Com. v. Roman-Rosa, H. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HECTOR LUIS ROMAN-ROSA :
:
Appellant : No. 111 MDA 2023
Appeal from the Judgment of Sentence Entered December 13, 2022
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0000218-2021
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED: DECEMBER 6, 2023
Appellant, Hector Luis Roman-Rosa, appeals from the aggregate
judgment of sentence of 20 to 50 years of incarceration, and a consecutive
period of seven years’ probation, imposed following his convictions for, inter
alia, raping K.R., a minor. Appellant primarily challenges the trial court’s
denial of his motion to sever charges concerning a separate minor victim, Y.C.
We agree that the trial court abused its discretion in failing to sever the
charges, as the evidence concerning each victim would be inadmissible in a
trial for the other pursuant to Pennsylvania Rule of Evidence 404(b). However,
we conclude that the error was harmless beyond a reasonable doubt. We
further conclude that the weight of the evidence supported the verdict, and
therefore affirm the judgment of sentence.
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* Former Justice specially assigned to the Superior Court.
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K.R. was born in July of 2006. Her mother, M.R., began dating Appellant
sometime in 2008. Appellant lived with M.R. and her children. K.R. testified
that the abuse began when she was three or four years old. She recalled that
Appellant “took me out of my crib, placed me on the floor, took off my clothes,
and started touching me.” N.T., 4/21/22, at 32. In that incident, Appellant
touched her vagina with his hands. She recalled another incident where
Appellant rubbed his penis against her vagina. Around age five or six,
Appellant progressed to vaginal penetration. He would use his hands to pin
K.R.’s arms to the side or above her head.
Appellant and M.R. broke up in 2015. Appellant asked M.R. to allow
K.R. to visit, which she agreed to because K.R. viewed Appellant as her
stepfather. At his residence, Appellant would direct K.R. to insert a vibrator
into her vagina. K.R. eventually disclosed the abuse to a friend, which led to
authorities investigating.
The second victim, Y.C., was also born in 2006. Her mother, J.G., began
dating Appellant sometime after Appellant and M.R. separated. Y.C. testified
that Appellant sexually touched her one evening while she, J.G., and Appellant
slept in the same bed. The three slept together on occasion because J.G. had
sleep apnea and Y.C. “wanted to make sure [J.G.] was breathing right.” Id.
at 74. Y.C. testified that, at some point one evening, Appellant “went under
my shirt and then my bra and then touched me.” Id. at 75. She could not
recall when the incident occurred or how long it lasted. She testified that this
was the only incident.
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Appellant was acquitted of the two charges pertaining to Y.C. He was
convicted of all counts concerning K.R., with the exception of one count of
involuntary deviate sexual intercourse. The trial court imposed the aggregate
judgment of sentence as specified above, and denied Appellant’s post-
sentence motions for relief. Appellant filed a timely notice of appeal and
complied with the trial court’s order to file a Pa.R.A.P. 1925(b) statement. The
trial court subsequently issued a Rule 1925(a) opinion, and we now review
Appellant’s two claims:
1. Whether the trial court erred in approving consolidation of the
two cases for trial in one proceeding, because the evidence failed
to establish a common plan, there were significant differences
between the two alleged courses of conduct, there was a
significant difference in age and development between the two
complaining witnesses, evidence of each event would not have
been admissible at trial for the other, and the evidence of each
was therefore only proof of propensity to commit this type of
crime?
2. Whether the verdict resulting in [Appellant]’s convictions was
against the weight of the evidence as the complainant testified
that she was frequently beaten by Appellant and that resulted in
marks on her body, when her mother testified that she bathed her
child and never saw marks on her child and never saw Appellant
hit her?
Appellant’s Brief at 9.
I.
Severance
Appellant’s first issue addresses the trial court’s denial of his motion to
sever the charges concerning Y.C. from those relating to K.R. Whether joint
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trials are appropriate is governed by Rules of Criminal Procedure 582 and 583.
Rule 582 provides the standards for trying cases together:
(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. 582.1 Rule 583 permits a court to “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. “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. Johnson, 236 A.3d
1141, 1150 (Pa. Super. 2020) (citation omitted). “Whether 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
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1 The rule addresses offenses charged in separate instruments whereas, here,
the charges were all filed in one criminal information. The charges were filed
together because Y.C.’s disclosure was prompted by the authorities’ speaking
to Appellant, who still resided with Y.C.’s mother, during their investigation of
K.R.’s allegations. Nevertheless, the parties agree that Rule 582 applies in
this situation.
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the defendant.” Commonwealth v. Knoble, 188 A.3d 1199, 1205 (Pa.
Super. 2018) (citation omitted).
Appellant filed a pre-trial omnibus motion, which included a motion to
sever. Appellant argued that the charges concerning each victim should be
prosecuted in separate trials because the incidents were completely dissimilar,
as K.R. was prepubescent on the relevant incident dates, while Y.C. was an
adolescent. Additionally, the Y.C. incident occurred approximately four to six
years after the abuse against K.R. ended. Appellant argued that he would be
prejudiced by a joint trial as the jury would “infer criminal disposition … [by]
accumulating evidence of various offenses and finding guilt when, if
considered separately, it would not so find.” Motion, 3/18/21, at unnumbered
2.
