Com. v. Bussard, G. ( 2020 )

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J-A22028-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GEOFFREY AARON BUSSARD :
:
Appellant : No. 415 MDA 2020
Appeal from the Judgment of Sentence Entered February 21, 2020
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0001373-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GEOFFREY AARON BUSSARD :
:
Appellant : No. 416 MDA 2020
Appeal from the Judgment of Sentence Entered February 21, 2020
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0002831-2019
BEFORE: SHOGAN, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 23, 2020
Appellant, Geoffrey Aaron Bussard, appeals from the judgments of
sentence entered in the above-captioned matters. Due to the congruent
nature of the parties, the facts, and the procedural history in these related
cases, we address the appeals in a single Memorandum. After review, we
affirm.
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The Commonwealth charged Appellant with numerous crimes in
connection with his repeated sexual abuse of the minor children, A.B. and V.N.
A.B. is Appellant’s daughter, and V.N. is A.B.’s neighborhood friend. The
crimes perpetrated against V.N. were docketed at trial court docket number
CP-36-CR-0001373-2019 (“1373-2019”), and the crimes against A.B. appear
at trial court docket number CP-36-CR-0002831-2019 (“2831-2019”).1 On
May 24, 2019, the Commonwealth filed notice of its intent to try the cases
jointly. On August 29, 2019, Appellant filed a motion to sever the trials, which
the trial court denied on September 11, 2019. The cases were tried jointly
before a jury on October 21, 2019, through October 23, 2019.
The trial court summarized the jury verdict as follows:
On October 23, 2019, following a jury trial, [Appellant] was
found guilty at docket number 1373-2019 of rape of a child less
than thirteen (13) years of age, aggravated indecent assault of a
child less than thirteen (13) years of age without consent, two (2)
counts of involuntary deviate sexual intercourse with a child less
than thirteen (13) years of age, aggravated indecent assault of a
child less than thirteen (13) years of age, statutory sexual assault
of a child eleven (11) years of age or older, a course of conduct
of indecent assault of a child less than thirteen (13) years of age,
unlawful contact with a minor, corruption of a minor[,] and a
course of conduct of endangering the welfare of a child.[2] Those
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1 The appeal in 1373-2019 appears at Superior Court docket number 415
MDA 2020, and the appeal at 2831-2019 was docketed at 416 MDA 2020.
2 18 Pa.C.S. §§ 3121(c), 3125(b), 3123(b), 3125(a)(7), 3122.1(b),
3126(a)(7), 6318(a)(1), 6301(a)(1)(ii), and 4304(a) respectively. These
crimes occurred between August of 2006 and August of 2013. Amended
Information, 4/12/19.
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convictions arose from [Appellant’s] longtime sexual abuse of
minor child, V.N.[, who was born in 2001], a childhood friend of
[Appellant’s] daughter. At docket number 2831-2019, [Appellant]
was found guilty of rape of a child less than thirteen (13) years of
age, statutory sexual assault of a child eleven (11) years of age
or older, incest with a child less than thirteen (13) years of age,
indecent assault of a child less than thirteen (13) years of age,
indecent assault without consent, sexual assault, corruption of a
minor[,] and endangering the welfare of a child.[3] Those
convictions arose from [Appellant’s] sexual abuse of his minor
daughter, A.B.[, who was born in 2003].
Trial Court Opinion, 5/7/20, at 1-2.
On February 21, 2020, the trial court sentenced Appellant to an
aggregate term of twelve and one-half to twenty-eight years of incarceration
at 2831-2019. N.T., Sentencing, 2/21/20, at 15. At the same sentencing
hearing, the trial court sentenced Appellant to an aggregate term of seventeen
to thirty-five years of incarceration at 1373-2019, and the trial court ordered
the sentence at 1373-2019 to be served consecutively to the sentence
imposed at 2831-2019. Id.
On March 3, 2020, Appellant filed timely appeals at both trial court
dockets; the trial court and Appellant complied with Pa.R.A.P. 1925 at each
docket. In both appeals, Appellant contends that the trial court erred in
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3 18 Pa.C.S. §§ 3121(c), 3122.1(b), 4302, 3126(a)(7), 3126(a)(1), 3124.1,
6301(a)(1)(ii), and 4304(a) respectively. These crimes occurred between
January of 2007, and December of 2009. Amended Information, 8/14/19.
