Com. v. Williams, J. ( 2020 )

J-S33037-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN WILLIAMS :
:
Appellant : No. 421 EDA 2019
Appeal from the Judgment of Sentence Entered January 11, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009034-2017
BEFORE: DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 07, 2020
Appellant John Williams appeals from the judgment of sentence entered
in the Court of Common Pleas of Philadelphia County on January 11, 2019,
following his conviction of rape of a child and related offenses in connection
with his stepdaughter, N.P. We affirm.
On July 25, 2018, the Commonwealth filed a motion to admit prior acts
of Appellant pursuant to Pa.R.E. 404(b).1 Therein, the Commonwealth
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* Former Justice specially assigned to the Superior Court.
1 Pa.R.E. 404 provides, in relevant part, as follows:
(b) Crimes, Wrongs or Other Acts.
(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.
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argued, inter alia, that the following facts were admissible at trial to show
Appellant’s common plan, scheme, and design in engaging in sexual activity
with young girls placed in his care:
In the summer of 2004, [Appellant] sexually molested his
daughter, S.W., aged 12 years old, at his residence [ ].2
Appellant touched S.W. with his hands and fingers “all over [her]
body,” on her legs, chest, buttocks, and “other personal spot,”
(vagina) under her clothes. These incidents occurred “all
throughout the house,” and every time S.W. visited [Appellant’s]
residence. Though S.W. told [Appellant] to stop, [Appellant]
continued to abuse and even threatened to “do something else” if
S.W. confessed the abuse.
See Commonwealth’s Motion in Limine to Admit Other Acts/Crimes Evidence
Pursuant to Pa.R.E. 404(b), filed 7/25/18 at 3 (some brackets added). The
parties presented argument on the motion on October 23, 2018. At that time,
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(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.
(3) Notice in a Criminal Case. In a criminal case the prosecutor
must provide reasonable notice in advance of trial, or during trial
if the court excuses pretrial notice on good cause shown, of the
general nature of any such evidence the prosecutor intends to
introduce at trial.
Pa.R.E. 404(b).
2 We have modified the quotation from the Commonwealth’s motion along
with the trial court’s statement of facts to remove proper names, specific
dates, and addresses so as to protect N.P.’s identity.
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the Commonwealth averred S.W.’s testimony would constitute valuable and
probative evidence to boost the credibility of N.P. as N.P.’s testimony would
occur in isolation and many years after the abuse had occurred. Id. at 3-5.
After hearing argument and upon noting it had conducted its own legal
research, the trial court ultimately granted the Commonwealth’s motion, id.
at 8, and the matter proceeded to a jury trial.3
The trial court set forth the relevant facts revealed at trial as follows:
The Complainant, N.P. was born [in August of 1998]. (N.T.
10/24/18 at 21). Throughout most of her life, N.P. knew the
Appellant as a stepfather to her and her four siblings. (Id. at 22,
25-26). N.P., her siblings, the Appellant, and [N.P.’s Mother]
shared a residence [ ] in Philadelphia. Id. At 25-26, 63). At trial,
N.P. testified to multiple instances of sexual abuse by the
Appellant, which spanned the course of nearly ten years. The first
incident occurred in the [ ] home, when N.P. was five years old.
(Id. at 23-24). The Appellant took N.P. to his bedroom, sat her
at the edge of the bed, touched the outside of her vaginal area,
and digitally penetrated her vagina. (Id. at 23). N.P. testified
that similar episodes occurred while they were living on [ ], but
she could not remember how may there were. (Id. at 24-25).
N.P. further explained that these incidents occurred during the
day, while her mother was at work. (Id. at 23, 25-26, 65). At
the time, she did not disclose the abuse to anyone because “she
was scared and embarrassed.” (Id. at 26).
In 2006, when N.P. was around eight years old, the family
moved to a different home [ ] in Philadelphia. (Id. at 28, 63).
