinion.
6Following the conclusion of the Commonwealth’s case, the trial court granted
Lynn’s motion for judgment of acquittal for the conspiracy count related to his
supervision of Brennan. Thereafter, in reaching its verdict, the jury acquitted
Lynn of the conspiracy count related to his supervision of Avery and the EWOC
count related to his supervision of Brennan. The jury failed to reach a verdict
on any of the charges leveled against Brennan.
-4-
J-A08013-18
Following a series of appeals, a panel of this Court vacated the judgment
of sentence and granted Lynn a new trial upon concluding the trial court
abused its discretion by admitting a “high volume of unfairly prejudicial other-
acts evidence.” Lynn III, No. 2171 EDA 2012, at 1, 2015 WL 9320082, at
*1. Specifically, the Court found that
the probative value of the individual portions that made up the
large quantity of other-acts evidence in this case differed greatly.
A limited portion of that evidence was substantially relevant to, or
probative of, permitted uses under Rule 404(b)(2), but far more
was only marginally relevant for such purposes. The potential for
this evidence to unfairly prejudice [Lynn] was high, both because
it involved the sexually abusive acts of numerous priests
committed against children over several decades, and because of
the high volume of the evidence admitted. Therefore, we conclude
that the probative value of that evidence, in toto, did not outweigh
its potential for unfair prejudice….
Id., at 42-43, 2015 WL 9320082, at *20.
Prior to retrial, Lynn filed an omnibus pretrial motion seeking, in part,
to exclude all of the other-acts evidence the Commonwealth utilized in the
first trial. Lynn maintained that evidence of sexual abuse by Archdiocesan
priests, other than Avery, was neither probative nor relevant to proving Lynn’s
EWOC charge. As Lynn believed the evidence was irrelevant, he claimed that
admission of this evidence would, again, unduly prejudice him if presented at
trial.
-5-
J-A08013-18
In response, the Commonwealth filed a motion in limine seeking the
admission of nine7 of the twenty-one instances of other-acts evidence
introduced at Lynn’s first trial. Specifically, the Commonwealth sought the
admission of evidence related to accusations levied against nine priests within
the Archdiocese, claiming the admission of all nine of the instances was
necessary to demonstrate the general scheme Lynn created in which he
concealed evidence of sexually abusive priests to protect the Archdiocese.
Following a hearing on the matter, the trial court determined that, while
the evidence of sexual abuse by these priests was relevant under Rule 404(b),
the prejudicial effect of the admission of all nine proffered instances of other-
acts evidence on the jury would substantially outweigh its probative value.
However, the trial court found the appropriate balance between the probative
value of this evidence and its prejudicial effect could be found by allowing the
Commonwealth to present other-acts evidence related to sexual abuse claims
against Father Robert Brennan, Father Cudemo, and Father Bolesta in its case-
in-chief, while excluding other-acts evidence relating to claims against the
others. This timely appeal follows.
____________________________________________
7In its original motion, the Commonwealth sought to introduce twelve of the
original twenty-one instances of other-acts evidence. See Commonwealth’s
Motion in Limine to Admit Evidence of Other Bad Acts Pursuant to Pa.R.E.
404(b), 12/14/16. However, at the hearing on the matter, the Commonwealth
withdrew its request to admit evidence relating to three other priests. See
N.T., Hearing, 3/28/17, at 6, 9, 18. The Commonwealth’s decision to pursue
only nine instances of other-acts evidence is reflected in the trial court’s order
granting in part, and denying in part, the Commonwealth’s motion. See Order,
4/19/17.
-6-
J-A08013-18
On appeal, the Commonwealth challenges the trial court’s decision to
limit the introduction of other-acts evidence to the three instances of sexual
abuse claims outlined above. Admissibility of evidence is within the sound
discretion of the trial court and will not be disturbed absent an abuse of
discretion. See Commonwealth v. Arrington, 86 A.3d 831, 842 (Pa. 2014).
“An abuse of discretion is not merely an error of judgment, but is rather the
overriding or misapplication of the law, or the exercise of judgment that is
manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality,
as shown by the evidence of record.” Commonwealth v. Sitler, 144 A.3d
156, 163 (Pa. Super. 2016) (en banc) (citation omitted).
