Com. v. D.R.L. ( 2017 )

J-A33006-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
D.R.L.
Appellant No. 399 WDA 2016
Appeal from the Judgment of Sentence January 26, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002775-2014
BEFORE: LAZARUS, J., SOLANO, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 17, 2017
D.R.L. appeals from the judgment of sentence, entered in the Court of
Common Pleas of Erie County, following his convictions for rape of a person
less than 13 years old,1 two counts of involuntary deviate sexual intercourse
with a person less than 13 years old,2 sexual assault,3 two counts of
indecent assault of a person less than 13 years old,4 corruption of a minor,5
and endangering the welfare of children.6 Upon review, we affirm.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 P.S. § 3121(a)(6).
2
18 P.S. § 3123(a)(6).
3
18 P.S. § 3124.1.
4
18 P.S. § 3126(a)(7).
(Footnote Continued Next Page)
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In February 2014, K.R. and his half-brother G.B. made a report to the
Erie Police Department alleging that D.R.L., their cousin-by-marriage, had
sexually abused them during their childhoods. The abuse occurred mostly
when their mother, R.R., took them to be babysat at the home of her cousin,
Kathy, who was D.R.L.’s wife. K.R. was abused when he was approximately
eight to thirteen years old. G.B., eight years older than K.R., was abused
from the time he was approximately five to thirteen years of age. The
brothers were never abused together, and were each unaware that the other
had been abused until G.B. disclosed the abuse to his mother, R.R., in an
effort to explain his self-estrangement from various family members. R.R.
then contacted K.R., who admitted that D.R.L. had also abused him. They
subsequently discovered that their cousin, D.R.L.’s oldest daughter, had
given birth to a baby boy and planned to move back to Erie to be closer to
her father. In an effort to protect the baby from abuse by D.R.L., the
brothers disclosed the abuse to their cousin, who encouraged them to go to
the police.
On or about March 3, 2014, the Erie Police Department forwarded to
Detective Joseph Spusta the information concerning the sexual abuse
allegations against D.R.L. and the following day Detective Spusta
_______________________
(Footnote Continued)
5
18 P.S. § 6301(a)(1)(ii).
6
18 P.S. § 4304(a)(1).
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interviewed K.R. On April 11, 2014, Detective Spusta conducted a one-way
consensual phone call intercept between K.R. and D.R.L., in which K.R.
confronted D.R.L. about the past abuse. D.R.L. neither confirmed nor
denied the allegations, but claimed he had no memory of them. Detective
Spusta interviewed D.R.L. on May 22, 2014, and he again claimed he had no
memory of the abuse but neither confirmed nor denied the claims. On
August 29, 2014, Detective Spusta filed charges against D.R.L. Detective
Spusta did not interview G.B. until June 2015, and no charges were brought
concerning D.R.L.’s alleged abuse of G.B., as the statute of limitations had
run.
A hearing on a pre-trial motion in limine was held on July 13, 2015 to
determine the admissibility of G.B.’s testimony regarding his abuse at the
hands of D.R.L. The court held that the testimony was admissible to
demonstrate a common plan, scheme or design pursuant to Pa.R.E. 404(b).
Following a two-day trial, a jury convicted D.R.L. of the
aforementioned charges. The court sentenced D.R.L. on January 26, 2016,
to 21 to 42 years’ incarceration and ordered that he be classified a sexually
violent predator under the Sex Offender Registration and Notification Act
(SORNA)7 and register as such for life. D.R.L. filed a motion to
____________________________________________
7
42 Pa.C.S.A. §§ 9799.10-9799.41
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modify/reconsider sentence on February 1, 2016, which the court denied on
March 4, 2016.
D.R.L. filed a timely notice of appeal on March 16, 2016, followed by a
court-ordered statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). On appeal, D.R.L. raises the following issue for our
review:
Whether the [trial] court committed reversible error when it
allowed a Commonwealth witness to testify concerning
uncharged criminal allegations that [D.R.L.] had also sexually
assaulted that witness?
Brief for Appellant, at 13.