Around that time, the Appellant moved out of the home for one to
two years but moved back when N.P. was eleven or twelve. (Id.
at 28-29, 64). When he moved back in, he continued to sexually
assault N.P. (Id. at 29). Specifically, he touched the outside of
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3 The Commonwealth also had intended to present at trial the testimony of
the daughter of Appellant’s wife’s cousin, T.P., who referred to Appellant as
“uncle.” T.P. would have stated Appellant had sexually abused her as well.
See Commonwealth’s Motion in Limine at 1-2. However, T.P. was in the
hospital and unavailable to testify at the time of trial. N.T. 10/24/18, at 128.
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her vagina and digitally penetrated her on multiple occasions. (Id.
at 29). At some point, the Appellant’s behavior escalated; N.P.
testified that the Appellant had vaginal intercourse with her on
two occasions. (Id. at 29-30). She explained that both times, the
intercourse hurt and that she “scream[ed] and flinch[ed],” but the
Appellant did not stop. (Id. at 30).
The first instance involving vaginal intercourse occurred in
the living room. (Id at 31). N.P testified that she was sitting on
the couch when the Appellant started rubbing her vaginal area,
outside of her underwear. (Id.). He then placed her on the arm
of the couch, pulled his pants down, and inserted his penis into
her vagina. (Id.). On a different occasion, N.P. was getting
dressed in her bedroom when the Appellant entered her room and
asked her if she needed help putting on lotion. (Id. at 32-33).
She told him that she did not want help, but he rubbed it on her
anyway. (Id. at 32). He then pushed her onto her bed, climbed
on top of her, and inserted his penis into her vagina. (Id.). N.P.
did not disclose the abuse to anyone because she felt ashamed
and embarrassed. (Id. at 34).
When N.P. was fifteen years old, she finally disclosed the
Appellant’s abuse to her cousin [ ]. N.P. was sleeping over her
cousin’s home when she told her that the Appellant used to
sexually assault her. (Id.). Neither N.P. nor her cousin reported
the abuse to the police because N.P. was scared and assumed that
no one would believe her. (Id. at 36, 100). Four years later, when
N.P. was nineteen years old, she disclosed the abuse to her
mother and brother. (Id. at 36, 67, 86). [N.P.’s Mother] testified
that, when N.P. finally disclosed the abuse, N.P. was “hysterically
crying, shaking, just very—I’ve never seen my daughter that
upset. Very, very upset.” (Id. at 69). Afterwards [N.P.’s Mother]
reported the allegations to the police. (Id.).
At trial, the Commonwealth also elicited testimony from
S.W., The Appellant’s biological daughter. (N.T. 10/24/18 at
107). S.W. testified that she used to frequently visit the
Appellant’s home on [ ] (Id. at 108). In the summer of 2004,
when S.W. was twelve years old, the Appellant started to have
inappropriate, sexual contact with her. (Id. at 109). The first
incident occurred in the Appellant’s living room, while most of the
household members were watching TV. (Id.). S.W. explained the
incident as follows:
S.W. [M]e and my brothers and sisters had went over
to his house to visit him and our other family members.
Everybody was in the living room watching TV doing they
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own thing and he was sitting on the step. He told me to
come over towards him and has me coming over towards
him. He put his hands down my pants and was touching
my private area. When I went to move back, he pulled
me closer towards him and he continued on touching
me.
…
ADA: You said that he touched your private area?
S.W.: Yes.
ADA: What specifically did he do?
S.W.: Put his hand down my pants and touched, rubbing
on my private area.
ADA: The inside or outside?
S.W.: The inside.
ADA: You said other people were in the living room?
S.W.: Yes, everybody was just doing their own thing.
…
S.W.: The whole house was crowded. The whole house
was crowded, so everybody just up and down the steps,
running back and forth. And he was like- the steps like
right here and he is just sitting on the side of the steps.
And I walked over towards him up the steps and that is
when he pulled me towards him. He put his hands in my
pants and started constantly rubbing on my private area.
When I went to move back, he pulled me closer to him.
ADA: Just for the record, the witness pointed her hand
down towards her pants and moved it in the area [sic]
down to the belt area of her pants, up and downward.
THE COURT: So noted.
(Id. at 109-12).