Relevance is the threshold for admissibility of evidence. See
Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008). “Evidence is
relevant if it logically tends to establish a material fact in the case, tends to
make a fact at issue more or less probable or supports a reasonable inference
or presumption regarding a material fact.” Commonwealth v. Drumheller,
808 A.2d 893, 904 (Pa. 2002) (citation omitted). “All relevant evidence is
admissible, except as otherwise provided by law.” Pa.R.E. 402.
One such law that limits the admissibility of relevant evidence is Rule
404. Under Rule 404, evidence of “a crime, wrong, or other act” is inadmissible
“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, this evidence may be admissible when relevant for another purpose,
such as “proving motive, opportunity, intent, preparation, plan, knowledge,
-7-
J-A08013-18
identity, absence of mistake, or lack of accident.” Pa.R.E. 404(b)(2). “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).
Here, the trial court did not analyze each of the Commonwealth’s nine
proffered instances of other-acts evidence to determine if the evidence was
relevant for another purpose under Rule 404(b)(2). Instead, the trial court
presumed that prior rulings had adjudicated all nine of these instances of
other-acts evidence relevant to proving one of the categories set forth in Rule
404(b)(2). See Trial Court Opinion, 8/4/17, at 4 (citing Lynn III for the
notion that “merely crossing the threshold of demonstrating that other-acts
evidence was probative of some Rule 404(b)(2) category does not by itself,
demonstrate admissibility.”)8 The Commonwealth does not challenge the trial
court’s presumption. Indeed, the crux of the Commonwealth’s appeal is its
contention that the trial court abused its discretion in conducting this
balancing test and excluding six of the nine proffered instances of other-acts
____________________________________________
8 While the trial court appears to believe that Lynn III ruled each of the
twenty-one acts offered by the Commonwealth (and subsequently, the nine
acts the Commonwealth derived from the original twenty-one acts) at least
minimally probative of a permissible Rule 404(b)(2) category, we note that
this Court in Lynn III did not analyze these acts to determine their relevance
to the categories. See Lynn III, No. 2171 EDA 2012, at 15, 2015 WL
9320082, at *8 (“For the purposes of this analysis, we assume that each of
the 21 instances of other-acts evidence served at least some minimal
probative value with regard to the permissible categories set forth in Rule
404(b)(2)….”) (emphasis added).
-8-
J-A08013-18
evidence because the evidence excluded is “highly probative and not
improperly prejudicial.” Commonwealth’s Brief, at 13. Therefore, we shall
confine our review to the balancing test the trial court performed, between
the probative value of the other-acts evidence and the potential for that
evidence to unfairly prejudice Lynn at the new trial.9
The prior panel of this Court in Lynn III aptly summarized the balancing
test the trial court must employ to determine if the probative value of Rule
404(b) evidence outweighs its prejudicial nature. The panel explained that
[m]erely crossing the threshold of demonstrating that other-acts
evidence was probative of some Rule 404(b)(2) category does
not, by itself, demonstrate admissibility. “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)
(emphasis added). In this context, “‘[u]nfair prejudice’ means a
tendency to suggest decision on an improper basis or to divert the
jury’s attention away from its duty of weighing the evidence
impartially.” Commonwealth v. Dillon, 925 A.2d 131, 141 (Pa.
2007).
Often cited in conjunction with this balancing test, as
invoked by the trial court in this case, is our Supreme Court’s
____________________________________________
9 Similar to the ruling made by the trial court originally in relation to the other-
acts evidence, the trial court here ruled on the other-acts evidence by
balancing its collective probative value against its collective prejudice. See
Trial Court Opinion, 8/4/17, at 3-4 (“On balance, the nine . . . instances,
cumulatively would be excessive[,] would have minimal relevance to Lynn’s
conduct, and would unduly prejudice [Lynn]”). Because the Commonwealth
does not specifically claim that the trial court erred by treating this evidence
collectively, and fails to adequately justify the admission of the evidence on a
case-by-case basis, once again, as in Lynn III, No. 2171 EDA 2012, at 16,
2015 WL 9320082, at *8, “we will review the trial court’s admission of the
totality of this evidence in kind.”