The trial court held a hearing on Appellant’s motion, and Appellant raised
the same points previously stated. The Commonwealth argued that, when
Appellant “had an opportunity, he started the same grooming process by
touching the victim’s breasts.” N.T. Motions Hearing, 9/28/21, at 43. The
Commonwealth contended that this abuse did not proceed beyond the one
incident only because Y.C. “moved out approximately three months after this
incident, and moved in with her father[,] … preventing [Appellant] from having
contact or the ability to continue to sexually abuse her.” Id. The
Commonwealth asked the trial court to “look at the relevant case law out there
regarding what can be admissible as signature and/or modus operandi crimes
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for purposes of introducing and permitting these charges to be tried together.”
Id. Ultimately, the trial court denied Appellant’s motion to sever.
In its Rule 1925(a) opinion, the trial court defends the ruling while
suggesting that the Commonwealth had an ulterior motive of using the case
against K.R. to bolster the comparatively weaker case against Y.C.:
In making the severance determination, the court considered
whether the evidence of each of the offenses would be admissible
in a separate trial for the other; whether such evidence is capable
of separation by the jury so as to avoid danger of confusion; and
… the potential for undue prejudice from the consolidation.
....
The [c]ourt considered the potential prejudice to [Appellant] in
making its decision and considered the likelihood of accumulating
evidence to find guilt in each case where[,] if considered
separately, a jury may be unlikely to so find. However, the
testimony of each girl would have been admissible in each other’s
trials because the grooming of Y.C. began in the same way as that
of K.R. In each case, the child was not the daughter of [Appellant]
but that [sic] child of his then[-]current girlfriend. Because of the
age difference of each victim, the fact that the incident with Y.C.
occurred only once, and the fact that K.R. considered [Appellant]
to be her father at the time, as well as the difference in the
severity of the alleged abuse, there was no danger of confusion in
the testimony. Although it appears that the Commonwealth was
attempting to bootstrap the weaker case against Y.C. with the
stronger case of K.R., it was unsuccessful as [Appellant] was
acquitted of the charges concerning Y.C. There was no prejudice
to [Appellant].
Trial Court Opinion (“TCO”), 3/2/23, at 9-10 (citations omitted).
On appeal, Appellant reiterates his fundamental argument that the
incidents are factually dissimilar. In terms of the law applicable to severance,
Appellant maintains that evidence about the Y.C. incident would not have been
admissible in a separate trial concerning K.R., and vice versa. Appellant cites
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Pennsylvania Rule of Evidence 404(b), arguing that evidence of the other
incidents would be barred by that rule because of the dissimilar nature of the
allegations. Additionally, addressing the trial court’s assertion that Appellant
identically groomed both victims, Appellant points out that K.R. testified that
the abuse began when she was three, with Appellant’s undressing her and
touching her vagina, and Appellant proceeded to forcible intercourse by the
time K.R. was five or six. In contrast, Y.C. was a teenager, and Appellant did
not remove her clothes. Appellant also allegedly abused Y.C. only one time,
and Y.C. stated that his abuse was limited to fondling her breasts. Because
these incidents were so dissimilar, Appellant asserts that the Commonwealth
introduced the evidence only to show propensity, i.e., that Appellant had a
habit of sexual abuse. Because evidence that bears only upon propensity
would be barred by Rule 404(b), Appellant asks this Court to conclude that
the evidence concerning one victim would not be admissible in a trial focused
on the remaining victim.
As to what effect this Court should give to the acquittal on the two
counts involving Y.C., Appellant submits that the jury was undoubtedly
persuaded by Y.C.’s testimony in terms of assessing K.R.’s credibility.
Appellant points out inconsistencies in K.R.’s testimony, and argues that “the
very act of being able to compare her testimony with Y.C.” made the jury
more likely to believe K.R. Appellant argues that “no crime … has the same
stigma as child molestation,” and “[t]he urge to protect vulnerable children is
hard-wired into most adults.” Appellant’s Brief at 27. Appellant avers that
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the Commonwealth deliberately played into this urge by trying the cases
jointly. He claims that “the only possible reason to join these cases was for
the repugnant taint of the criminality of child molestation to taint the jury’s
view of Appellant and to erroneously convince them that ‘where there is
smoke, there is fire.’” Id.The Commonwealth responds that the evidence concerning each victim
would be admissible under Rule 404(b) in a trial concerning the other had the
cases been severed. Thus, judicial economy warranted trying the cases
together. It elaborates:
[T]he evidence demonstrated that [Appellant] cohabitated with
women who had minor daughters. He began grooming the girls
by engaging in non-consensual touching of their intimate parts,
and while Y.C. was able to stop further sexual assaults, K.R. was
unfortunately unable to do so. These activities demonstrated
[Appellant]’s motive, intent, absence of mistake and common plan
or scheme of committing these crimes, and thus would have been
admissible in separate trials pursuant to Pa.R.Crim.P. [sic] 404(b).
Additionally, the offenses were sufficiently dissimilar to avoid any
danger of confusion by the jury.