S.W. testified that during a different visit, after [N.P.’s
Mother] had left for work, the Appellant woke her up and told her
to come to his bedroom. (Id. at 110, 113). The Appellant made
her lie on his bed before groping her breasts and touching her
“private area.” (Id. at 110). S.W. explained that she was
uncomfortable and emotional during the incident stating, “[a]s I
was lying back on the bed, I was crying- he asked was I okay and
I said, [y]eah, but I knew I wasn’t okay, and it just kept on
continuing.” (Id. at 110, 113). S.W. further testified that the
Appellant groped her or touched her “private areas” every time
she visited him (Id. at 109; 114; Com. Mot. in Limine to Admit
Other Acts at 3).
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Trial Court Opinion, 9/6/19, at 1-5 (some brackets added).
Appellant was found guilty of rape of a person less than thirteen years
old; unlawful contact with a minor; endangering the welfare of a child;
indecent assault of a person less than thirteen years old; and aggravated
indecent assault of a child.4 On January 11, 2019, Appellant received an
aggregate sentence of thirty-seven (37) years to seventy-four (74) years in
prison.
Appellant filed a timely appeal on February 1, 2019. On March 21,
2019, the trial court directed Appellant to file a concise statement of the
matters complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant
complied on June 10, 2019. The trial court filed its Rule 1925(a) Opinion on
September 6, 2019.
In his brief, Appellant presents the following issue for our review:
DID THE TRIAL COURT ERR WHEN IT GRANTED THE
COMMONWEALTH’S MOTION TO ADMIT PRIOR BAD ACTS
EVIDENCE PURSUANT TO PA.R.E. 404 (B), AS THE PROBATIVE
VALUE OF THIS EVIDENCE WAS OUTWEIGHED BY ITS POTENTIAL
FOR UNFAIR PREJUDICE?
Brief for Appellant at 2.
When analyzing the trial court’s pretrial ruling that S.W’s testimony
would be admissible, we apply the following, well-settled standard of review:
On appeals challenging an evidentiary ruling of the trial court, our
standard of review is limited. A trial court's decision will not be
reversed absent a clear abuse of discretion. Abuse of discretion is
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4 18 Pa.C.S.A. §§ 3121, 6318, 4504, 3126, 3125, respectively.
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not merely an error of judgment, but rather where the judgment
is manifestly unreasonable or where the law is not applied or
where the record shows that the action is a result of partiality,
prejudice, bias or ill will.
Commonwealth v. Aikens, 990 A.2d 1181, 1184–85 (Pa.Super. 2010)
(citations and quotation marks omitted). See also Commonwealth v.
Tyson, 119 A.3d 353 (Pa.Super. 2015) (en banc), appeal denied, 633 Pa.
787, 128 A.3d 220 (Pa. 2015).
Pennsylvania Rule of Evidence 404(b) provides that “[e]vidence of other
crimes, wrongs, or acts may be admitted for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity or absence
of mistake or accident.” See Commonwealth v. Moser, 999 A.2d 602, 605–
06 (Pa.Super. 2010); see also Pa.R.E. 404(b). “[E]vidence of prior crimes is
not admissible for the sole purpose of demonstrating a criminal defendant's
propensity to commit crimes.” Commonwealth v. Melendez–Rodriguez,
856 A.2d 1278, 1283 (Pa.Super. 2004). Such evidence is admissible only if
offered for a non-propensity purpose. Id.
Where, as herein, the Commonwealth seeks to admit a prior bad act
under the common plan, scheme, or design exception, the trial court first must
consider the details and surrounding circumstances of each incident to “assure
that the evidence reveals criminal conduct which is distinctive and so nearly
identical as to become the signature of the perpetrator.” See
Commonwealth v. G.D.M., Sr., 926 A.2d 984, 987 (Pa.Super. 2007).
Matters for consideration include “the habits or patterns of action or conduct
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undertaken by the perpetrator to commit crime, as well as the time, place,
and types of victims typically chosen by the perpetrator.” Id.