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denying his motion to sever the trials. Appellant’s Brief (415 MDA 2020), at
4; Appellant’s Brief (416 MDA 2020), at 4.4
“The general policy of the laws is to encourage joinder of offenses and
consolidation of indictments when judicial economy can thereby be effected,
especially when the result will be to avoid the expensive and time consuming
duplication of evidence.” Commonwealth v. Patterson, 546 A.2d 596, 600
(Pa. 1988). 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). Our Rules of Criminal Procedure
provide as follows:
Joinder—Trial of Separate Indictments or Informations
(A) Standards
(1) Offenses charged in separate indictments or
informations may be tried together if:
(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)(a)-(b). “To establish that evidence of other crimes is
admissible at trial, the evidence must be used for a purpose other than to
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4 Appellant’s Briefs at 415 MDA 2020 and 416 MDA 2020 are substantially the
same.
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show mere propensity to commit a crime. Commonwealth v. Johnson, 236
A.3d 1141, 1150 (Pa. Super. 2020) (citing Pa.R.E. 404(b)(1)). “Rationales for
the admission of other crimes or bad acts evidence include using this evidence
to prove identity, intent, malice, absence of mistake or accident, common
scheme or plan, and where the prior or subsequent act is part of the history
of the event or part of the natural development of the facts.” Id. (citing
Commonwealth v. Collins, 703 A.2d 418, 422 (Pa. 1997)).
The trial court addressed this issue as follows:
In the instant case, it was determined that, in addition to
some of the offenses charged being based upon at least one
common act or occurrence, that the evidence of each of the
offenses would be admissible in a separate trial for the other. At
least once, the victims were eyewitnesses to [Appellant’s] acts
against the other and to other important events. A.B. testified
that V.N. was present one time when [Appellant] engaged in
sexual intercourse [with A.B.] and that immediately after[,] she
witnessed [Appellant] appear[] to engage in the same conduct
with V.N.6 V.N. testified that A.B. was present in the same bed
several times when [V.N.] was sexually abused by [Appellant].7
The testimony of both girls demonstrates that the presence of the
other did not deter [Appellant’s] conduct and also explains why it
did not deter his conduct.
6 N.T. Jury Trial, Vol. II, 10/22/19, pp. 209-214.
7 N.T. Jury Trial, Vol. I, 10/21/19, pp. 115, 118-125, 129[.]
Furthermore, both of the victims testified that they discussed
the abuse with each other and with their common friend, K.G. and
spoke with each other about the need to report the abuse to
protect A.B.’s younger sister who was approaching [the same age
as A.B. and V.N. were when Appellant] began abusing the
victims.8 It later became unnecessary to report the abuse when
A.B.’s sister drowned in [a] pool.9 When the abuse against V.N.
came to light and she decided to cooperate with [the] prosecution,
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A.B. expressed that she further delayed reporting because she felt
she was receiving indirect justice through V.N.’s case.10 The
testimony demonstrates that, in addition to their separate reasons
for not reporting the abuse sooner, the victims had common
reasons for delaying their reports and reasons that were related
to [Appellant’s] offenses against the other.
8 N.T. Jury Trial, Vol. I, 10/21/19, pp. 137-139; N.T. Jury
Trial, Vol. II, 10/22/19, pp. 215-218, 248, 256-257, 339-
340.
9 N.T. Jury Trial, Vol. I, 10/21/19, pp. 139-140; N.T. Jury
Trial, Vol. II, 10/22/19, pp. 218.
10 N.T. Jury Trial, Vol. II, 10/22/19, pp. 223-224; N.T. Jury
Trial, Vol. III, 10/23/19, pp. 376-377.
[Appellant’s] crimes against … the victims were also
substantially similar. Both victims were around the same age
when the abuse began,11 the abuse of each victim occurred close
in time and overlapped with the abuse of the other, the abuse in
each case was achieved through similar means,12 both victims
spent a substantial amount of time alone with [Appellant],
[Appellant] cultivated a close parent-like relationship with both of
the victims … .13 and both victims were sexually abused within the
home of [Appellant]. [Appellant’s] degree of impropriety varied
with the victims, but he clearly operated decisively within a
common scheme and with a clear motive and intent.