Commonwealth’s Brief at 10. The Commonwealth also argues that Appellant
“cannot demonstrate prejudice resulting from the denial of his severance
motion, as he was acquitted of all charges involving Y.C. This acquittal further
demonstrates the jury’s ability to separate the charges regarding the two
victims.” Id.(i)
The trial court erred in denying Appellant’s motion to sever
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As the parties’ arguments recognize, the severance question is
essentially a Rule 404(b) question, as the Commonwealth’s ability to
consolidate the cases for trial is just another way of asking whether the
Commonwealth would be able to introduce the evidence of the other allegation
if the cases were severed. Cases discussing severance often address whether
the evidence would have been admissible under Rule 404(b):
Pennsylvania Rule of Criminal Procedure 582 provides that joinder
of offenses charged in separate indictments or informations is
permitted when “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)(a). While evidence of other criminal
behavior is not admissible to show a defendant’s propensity to
commit crimes, such evidence “may be admitted for other
purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of mistake or
accident” so long as the “probative value of the evidence
outweighs its prejudicial effect.” Pa.R.E. 404(b)(2), (3).
Commonwealth v. Johnson, 179 A.3d 1105, 1115–16 (Pa. Super. 2018).
Therefore, we agree as an initial matter that we may analyze this case
by reference to Rule 404(b) precedents. Accordingly, the question is whether
evidence concerning the other victim would have been barred under Rule
404(b) had the charges been separately tried. We conclude that the evidence
would be inadmissible.
The text of Rule 404(b) codifies the common law recognition that
propensity evidence is powerfully relevant and prejudicial. As stated in
Shaffner v. Commonwealth, 72 Pa. 60, 65 (Pa. 1872), “[i]t is not proper to
raise a presumption of guilt, on the ground, that having committed one crime,
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the depravity it exhibits makes it likely he would commit another.” Appellant’s
core argument is that the Commonwealth attempted to raise a presumption
of guilt by presenting testimony of two victims, thereby inviting the jury to
conclude that Appellant has a predilection for criminal behavior. The
Commonwealth, on the other hand, views the evidence as admissible for a
non-propensity purpose. Rule 404(b) includes a list of non-exclusive
exceptions for the introduction of other act evidence for “another purpose,
such as proving motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” Pa.R.E. 404(b)(2). If this
argument is correct, then the evidence was introduced for a proper purpose,
and not to show that Appellant had a propensity for sexual abuse. If so, we
would ask whether “the probative value of the evidence outweighs its potential
for unfair prejudice.” Id.The Commonwealth invokes several possibilities recognized by Rule
404(b) precedents: “motive, intent, absence of mistake, and common plan or
scheme of committing these crimes[.]” Commonwealth’s Brief at 10. The
Commonwealth offers no elaboration on the details, but as we may affirm the
trial court’s ruling on any basis supported by the record, we explore each
possibility. Commonwealth v. Harper, 611 A.2d 1211, 1213 n.11 (Pa.
Super. 1992).
Beginning with “motive,” this is not a case where that is in question in
the sense of determining whether Appellant had a reason for committing the
acts beyond sexual gratification. The “motive” theory generally applies in a
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case where the crimes at issue “grew out of or was in some way caused” by
the other evidence. Commonwealth v. Cascardo, 981 A.2d 245, 251 (Pa.
Super. 2009) (citation omitted). For example, in Commonwealth v. Martin,
387 A.2d 835 (Pa. 1978), the Commonwealth introduced evidence that Martin
and some other individuals attempted to rob Anthony Brothers. During the
attempted robbery, a man named Kent intervened and struck Martin with a
chair. Kent was killed thirteen days later. Our Supreme Court held that the
evidence of the robbery was admissible as it supplied a potential motive for
the killing of Kent:
As a general rule, evidence that a defendant has committed
another crime wholly independent and unconnected with that for
which he is on trial is irrelevant and inadmissible except under
special circumstances. One of the special circumstances which
operates as an exception to the general rule is the case where the
proffered testimony tends to establish the defendant’s motive for
the crime or crimes charged in the indictment on trial. However,
to be admissible under this 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.
Id. at 838 (quotation marks and citations omitted).
Here, the incidents are independent and unconnected in terms of a
motive as the crimes do not grow out of each other. Nothing about the abuse
of K.R. would explain or be linked to the abuse of Y.C. Commonwealth v.
Bidwell, 195 A.3d 610, 626 (Pa. Super. 2018) (“[W]hile there were some
similarities between the prior bad acts testimony the Commonwealth seeks to
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present at trial and [the a]ppellee’s behavior toward the [v]ictim, the proffered
testimony does not establish a motive for the murder of the [v]ictim.”).2
Next, absence of mistake is not relevant to this case. In comparison,
consider Commonwealth v. Gilliam, 249 A.3d 257 (Pa. Super. 2021). In
that case, the defendant, a masseuse, was on trial for sexually touching two
female clients during massages. The Commonwealth was permitted to call
four additional clients who testified that the defendant similarly exceeded the
bounds of a normal massage. While the victims did not share an identical
profile, the pattern of abuse was similar:
[W]ith each client, [the defendant] eventually deviated from the
usual professional massages and worked his way further up the
leg until he touched their vaginas. Although the complaints were
made by women of different ages and races, all complaints were
filed by female clients and they all involved at least one
professional and appropriate massage before [the defendant]
worked his way up the leg too far. The court finds these situations
are substantially similar such that they may indicate a common
plan and/or lack of mistake.