Generally, the trial court also must look at additional balancing factors,
including remoteness and potential for prejudice. Id. When considering
remoteness, if the details of the crimes are “nearly identical,” the court may
excuse a lapse of time unless it is “excessive.” Id. When considering potential
prejudice, the court must examine: 1) the degree of similarity between the
crimes; 2) the Commonwealth's need to present evidence; and 3) the ability
of the trial court to caution the jury concerning the proper use of such evidence
in their deliberations. Id.; see also Commonwealth v. Dillon, 921 A.2d
131, 141 (Pa. 2007) (noting that unfair prejudice is 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).
Relevant to our analysis herein, this Court previously has noted that:
[t]he essential elements of the act of rape, as well as other sexual
crimes, will necessarily produce any number of similar
characteristics when two acts of rape are scrutinized for shared
features, particularly where, as we have here seen, there is
commonality of roles and situs attendant the criminal episodes.
Commonwealth v. Frank, 577 A.2d 609, 614 (Pa.Super. 1990). Due to
these “similar characteristics,” our courts also have considered additional
qualities to determine substantial similarity under the unique facts and
circumstances of each case , including: the race, age, and sex of the victims;
the time of day of the crime; the proximity to the defendant's home and
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between the crime scenes and; the manner and location to which the victim
was taken. Id. at 614–15. For example, in Tyson, supra, this Court
remarked that the similarities among the allegations were substantial,
including that: 1) the defendant was acquainted with both victims; 2) the
victims were of the same age and race; 3) the defendant was an invited guest
in each victim's home; 4) the defendant assaulted the victims while they were
in a weakened state; 5) each victim lost consciousness; 6) each victim woke
in her bedroom early in the morning to find the defendant having vaginal
intercourse with her. Id. at 360. Thus, the panel concluded that the evidence
should be admissible to show that the defendant had a common scheme of
nonconsensual intercourse with unconscious victims. Id. at 361.
Herein, Appellant contends he did not receive a fair trial as the
prejudicial effect of S.W.’s testimony exceeded its probative value because
her allegations of abuse bore little resemblance to those of N.P. Brief for
Appellant at 16-21. He further maintains the sole purpose for S.W.’s
testimony was to establish Appellant’s “bad character” or “propensity for
committing criminal acts.” Id. at 15, 20. Appellant stresses he had not been
prosecuted for his alleged assaults against his daughter S.W. and that, in fact,
a DHS report indicated S.W. recanted allegations she had made to a DHS
caseworker. Id. at 15, 19-20. As a result, Appellant asserts “it was
impossible for the jury to be fair and impartial.” Id. at 20.
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In support of its decision to grant the Commonwealth’s motion, the trial
court reasoned as follows:
In the case at bar, the similarities between the incidents
involving S.W. and N.P. are striking and clearly demonstrate the
Appellant’s common scheme, In both cases, there was an
extended pattern of abuse. The incidents involving N.P. began
when she was five years old, continued for three years,
temporarily ceased when the Appellant moved away, and began
again when he moved back into her home. (N.T. 10/24/18 at 24-
26, 29-32). The incidents involving S.W. began when she was
twelve, continued for two years, and stopped when the Appellant
moved into his home on [ ]. The victims were also similar in age;
although the Appellant’s abuse of N.P. started when she was five
years old, the Appellant abused both victims when they were
between the ages of eleven and twelve. (Id. at 29-30, 109;
Comm. Mot. at 3). The Appellant abused both victims in his living
room and bedroom in his [ ] home. (N.T. 10/24/18 at 24, Com.
Mot. At 3). Both victims were African American and female.
(Comm. Mot. At 9). There also is a congruous role between the
Appellant and both victims. Specifically, the Appellant is a
stepfather or biological father to both victims, and the Appellant
was acting within a guardian capacity when he abused each of
them. (N.T. 10/24/18 at 22, 25, 107; Comm. Mot. At 3,9).
Further, the acts committed against the victims are similar. Both
victims testified that the Appellant’s initial episodes of abuse
involved the Appellant rubbing and digitally penetrating their
vagina. (N.T. 10/24/18, at 23 109; Comm. Mot. at 1). Both
victims testified that they resisted the Appellant, cried, screamed,
or told him to stop, but he continued his abuse despite their pleas.