In reviewing an evidentiary ruling by the trial court,
our standard of review is one of deference. The admissibility of
evidence is solely within the discretion of the trial court and will
be reversed only if the trial court has abused its discretion. 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. Herb, 852 A.2d 356, 363 (Pa. Super. 2004) (citations
omitted).
D.R.L. asserts that the trial court abused its discretion when it allowed
the Commonwealth to introduce evidence of G.B.’s uncharged sexual abuse.
Specifically, D.R.L. asserts that the trial court erred when it allowed G.B. to
testify regarding nearly ten years of alleged abuse he endured at the hands
of D.R.L. prior to the abuse of K.R. D.R.L. argues that the dispositive issue
before the jury was K.R.’s credibility. D.R.L. asserts that G.B.’s testimony
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regarding separate, uncharged abuse inflamed and prejudiced the jury
against D.R.L. such that “the defense’s ability to have the jury carefully and
objectively consider K.R.’s credibility was destroyed.” Brief for Appellant, at
14. D.R.L. also argues that the distance in time between the boys’ abuse
rendered G.B.’s testimony inadmissible.
Moreover, D.R.L. asserts that even if G.B.’s testimony were admissible
under one of the exceptions set forth in Rule 404(b), the trial court
nevertheless erred by admitting the testimony because its probative value
was outweighed by its potential for unfair prejudice. D.R.L. argues that
G.B.’s testimony was actually introduced with the improper purpose of
demonstrating D.R.L.’s propensity to commit this type of crime, which is
explicitly prohibited by Rule 404(b).
Evidence of other crimes is not precluded merely because it prejudices
the defense. Commonwealth v. Brown, 414 A.2d 70, 75 (Pa.1980).
Indeed, all evidence of guilt is prejudicial to the defense; the Rules of
Evidence only prohibit unfair prejudice. Commonwealth v. Hairston, 84
A.3d 657, 670 (Pa. 2014). As our Supreme Court has summarized:
Generally, evidence of prior bad acts or unrelated criminal
activity is inadmissible to show that a defendant acted in
conformity with those past acts or to show criminal propensity.
Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be
admissible when offered to prove some other relevant fact, such
as motive, opportunity, intent, preparation, plan, knowledge,
identity, and absence of mistake or accident. Pa.R.E. 404(b)(2).
In determining whether evidence of other prior bad acts is
admissible, the trial court is obliged to balance the probative
value of such evidence against its prejudicial impact.
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Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009) (citations
omitted).
Here, the trial court admitted G.B.’s testimony for the limited purpose
of demonstrating D.R.L.’s common plan, scheme, or design based on the
similar relationship of the two boys to D.R.L. and the common pattern of
D.R.L.’s abuse of the boys. While the specifics vary slightly, the abuse
followed similar progressions in each case. Both boys testified that the
abuse happened primarily in D.R.L.’s home during his caretaking duties, as
well as in his car in empty lots and at the cemetery where D.R.L. worked.
The abuse began for both boys at very young ages with fondling by D.R.L.,
which progressed to mutual masturbation, oral sex, and culminated in D.R.L.
performing anal sex upon each of the victims. Each boy also testified to
D.R.L.’s coercive nature, stating that he acted as if they were “buddies” and
that his actions were normal. Both boys testified that the abuse in D.R.L.’s
home generally occurred while others were present in the household.
Furthermore, neither boy reported the abuse out of fear of D.R.L., though
only G.B. remembers actually being threatened by D.R.L.
In arguing that G.B.’s testimony falls under the common plan
exception of Rule 404(b), the Commonwealth relies on Commonwealth v.
Frank, 577 A.2d 609 (1990). There, a counselor working with troubled
orphans was charged with molesting one of his patients. At trial, the
Commonwealth sought to introduce testimony from six other patients who
alleged similar abuse by the defendant, the most recent of which occurred
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approximately three to four years prior to the conduct giving rise to the
charges. The trial court allowed the testimony and the counselor was
ultimately convicted. This Court, in affirming the trial court, set forth the
appropriate standard for determining the application of the common plan
exception:
[A] determination of whether evidence is admissible under the
common plan exception must be made on a case by case basis
in accordance with the unique facts and circumstances of each
case. However, we recognize that in each case, the trial court is
bound to follow the same controlling, albeit general, principles of
law. When ruling upon the admissibility of evidence under the
common plan exception, the trial court must first examine the
details and surrounding circumstances of each criminal incident
to assure that the evidence reveals criminal conduct which is
distinctive and so nearly identical as to become the signature of
the same perpetrator. 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.