Id. at 273 (citation omitted).
The potential “mistake” in that case was that the defendant
inadvertently touched the victim’s vagina during an otherwise normal
massage. Proof that the defendant touched several other women’s vaginas
during their massages would be relevant to show that the conduct was not
____________________________________________
2 The only real link between the incidents is that Y.C.’s allegations were
apparently prompted by the investigation into K.R.’s allegations. If Appellant
had made that aspect relevant in a case limited to the charges against Y.C.,
e.g., by suggesting that Y.C. was not credible due to delayed reporting, then
perhaps that would “open the door” to evidence about K.R.
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accidental and thus had a non-propensity purpose. Here, nothing about these
incidents suggested that Appellant’s behavior could plausibly be perceived as
“accidental” as he obviously had no legitimate reason for touching these
victims. See Commonwealth v. Ross, 57 A.3d 85, 101 (Pa. Super. 2012)
(holding that trial court erred in allowing bad acts testimony from other
women whom the defendant had abused in trial of first-degree murder as
relevant to motive and/or intent; “We disagree that intent was at issue here.
… Given the circumstances surrounding Miller’s murder, including the
mutilation of the body, the use of duct tape, and the bite mark on her breast,
there can be no question that this was an intentional killing.”).
That leaves the Commonwealth’s reference to “common plan or
scheme.”3 As we recently stated in the unpublished memorandum decision
Commonwealth v. Cope, 2023 WL 5321091, at *4 (Pa. Super. filed Aug. 18,
2023), “[t]he degree of similarity required when admitting evidence of other
acts that are similar to the crimes alleged is a difficult question.” 4 To the
extent that the “common plan” exception encompasses similarities that fall
short of a “virtual signature,” we conclude that the commonalities of these
crimes are so minimal that they cannot qualify as a “common plan.”
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3 This exception to Rule 404(b) is often described as “common plan, scheme,
or design.” For ease of reference, we will use the phrase “common plan.”
4 Rule of Appellate Procedure 126(b)(1) states that non-precedential
memorandum decisions from the Superior Court filed after May 1, 2019, may
be cited for their persuasive value.
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To illustrate, in Commonwealth v. Patterson, 399 A.2d 123 (Pa.
1979), the Commonwealth prosecuted Patterson for rape. The victim had
been raped at approximately 2:30 a.m. near 47th Street in Philadelphia. The
victim testified that a man “grabbed her by the mouth with his left hand and
held an ice pick to her throat. He said: ‘… don't scream,’ and asked how much
money she had. She responded: ‘five dollars,’ and he then walked her through
an alley and into a garage.” Id. at 125 (ellipsis in original). The man then
“raped her, choked her until she blacked out, stole the five dollars from her,
and tied her hands before leaving the garage.” Id. The trial court permitted
the Commonwealth to introduce the testimony of another woman who had
also been raped near 47th Street at approximately 2:30 a.m. about five days
later, for purposes of establishing identity. This victim testified that a man,
whom she identified as Patterson, told her, “[d]on’t scream,” and forced her
at gunpoint to an alley. Id. at 126. The victim asked to be taken to a hotel,
hoping to find help along the way. The man then took her to his apartment,
where he raped her.
Our Supreme Court held that a new trial was required, on the basis that
the incidents were so dissimilar that no “logical connection” was present. Id.
at 127. The victims were of different ages, the weapons were not identical,
and the first rape involved a robbery, choking, and tying up the victim whereas
the second did not. Even when measured against the similar location and
offense times, the dissimilarities between the incidents required excluding the
testimony. See id. at 127 (“Because of the dissimilarities, we are not
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persuaded a nearly identical method or a common scheme, plan, or design
was established.”).
The similarities in this case are far weaker than those in Patterson.
The only real similarity cited by the Commonwealth is that each victim was
the daughter of Appellant’s girlfriend.5 In all other respects, the incidents
differ. First, the victims were of quite different ages, which is a relevant factor.
See id. (noting that the victims were of totally different ages);
Commonwealth v. Fortune, 346 A.2d 783, 787 (Pa. 1975) (“The victim …
was older and larger than the ‘little boys’ or little kids’ who were the victims
of the other incidents.”). K.R. was three or four years old when Appellant
began his years-long sexual abuse, whereas Y.C. was a teenager and testified
that only one act of abuse occurred.
Different “methods” of abuse were also involved. On this point, our
decision in Commonwealth v. Luktisch, 680 A.2d 877 (Pa. Super. 1996),
which involved sexual crimes against children, is instructive. The defendant
was on trial for raping his eleven-year-old stepdaughter, and the trial court
permitted the Commonwealth to introduce other act evidence from the
defendant’s biological daughter. That witness was 29 years old at the time of
her testimony, but was between 5 and 8 when the abuse started. The
defendant’s claim on appeal was limited to the remoteness issue. We stated
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5 The Commonwealth, like the trial court, also offers that Appellant identically
“groomed” both victims. As explained infra, this conclusion does not
withstand scrutiny.