-9-
J-A08013-18
elucidation on the topic of prejudice in Commonwealth v. Lark,
543 A.2d 491 (Pa. 1988):
Not surprisingly, criminal defendants always wish to
excise evidence of unpleasant and unpalatable
circumstances surrounding a criminal offense from the
Commonwealth’s presentation at trial. Of course, the
courts must make sure that evidence of such
circumstances have some relevance to the case and are
not offered solely to inflame the jury or arouse prejudice
against the defendant. The court is not, however,
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, as appellant
would have preferred.
Id. at 501.
Naturally, as the Lark Court suggests, relevant evidence of
[Lynn’s] culpability for the charged offenses should not be
excluded merely because it tends to demonstrate his guilt.
However, our Supreme Court has also advised that, “to be
admissible under the [motive] exception, evidence of a distinct
crime, even if relevant to motive, ‘must give sufficient ground to
believe that the crime currently being considered grew out of or
was in any way caused by the prior set of facts and
circumstances.’” Commonwealth v. Roman, 351 A.2d 214, 218-
219 (Pa. 1976) (emphasis added). Thus, we must not forget that
the rule being applied is that other-acts evidence is by default
inadmissible unless a Rule 404(b)(2) category or similar
justification applies, and the probative value of that evidence
outweighs its potential for prejudice. The burden is on the party
seeking admission to demonstrate the applicability of the
exception to the general rule; in this case, that burden fell on the
Commonwealth. There is no presumption of admissibility of other-
acts evidence merely because it is somewhat relevant for a non-
propensity purpose.
Lynn III, No. 2171 EDA 2012, at 29-30, 2015 WL 9320082, at *14 (emphasis
in original).
- 10 -
J-A08013-18
Turning to the Commonwealth’s assertion that the trial court erred in
failing to find the excluded evidence “highly probative,” the Commonwealth
contends that the additional evidence is “highly relevant” to establishing the
important aspects of the supervisory plan Lynn devised and executed. The
Commonwealth attempts to bolster this argument by asserting that, without
the additional evidence to firmly establish the existence of a criminal element,
it would be unable to establish that Lynn knowingly violated a duty of care,
and therefore unable to establish all of the elements in EWOC.10 And the
Commonwealth argues that the exclusion of this evidence not only undermines
its argument that Lynn operated pursuant to a criminal plan, but improperly
allows Lynn to argue that his actions were the result of a mistake.
The trial court determined that the other-acts evidence pertaining to
Bolesta, Brennan, and Cudemo would “adequately cover the area the
Commonwealth sought to establish[.]” Trial Court Opinion, 8/4/17, at 5. And
the trial court found that “the Commonwealth’s goal to show knowledge, and
____________________________________________
10For the purposes of Lynn’s case, the Commonwealth is operating under the
EWOC statute, effective from 1995 through 2004, which defined the offense
as follows: “A parent, guardian or other person supervising the welfare of a
child under 18 years of age commits a misdemeanor of the second degree if
he knowingly endangers the welfare of the child by violating a duty of care,
protection or support.” 18 Pa.C.S.A. § 4304(a). Our Supreme Court previously
found that Lynn, in his position as Secretary for Clergy, owed the children a
duty to protect them from sexual predator priests. See Lynn II, 114 A.2d at
819.
- 11 -
J-A08013-18
refute an isolated mistake on the part of Lynn could be established with the
three [instances of other-acts evidence] that were permitted.” Id., at 4.
The Commonwealth argues that the trial court’s decision to limit its
other-acts evidence to three instances inadequately reveals the details of the
criminal plan Lynn devised. However, the Commonwealth completely fails to
demonstrate how its burden to prove the details of Lynn’s alleged criminal
plan can only be satisfied by the inclusion of the six additional instances of
other-acts evidence. In fact, in its brief, the Commonwealth admits that the
same pattern or criminal scheme it finds imperative in the six excluded
instances “can be perceived in the three cases the lower court did decide to
allow[.]” Commonwealth’s Brief, at 9 n.3. Given this, we cannot fault the trial
court for concluding that the excluded evidence is cumulative and, thus, of
dubious additional probative value.