11N.T. Jury Trial, Vol. I, 10/21/19, p. 124; N.T. Jury Trial,
Vol. 11, 10/22/19, p. 204.
12 Both A.B. and V.N. testified that [Appellant] placed their
hand on his penis and instructed them on how to masturbate
him. N.T. Jury Trial, Vol. I, 10/21/19, p. 121; N.T. Jury Trial,
Vol. II, 10/22/19, pp. 204-209. Both A.B. and V.N. testified
that [Appellant] engaged in sexual intercourse with both of
them by placing them on higher surfaces with their legs
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spread apart. N.T. Jury Trial, Vol. I, 10/21/19, pp. 129-
132; N.T. Jury Trial, Vol. II, 10/22/19, pp. 209-214.[5]
13 N.T. Jury Trial, Vol. I, 10/21/19, pp. 135-136, 145-150.
The probative value of the evidence outweighed any prejudicial
effect in each case. The evidence of the offenses was critical to
corroborate the victims’ testimony and to deflect [Appellant’s]
credibility attacks of the victims, the testimony [Appellant] offered
from A.B.’s mother implying that he did not have access or
opportunity to commit the offenses,14 and [Appellant’s]
suggestion that the victims were making false allegations based
upon a common motive, such as to keep him in jail and away from
A.B.’s mother15. The evidence was capable of separation by the
jury so as to avoid danger of confusion, especially given that the
jurors were permitted to take notes throughout the trial and that
each girl testified clearly about the distinct sexual crimes
[Appellant] committed against them. The evidence against
[Appellant] did not tend to convict [Appellant] solely by showing
a propensity to commit crimes.
14 N.T. Jury Trial, Vol. III, 10/23/19, pp. 388-389, 392.
15 N.T. Jury Trial, Vol. II, 10/22/19, pp. 243-245; N.T. Jury
Trial. Vol. Ill, 10/23/19, pp. 376-377, 406-408.
Since the victims’ testimony was interconnected and since each
victim’s testimony corroborated the other’s accounts, both
concerning the abuse, [Appellant’s] opportunity to commit the
offenses and the reasons for the delays in reporting, it was
necessary for the victims to testify before a single jury in order to
present a complete picture of Appellant’s conduct. [Appellant]
committed a series of crimes that were related. He created the
sequence of events and the circumstances that allowed [the]
offenses to continue and to go unnoticed and unreported and
cannot fairly now demand that the matters be severed and tried
in separate trials. [Appellant] was not unduly prejudiced by the
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5 The testimony revealed that Appellant would seat the unclothed children on
a table or chest-freezer in order to elevate them in his effort to attempt vaginal
penetration. N.T., Trial, 10/21/19, at 129-132; N.T., Trial, 10/22/19, at 209-
214.
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decision to allow the jury to hear evidence of the separate, yet
interrelated, crimes.
Trial Court Opinion, 5/7/20, at 6-9.
After review, we agree with the trial court’s conclusion that Appellant’s
crimes were part of a common scheme, with a clear motive and intent. Trial
Court Opinion, 5/7/20, at 8. V.N. testified that Appellant committed many of
these crimes while she shared a bed with A.B. during sleepovers at Appellant’s
house where A.B. lived. N.T., Trial, 10/21/19, at 116-124. Moreover, A.B.
witnessed Appellant sexually assault V.N., and V.N. witnessed Appellant rape
A.B. N.T., Trial, 10/22/19, at 209-214. As the Commonwealth asserted: “The
sexual assaults that were perpetrated on [V.N.] and [A.B.] are so intertwined
that to have separate trials would be to essentially have the same trial, twice.”
Commonwealth’s Brief at 9. The acts to which the children separately testified
are part of the history of the events and part of the natural development of
the facts of Appellant sexually assaulting and repeatedly victimizing these
children. Collins, 703 A.2d at 422. Thus, the evidence of the offenses
committed against A.B. would have been admissible in a separate trial for the
crimes committed against V.N., and vice versa. Id.
We conclude that Appellant’s claims of error are meritless. Accordingly,
we discern no abuse of discretion in the trial court denying Appellant’s motion
to sever, and we affirm the judgments of sentence.
Judgments of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2020
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