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that the relevance of how much time has passed is “inversely proportional to
the similarity of the crimes in question.” Id. at 879 (quoting Commonwealth
v. Miller, 664 A.2d 1310, 1319 (Pa. 1995)). We determined that the abuse
against all the victims was “nearly identical.” Id. The “acts committed … were
strikingly similar. The three victims[6] were near the same age when [the
defendant] molested them; they all had the relationship of daughter or
stepdaughter to [the defendant]; all three were living with [the defendant]
when the acts occurred; and the nature of the acts were almost identical.”
Id. (citation omitted). With respect to the “nature of the acts,” the trial court
opinion noted that the “progression … was similar; improper touching first,
then oral sex, then sexual intercourse.” Id. (citation omitted). We agreed
that “the pattern of molestation committed upon [the defendant’s] young
victims was so distinct” as to justify its admission. Id.As we discussed in Cope, whether a “common plan” theory of admission
requires a high degree of similarity is an issue that is arguably in a state of
flux in this Commonwealth. See generally Cope, 2023 WL 5321091, at *5-
6. In any event, the only real similarity in these crimes is the victim being the
daughter of Appellant’s girlfriend, which is more akin to an insignificant detail
common to many offenders who sexually abuse their victims. In fact, the
Commonwealth essentially concedes that the method and patterns of abuse
were not identical by arguing that the incidents would have progressed beyond
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6 A second stepdaughter also testified against the defendant.
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fondling had Y.C. not left the home. Setting aside the fact that this
hypothetical pattern of abuse would still be quite dissimilar given the victims’
ages, the fact remains that no similar “pattern of molestation” occurred in this
case. There is very little commonality between the two sets of crimes beyond
the fact that Appellant targeted his girlfriends’ daughters. That fact alone
cannot suffice to establish a common plan. In Commonwealth v. Cosby,
224 A.3d 372 (Pa. Super. 2019), vacated on other grounds, 252 A.3d 1092(Pa. 2021), we agreed that “a criminal ‘plan’ may be analogized to a script or
playbook of criminal tactics that worked for the offender when committing
past crimes.” Id. at 402 (citation omitted). We observed that “[i]t is the
pattern itself, and not the mere presence of some inconsistencies between the
various assaults, that determines admissibility under these exceptions.” Id.
There is no “script or playbook” in this case beyond the fact that
Appellant abused girls to whom he had access by virtue of dating their
mothers. That is, in our view, a rather insignificant detail that is not specific
enough to Appellant’s own patterns or conduct. “[A] court must necessarily
look for similarities in a number of factors when comparing the methods and
circumstances of other crimes sought to be introduced through Rule 404(b)….
Similarities cannot be confined to insignificant details that would likely be
common elements regardless of the individual committing the crime.”
Commonwealth v. Bidwell, 195 A.3d 610, 618–19 (Pa. Super. 2018)
(citation omitted).
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Having rejected the Commonwealth’s cited theories of admissibility, and
finding that no other recognized Rule 404(b) exception would permit the
admission of this evidence, we conclude that the trial court erred by failing to
grant severance.
(ii)
The error does not warrant a new trial
We now turn to the effect of the error. We conclude that this poses a
close call, especially given the role of credibility in these types of cases.
Commonwealth v. McDonough, 96 A.3d 1067, 1069 (Pa. Super. 2014)
(“The uncorroborated testimony of a sexual assault victim, if believed by the
trier of fact, is sufficient to convict a defendant.”) (citation omitted). Thus,
we agree with Appellant that there is a risk that the jury was persuaded that
Y.C.’s testimony bolstered the credibility of K.R. However, we ultimately agree
with the Commonwealth that the error was harmless beyond a reasonable
doubt, based primarily on the fact that the jury acquitted Appellant of all
charges involving Y.C.
Briefly, we note that we view this error as involving the Commonwealth’s
burden to establish that the error was not harmless beyond a reasonable
doubt. The Commonwealth’s brief claims that Appellant failed to show
prejudice by virtue of the jury’s acquittal, suggesting that Appellant bears the
burden on appeal. We disagree. A showing of prejudice is simply one of the
three factors a trial court must consider when faced with a request to sever.
When a defendant moves for severance of charges “not based on the same
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act or transaction, the court must determine whether [1] evidence of the
distinct offenses would be admissible in a separate trial for the other; [2]
whether such evidence can easily be separated by the jury so as to avoid
confusion; and [3] whether the defendant will be unduly prejudiced by the
consolidation.” Commonwealth v. Newman, 598 A.2d 275, 278 (Pa. 1991).
Here, the trial court erred at the first step per our Rule 404(b) analysis. Thus,
Appellant was not required to show that he was prejudiced by the
consolidation with respect to whether the initial ruling was erroneous.
The question thus becomes whether the error automatically entitles
Appellant to relief. We have not discovered a case directly on point in
Pennsylvania, but federal law holds that the harmless error doctrine applies
when cases are erroneously tried together. The United States Court of
Appeals for the Fourth Circuit summarizes the law as follows:
If the initial joinder was not proper, … we review this non[-]
constitutional error for harmlessness, and reverse unless the
misjoinder resulted in no “actual prejudice” to the defendants
“because it had [no] substantial and injurious effect or influence
in determining the jury's verdict.” [United States v.] Lane, 474
U.S. [438,] 449 … [(1986)] (internal quotation marks omitted).