Additionally, the Commonwealth contends the exclusion of these six acts
would prevent it from proving the “knowledge” element of EWOC. In support,
the Commonwealth relies heavily upon our decision in Hutchinson ex. rel
Hutchinson v. Luddy, 763 A.2d 826 (Pa. Super. 2000), vacated on other
grounds Hutchinson ex. rel. Hutchinson v. Luddy, 870 A.2d 766 (Pa.
2005).
In Hutchinson, a plaintiff who, as a child, was sexually abused by a
priest, brought a civil action against both the priest and parties involved in the
church’s hierarchy (“Diocesan Parties”). See 763 A.2d at 829. Hutchinson
- 12 -
J-A08013-18
claimed that the Diocesan Parties negligently supervised the priest and in
response the trial court ruled that Hutchinson could introduce eleven instances
of how the Diocesan Parties handled sexually abusive priests. See id., at 829-
830. Following an appeal by the Diocesan Parties, a panel of this Court found
that the trial court did not abuse its discretion in admitting this evidence
because it was relevant to establishing that the Diocesan Parties had dealt
with these issues before and therefore should have been aware of the priest’s
behavior in this instance. See id., at 843, 845.
The Commonwealth invites us to read Hutchinson to require the
admission of extensive evidence of other bad acts in order to prove
knowledge, and to prevent claims that Lynn had no knowledge of Avery’s
danger to children. The Commonwealth’s interpretation of Hutchinson is
misguided. We did not hold in Hutchinson that extensive evidence was
required to prove knowledge—only that the evidence was relevant to proving
knowledge. See id., at 845. We did not hold that the admission of extensive
evidence of other bad acts is required to defeat a defense of lack of knowledge.
Our ruling in Hutchinson focused on the conclusion that the trial court did
not abuse its broad discretion in determining that the eleven instances were
highly relevant, and that the probative value of the evidence outweighed any
prejudicial effect.
In this case, given our standard of review, we cannot find that the trial
court abused its discretion in limiting the evidence of other acts simply
- 13 -
J-A08013-18
because the trial court in Hutchinson weighed the evidence differently. The
trial court here found that the six excluded instances of other-acts evidence
were only minimally relevant as proof of Lynn’s conduct. The record simply
does not support a finding that this was an abuse of discretion.
Moving to the next portion of the balancing test, the Commonwealth
argues “the excluded evidence carries virtually no risk of improper prejudice.”
Commonwealth’s Brief, at 20-23. Specifically, the Commonwealth notes that
improper prejudice is not plausible in this case because the other acts the
Commonwealth is seeking to admit do not consist of crimes previously
committed by Lynn, but rather crimes committed by Lynn’s supervisees.
This argument is specious. Indeed, the previous panel, in examining the
exact same evidence, found that “the potential for unfair prejudice was great
when the court admitted evidence of the sexual molestation of children at the
hands of sexually deviant priests other than those directly at issue in the case
at hand.” Lynn III, No. 2171 EDA 2012, at 32, 2015 WL 9320082, at *15.
Though the Commonwealth now seeks to admit fewer instances of other-acts
evidence, we cannot ignore our prior determination that the prejudicial nature
of the proffered other-acts evidence is great and readily apparent.11
____________________________________________
11 We direct the interested reader to Lynn III, No. 2171 EDA 2012, at 28-36,
2015 WL 9320082, at *14-*16, for a complete discussion of the potential
prejudicial nature of the other-act evidence the Commonwealth seeks to
introduce.
- 14 -
J-A08013-18
Because we find no error in the trial court’s determination that the six
excluded instances of other-acts evidence were marginally probative but
highly prejudicial, we cannot find that the trial court abused its discretion by
excluding these instances pursuant to the balancing test.
Order affirmed. Counsel for Lynn directed to file substituted brief.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/18
- 15 -