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Id. at 614. The Court rejected the defendant’s argument that evidence of
the uncharged acts occurring three to four years prior were too remote in
time to be admissible.
Here, as in Frank, the abuse of G.B. ended approximately three years
prior to when the abuse of K.R. began. “While remoteness in time is a factor
to be considered in determining the probative value of other crimes evidence
under [the “common scheme”] theory, the importance of the time period is
inversely proportional to the similarity of the crimes in question.”
Commonwealth v. Miller, 664 A.2d 1310, 1319 (Pa. 1995). As noted
supra, the similarity between D.R.L.’s crimes against the two boys is
striking. The boys were roughly the same age range during the abuse. The
nature of the sexual contact between D.R.L. and the boys followed the same
progression. Both boys were abused while D.R.L. acted in the role of
caregiver. Finally, the location of the abuse – D.R.L.’s residence and car, as
well as the cemetery at which he worked – was the same in each case.
Since the pattern of abuse committed upon his victims was so distinct, we
cannot find that the trial court abused its discretion in concluding that the
three-year time period between the victimization of G.B. and K.R. was not so
excessive as to render G.B.’s testimony overly prejudicial.
With regard to prejudice, we have previously noted:
Whether relevant evidence is unduly prejudicial is a function in
part of the degree to which it is necessary to prove the case of
the opposing party. Here, the Commonwealth was required to
prove that a non-consensual touching occurred, the purpose of
which was sexual gratification. [The defendant] denies that the
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touching occurred, and since the uncorroborated testimony of
the alleged victim in this case might reasonably lead a jury to
determine that there was a reasonable doubt as to whether [the
defendant] committed the crime charged, it is fair to conclude
that the other crimes evidence is necessary for the prosecution
of the case. Without doubt, the other crimes evidence would be
prejudicial to [the defendant.] That is what it is designed to be.
On the facts of this case, however, it is not unduly prejudicial, as
it is required for the Commonwealth’s case.
Commonwealth v. Ardinger, 839 A.2d 1143, 1145–46 (Pa. Super. 2003)
(citation omitted).
Similarly, here, the Commonwealth was faced with the task of proving
its case based on the uncorroborated testimony of K.R., whose abuse had
occurred between fifteen and twenty years prior. D.R.L. denied the abuse
had occurred. Accordingly, G.B.’s testimony, demonstrating a pattern of
conduct by D.R.L., was instrumental to the Commonwealth proving, beyond
a reasonable doubt, that D.R.L. had committed the crimes of which he was
accused. Under these circumstances, we cannot say that the probative
value of G.B.’s testimony was outweighed by its prejudicial effect.
Lastly, we note that the trial court gave the jury a limiting instruction
regarding the narrow purpose for which they were to consider the evidence
of G.B.’s abuse. Specifically, the court instructed the jury as follows:
Now, you heard evidence tending to show that the defendant
was guilty of other criminal conduct for which he is not on trial.
I am speaking of the testimony of [G.B.] The evidence – or that
evidence is before you for a limited purpose, that is, the purpose
of tending to show a common scheme or plan on behalf of the
defendant. This evidence must not be considered by you in any
way other than for the purpose I have just stated. You must not
regard this evidence as showing that the defendant is a person
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of bad character or criminal tendency from which you might be
inclined to infer guilt.
N.T. Trial, 10/22/15, 89-90. It is well-settled that the jury is presumed to
follow the trial court’s instructions. Commonwealth v. Cash, 137 A.3d
1262, 1280 (Pa. 2016), citing Commonwealth v. Travaglia, 28 A.3d 868,
882 (Pa. 2011).
For all of the foregoing reasons, we find that the trial court did not
abuse its discretion in admitting the prior bad act testimony of G.B. under
the common plan exception pursuant to Rule 404(b).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/17/2017
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