The Government, of course, bears the burden of showing that the
error was harmless.
United States v. Mackins, 315 F.3d 399, 412 (4th Cir. 2003) (footnote
omitted; first bracketing in original). In the cited Lane case, the United States
Supreme Court rejected the argument that misjoinder is prejudicial per se, in
part because the case “for applying harmless-error analysis is even stronger
because the specific joinder standards of [federal Rule of Criminal Procedure
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8] are not themselves of constitutional magnitude.” Lane, 474 U.S. at 446.
We agree that this approach is appropriate, and we apply the same standard
for harmless-error analysis regardless of whether the error was constitutional
or not. Commonwealth v. Story, 383 A.2d 155, 162 (Pa. 1978).
Furthermore, our Supreme Court affirmed in Commonwealth v. Hamlett,
234 A.3d 486, 488 (Pa. 2020), that this Court may invoke harmless error sua
sponte.
Presently, the Commonwealth has cited the jury’s acquittal of all counts
concerning Y.C. as the basis for finding no prejudice. However, the
Commonwealth has mistakenly concluded that Appellant bore the burden to
show that he was prejudiced. We thus make clear that, while we agree with
the Commonwealth’s specific reasons for why Appellant was not prejudiced,
we view those claims through the harmless-error framework, which requires
that the Commonwealth establish that the error be deemed harmless beyond
a reasonable doubt:
Harmless error exists if the record demonstrates either: (1)
the error did not prejudice the defendant or the prejudice
was de minimis; or (2) the erroneously admitted evidence
was merely cumulative of other untainted evidence which
was substantially similar to the erroneously admitted
evidence; or (3) the properly admitted and uncontradicted
evidence of guilt was so overwhelming and the prejudicial
effect of the error was so insignificant by comparison that
the error could not have contributed to the verdict.
Commonwealth v. Hairston, 84 A.3d 657, 671–72 (Pa. 2014) (citations
omitted).
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The fact that credibility is paramount in sexual abuse cases renders it
virtually impossible for this Court to state that the evidence of guilt was so
overwhelming, as this would entail an evaluation of K.R.’s credibility. Nor was
the respective testimony cumulative. That leaves the first variety of harmless
error. We agree with the Commonwealth that the jury’s acquittal of all
charges showed, in terms of the severance inquiry, that the jury
compartmentalized the charges, which in turn establishes the lack of
prejudice. In the related context of assessing the impact of erroneously
admitted evidence, if that evidence was relevant only to certain charges and
the jury acquits on those charges, then the error was harmless:
The doctrine of “harmless error” is a technique of appellate review
designed to advance judicial economy by obviating the necessity
for retrial where the appellate court is convinced that the trial
error was harmless beyond a reasonable doubt, and its purpose is
premised upon the well-established proposition that the defendant
is entitled to a fair trial but not a perfect one. The burden of
establishing that error was harmless beyond a reasonable doubt
rests with the Commonwealth. Error is harmless if the
Commonwealth has proven beyond a reasonable doubt that there
is no reasonable probability that the error contributed to the
verdict.
An error in the admission or exclusion of evidence requires a
reversal unless the Commonwealth establishes that the error was
harmless beyond a reasonable doubt. However, where the
evidence which was improperly admitted or excluded is relevant
only to charges of which defendant was ultimately acquitted[,] any
error in admitting or excluding such evidence is harmless.
Commonwealth v. Wood, 637 A.2d 1335, 1351 (Pa. Super. 1994) (citations
omitted).
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Similarly, the fact that the jury acquitted Appellant of the charges
concerning Y.C. suggests that the error was harmless beyond a reasonable
doubt. Appellant’s point that the jury may have considered Y.C.’s testimony
in weighing K.R.’s testimony is a strong one, and Wood is addressing
erroneously-admitted evidence pertinent to specific charges and does not
necessarily address “spill over” prejudice of this kind. We conclude that this
presents a close call but are ultimately persuaded that the error was harmless
beyond a reasonable doubt.
Logically, a conclusion that Appellant had a propensity for sexually
abusing young women would lead the jury to find Appellant guilty of all counts.
This is not an iron-clad proposition, as it is well-settled that inconsistent
verdicts are permitted because it is the jury’s “sole prerogative to decide on
which counts to convict in order to provide a defendant with sufficient
punishment.” Commonwealth v. Miller, 657 A.2d 946, 948 (Pa. Super.