(N.T. 10/24/18, at 30, 110; Comm. Mot. At 3).
Accordingly this court found that the incidents were
sufficiently similar and, therefore, slightly probative of Appellant’s
common scheme to isolate and sexually abuse young girls in his
care. . . .
Trial Court Opinion, 9/6/19 at 7, 10-11. We find the trial court did not abuse
its discretion in reaching this result.
In Aikens, supra, the this Court held the trial court had properly
admitted evidence that Aikens had sexually abused his biological daughter,
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V.B., as proof of his common scheme, plan, or design to abuse a second
biological daughter, T.S. In doing so, we observed the “fact pattern involved
in the two incidents was markedly similar.” Id. at 1185–86. The victims were
the same age at the time of the abuse (V.B was 14 and T .S. was 15). Id. at
1182–83, 1185–86. In addition, Aikens initiated the sexual abuse while the
victims were staying in his apartment; he showed pornographic movies to the
victims, the assaults occurred at night in Aikens’ bed, and he mimicked sexual
intercourse to gratify himself. Id. at 1185–86. We found that “[t]hese
matching characteristics elevate the incidents into a unique pattern that
distinguishes them from a typical or routine child-abuse factual pattern.” Id.
at 1186 (emphasis added).
Like Aikens, the matter sub judice involves a pattern of abuse of two,
young African American females that is markedly alike. N.P. and S.W. had
similar relationships with Appellant, a stepdaughter and a biological daughter,
respectively. Each was approximately the same age when she was abused by
Appellant at the identical location, his home. Appellant used the same method
of mauling and digitally penetrating the girls when N.B.’s mother was not at
home. These matching characteristics are not insignificant details; they
elevate the incidents into a unique pattern that distinguishes them from
another child-abuse factual pattern. See Commonwealth v. Hughes, 521
Pa. 423, 555 A.2d 1264 (1989) (evidence about prior rape correctly allowed
at rape-murder trial since crimes were committed in similar geographic
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location, at similar time, characteristics of victim matched, and defendant
used same method of attack). Since the crimes were comparable, the
probative value of the evidence of S.W.’s abuse outweighed its prejudicial
impact. Thus, the trial court did not err when it allowed the Commonwealth
to present the prior bad act evidence. Pa.R.E. 404(b)(2).
Moreover, when delivering its final instruction to the jury, the trial court
included the following cautionary instruction about S.W.’s testimony:
You have heard evidence tending to prove that [Appellant] was
guilty of improper conduct with [S.W.], for which he is not on trial.
I am speaking of the testimony to the fact that he had on multiple
occasions penetrated her vagina with his fingers and touched her
breast when she was 12-years-old. This evidence is before you
for a limited purpose, that is, for the purpose of tending to show
motive and intent, state of mind, common, scheme, or plan, and
to rebut any claim of mistake or any inference of fabrication. This
evidence must not be considered by you in a way other than for
the purpose I just stated. You must not regard this evidence as
showing that [Appellant] is a person of bad character or criminal
tendency from which you might be inclined to infer guilt.
N.T., 10/25/18, at 55-56.
In so instructing the jury, the trial court ameliorated any prejudice by
informing it that the other crimes evidence was admissible for the limited and
narrow purpose of determining Appellant's motive and intent and to rebut any
claim of mistake or inference of fabrication. The court cautioned the jury not
to regard the evidence as showing that Appellant was a person of bad
character or of criminal tendencies. A jury is presumed to have followed the
trial court’s instructions on the applicable law. Commonwealth v. Harris,
817 A.2d 1033, 1053 (Pa. 2002). Thus, in light of the facts herein, “the
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probative value of the evidence to the Commonwealth's largely circumstantial
case clearly outweighed any unfair prejudicial effect, which was properly
limited by the trial court's cautionary instructions to the jury.”
Commonwealth v. Hicks, 156 A.3d 1114, 1129 (Pa. 2017).
Judgment of Sentence Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/20
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