1995) (citation omitted). But, here, the jury did not return inconsistent
verdicts. The jury rejected Y.C.’s testimony in total by finding Appellant not
guilty of both charges, which indicates that the jury did not believe Y.C.’s
testimony, and that it also did not allow its assessment of K.R.’s testimony to
color its consideration of the charges specific to Y.C. An inconsistent verdict
issue arises when the jury’s verdict cannot be legally squared. See, e.g.,
Commonwealth v. Peer, 684 A.2d 1077, 1081 (Pa. Super. 1996)
(determining that the jury’s acquittal of lesser included offense did not
preclude conviction of the greater offense). Here, the jury’s verdict is logically
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and legally consistent, as it indicates that the jury simply did not believe Y.C.’s
testimony whereas it believed K.R.7
In this regard, the jury’s acquittal arguably provided Appellant with
greater protections than a typical Rule 404(b) scenario, where the jury may
or may not be informed that a defendant has been previously convicted of
some crime. In Patterson, supra, our Supreme Court ordered a new trial
due to the trial court’s allowing the Commonwealth to introduce evidence of a
subsequent rape. There, however, Patterson was not jointly prosecuted for
the crime, and the jury was apparently not informed that he had been
convicted of the crime, as the Court’s opinion indicates only that she identified
Patterson as her attacker.8 This is not uncommon, as jurors are typically
instructed that Rule 404(b) evidence may not be used as substantive evidence
of guilt. In this case, the “Rule 404(b) evidence” was submitted to the jury in
the form of actual criminal charges. Thus, the jury was specifically asked to
____________________________________________
7 We conclude that Y.C.’s testimony, if credited by the jury, would have
sufficed to establish the elements of at least one of the two charges. Appellant
was charged with one count of indecent assault, 18 Pa.C.S. § 3126(a)(8),
which criminalizes “indecent contact … for the purpose of arousing sexual
desire in the person or the complainant and … the complainant is less than 16
years of age and the person is four or more years older than the complainant
and the complainant and the person are not married to each other.” “Indecent
contact” is defined as “[a]ny touching of the sexual or other intimate parts of
the person for the purpose of arousing or gratifying sexual desire, in any
person,” CITE? and Y.C. testified that Appellant touched her breasts and
played with her nipples with his fingers.
8 The dissenting opinion by Judge Hoffman in the Superior Court noted that
Patterson had pleaded guilty to that rape. Commonwealth v. Patterson,
372 A.2d 7, 9 (Pa. Super. 1977) (Hoffman, J., dissenting), rev'd, 399 A.2d
123 (Pa. 1979).
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render its judgment on whether a crime occurred. Its acquittal indicates that
the jury simply did not believe Y.C. at all. The common law prohibition against
introducing other act evidence, as previously quoted, states that “[i]t is not
proper to raise a presumption of guilt, on the ground, that having committed
one crime, the depravity it exhibits makes it likely he would commit another.”
Shaffner, 72 Pa. at 65. The charges should not have been tried together
because, had the jury believed Y.C., they would apply a propensity rationale
and presume that Appellant must have committed the acts against K.R. But
this situation is atypical as the jury was not told that Appellant had committed
a crime, but rather asked to render judgment on whether he did with respect
to both victims. By acquitting Appellant of the Y.C. allegations, the jury
concluded that no crime occurred regarding her testimony. The Wood Court
remarked that “where the evidence which was improperly admitted or
excluded is relevant only to charges of which defendant was ultimately
acquitted any error in admitting or excluding such evidence is harmless,”
which reflects confidence in assessing the effect of the jury’s acquittal. Wood,
supra at 1351. It could always be said that erroneously admitted evidence
could have some collateral effect in the jurors’ mind. In this regard, the
inability to definitively conclude that the jury returned a not guilty verdict due
to disbelief of Y.C.’s testimony must be considered alongside the equally well-
established principle that “[j]uries are presumed to follow a court’s
instructions.” Commonwealth v. Naranjo, 53 A.3d 66, 71 (Pa. Super.
2012). The jury was instructed that it may only find guilt beyond a reasonable
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doubt, and we must presume that the jury would not have deemed Y.C. not
credible, then simultaneously used her discredited testimony in rendering
judgment on the K.R. allegations.
We are concerned with the trial court’s conclusion that the
Commonwealth may have used the stronger case against K.R. to “bootstrap”
the weaker case concerning Y.C. If that were the Commonwealth’s intent,
that is obviously entirely improper. To reiterate, we agree that this is a close
call9 as the jury’s verdict is the critical facet of our harmless-error analysis.
The verdicts indicate that the jury separated the charges and returned not
guilty verdicts with respect to Y.C., and we presume that the jury would not
then credit her testimony for purposes of convicting Appellant with respect to
K.R. Similarly, we are confident that the jury faithfully applied the law by not
finding Appellant guilty of the Y.C. charges based on the fact it clearly credited
K.R.’s testimony. We therefore conclude that the Commonwealth has
____________________________________________
9 We briefly note that in Weaver v. Massachusetts, 582 U.S. 286 (2017),
the United States Supreme Court addressed whether constitutional structural
errors always entitle a defendant to a new trial on collateral review without a
showing of prejudice. The joinder error here is viewed as non-constitutional
and the issue arises on direct appeal, but the case speaks to Appellant’s
argument that the effect of the error here is essentially impossible to
determine. Id. at 295 (explaining that some errors are deemed structural
because “the precise effect of the violation cannot be ascertained”) (quotation
marks and citation omitted). We are also cognizant of the differences in
opinion amongst the Justices of our Supreme Court concerning the ability of
an appellate court to assess whether an error was harmless when credibility
is at issue, as reflected in the various opinions issued in Commonwealth v.
Raboin, 258 A.3d 412 (Pa. 2021).
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established that the error was harmless beyond a reasonable doubt, as the
error in consolidating the cases did not prejudice Appellant.
II.
Weight of the evidence
Appellant’s remaining issue raises sundry claims against the weight of
the evidence supporting the verdicts against K.R., all of which generally poke
holes in aspects of K.R.’s testimony. Appellant highlights that K.R.’s testimony
differed from prior statements in that her jury testimony added details that
she did not disclose in prior statements to forensic interviewers. For instance,
K.R. testified at a preliminary hearing that Appellant inserted the vibrator into
her vagina while, at trial, she agreed that, prior to the preliminary hearing,
she had said that Appellant only ever inserted his fingers and penis. Appellant
also submits that it is completely unbelievable that K.R. would recall being
taken from her crib at the age of three, and that her testimony that Appellant
beat her on several occasions without leaving marks was not credible, as
K.R.’s mother would have observed those signs of physical abuse.
Appellant’s argument asks this Court to weigh K.R.’s credibility, which
we may not do. Our Supreme Court has established the parameters of
appellate review as follows:
The weight of the evidence is exclusively for the finder of fact who
is free to believe all, part, or none of the evidence and to
determine the credibility of the witnesses. An appellate court
cannot substitute its judgment for that of the finder of fact. Thus,
we may only reverse the lower court’s verdict if it is so contrary
to the evidence as to shock one’s sense of justice. Moreover,
where the trial court has ruled on the weight claim below, an
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appellate court’s role is not to consider the underlying question of
whether the verdict is against the weight of the evidence. Rather,
appellate review is limited to whether the trial court palpably
abused its discretion in ruling on the weight claim.
Commonwealth v. Champney, 832 A.2d 403, 409 (Pa. 2003) (citations
omitted). The primary focus of a weight challenge is whether “the evidence
was so one-sided or so weighted in favor of acquittal that a guilty verdict
shocks one’s sense of justice.” Commonwealth v. Lyons, 79 A.3d 1053,
1067 (Pa. 2013) (citation omitted).
Because we view the trial court’s exercise of discretion and not the
underlying question of whether the weight of the evidence supports the
verdicts, we quote the trial court’s analysis rejecting Appellant’s claim:
The victim testified about the various acts of sexual contact
between herself and [Appellant]. She testified that[,] when she
was six or seven years old[, Appellant] placed a silver vibrator
with a black button between her labia. … K.R. testified that
[Appellant] would pin her down and sometimes she would have
bruises on her legs and arms; that her mother noticed but was
told that she was just playing outside with her brother. K.R. was
cross[-]examined on the fact that she did not mention any
incidents with the vibrator, []or that [Appellant] had her touch
him, during her interview at the Children’s Alliance Center. K.R.
was further cross[-]examined as to her inconsistency in her
statements as to whether she had been slapped, choked, hit with
a belt, and pushed to the floor, all of which were reported to the
Children’s Alliance Center but not part of her trial testimony. The
mother of K.R., [M.R.], testified that she didn’t see any bruises
but that sometimes K.R. would roughhouse with the boys because
she has older brothers. She immediately qualified that with “but
not things to be concerned about” and “like a normal child.” She
also said she never noticed any unusual bruises and nothing on
her neck, nor belt marks. She testified that she didn’t have
concerns that [Appellant] was hitting K.R. because “he favored
her.” She testified that K.R. would cry in the bath. The jury as
finder of fact is free to believe all, none, or some of the evidence.
The jury was instructed on credibility of witnesses generally, as
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well as given False In One, False In All and Failure to Make Prompt
Complaint.
Credibility determinations are made by [the] finder of fact and
challenges to those determinations go to weight, not sufficiency
of evidence. The jury was free to accept or reject the various
arguments put forth by the Commonwealth and the Defense in
this case. For example, the testimony of the use of the vibrator,
if believed, could support the required element needed for
involuntary deviate sexual intercourse — a charge where a not
guilty verdict was rendered.
After reviewing the record, the verdict of the jury, while
disappointing to [Appellant], does not come as a shock to this
[c]ourt. In light of K.R. at the time of the victimization being
under ten years old, and at times as young as three years old,
variations in the testimony during multiple interviews to different
persons would not be unexpected. The evidence presented at trial
was not contrary to the verdicts of the jury. The jury made factual
findings and rendered verdicts of guilty as to some charges and
not guilty to others, showing their careful assessment of the
evidence presented. This issue has no merit.
TCO at 6-7.
We find no abuse of discretion in this analysis. The trial court had the
institutional advantage of observing the testimony firsthand and its conscience
was not shocked by the verdict. See Commonwealth. v. Brown, 648 A.2d
1177, 1190 (Pa. 1994) (“[A]n appellate court’s review rests solely upon a cold
record. Because of this disparity in vantage points[,] an appellate court is not
empowered to merely substitute its opinion concerning the weight of the
evidence for that of the trial judge.”). The trial court carefully considered
Appellant’s arguments assailing the weight of the evidence and found no merit
to the complaint. We find no abuse of discretion in its determination, and we
therefore must reject Appellant’s point of error.
Judgment of sentence affirmed.
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President Judge Emeritus Stevens joins this memorandum.
Judge Lazarus files a dissenting memorandum.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 12/06/2023
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