Com. v. Franklin, B. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRIAN SCOTT FRANKLIN :
:
Appellant : No. 922 WDA 2022
Appeal from the Judgment of Sentence Entered June 23, 2022
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0000050-2020
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY BOWES, J.: FILED: DECEMBER 11, 2023
Brian Scott Franklin appeals from the judgment of sentence of two to
four years of incarceration and thirteen years of probation following his
convictions for indecent assault, corruption of minors, and unlawful contact
with a minor. We affirm.
At Appellant’s jury trial, then ten-year-old K.F. reticently and reluctantly
testified that Appellant, whom K.F. identified as “Uncle Fry,” had touched his
genitals “more than one time” when K.F. was approximately six or seven years
old and that he was “tired of it happening.” N.T. Trial, 3/24/22, at 113, 117,
120, 123-24. Significantly, although K.F. refused to look at Appellant in order
to identify him as the perpetrator, D.F., K.F.’s estranged father and Appellant’s
nephew, testified that everyone in his family, including K.F., referred to
Appellant by his longtime nickname of “Uncle Fry.” Id. at 133-34, 167-68.
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Appellant had also frequently stayed overnight at the house where K.F. lived.
Id. at 114-15.
With proper notice to Appellant, three other witnesses, M.S., B.B., and
S.S., testified about similar sexual assaults committed against them by
Appellant when they were all minors. M.S. stated that he visited Appellant’s
home to eat and watch movies, sometimes staying overnight, and on multiple
occasions, Appellant touched M.S.’s genitals with his hand. B.B. testified that
he engaged in similar activities at Appellant’s house and that Appellant had
fondled his genitals with his hand. Appellant likewise felt S.S.’s genitals with
his hand while S.S. and his friends were at Appellant’s house to play games,
watch movies, and, again, stay overnight. In sum, all three witnesses testified
to forming a bond with Appellant when they were children, being in close
contact with him, and all stated that Appellant touched them in the same
manner.
After the conclusion of trial, Appellant was convicted of the above
offenses and sentenced as hereinabove indicated. This timely appeal followed,
and both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following questions on appeal:
1. With respect to Appellant Franklin’s conviction voted by his
jury, (A) should all three convictions (for the crimes of
[i]ndecent [a]ssault, [c]orruption of [m]inors, and [u]nlawful
[c]ontact with a [m]inor) be vacated with prejudice due to the
failure of the Commonwealth’s proof at trial to establish that
Appellant was beyond a reasonable doubt the person who
committed those crimes; or, alternatively, (B) should
Appellant’s [c]orruption of [m]inors conviction be vacated, at
the least, given the failure of the Commonwealth to present
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sufficient evidence to establish the course of conduct element
that it was required to prove in order to establish that crime?
2. Should Appellant Franklin’s convictions be set aside, and a new
trial ordered for any conviction for which sufficient evidence
was presented, due to the fact that the court below erred in
permitting the Commonwealth to present the testimony of
three prior crimes witnesses with the testimony of these
witnesses being inadequate to establish common scheme, plan,
or opportunity, and being unduly prejudicial in any event[?]
Appellant’s brief at 4 (cleaned up).
Appellant’s first issue challenges the sufficiency of the evidence to
sustain his convictions. We begin by examining the pertinent legal principles.
This Court has articulated our standard of review when considering this
challenge as follows:
Whether viewing all the evidence admitted at trial in the light most
favorable to the verdict winner, there is sufficient evidence to
enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the finder of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Gause, 164 A.3d 532, 540-41 (Pa.Super. 2017).
Appellant challenges the sufficiency of the Commonwealth’s evidence
relating to his identity. See Appellant’s brief at 12. It is well-settled that the
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Commonwealth must “establish the identity of the defendant as the
perpetrator of the crimes.” Commonwealth v. Brooks, 7 A.3d 852, 857
(Pa.Super. 2010). Appellant avers that “there is nothing but conjecture to
support the conclusion that Appellant is the Uncle Fry that [K.F] referred to
when he testified.” Appellant’s brief at 23-24 (cleaned up). In that vein,
Appellant contends that K.F. never identified him in the courtroom at trial, as
K.F. refused to look around the room to identify Appellant as the perpetrator.
See id. at 16.
We conclude that this action was not necessary for the Commonwealth
to satisfy its burden of proof. Despite K.F.’s evident distress at having to recall
these traumatic events, he unequivocally indicated that it was “Uncle Fry” who
had abused him. Id. at 113. Moreover, D.F. testified that “Uncle Fry” was
Appellant’s longtime nickname and that if K.F. referred to an “Uncle Fry,” he
would mean Appellant. Id. at 167-68. Viewed in the light most favorable to
the Commonwealth as the verdict winner, the foregoing evidence was
sufficient to establish Appellant’s identity as the perpetrator of the above
offenses. Thus, we find unavailing Appellant’s argument that the evidence
was insufficient on the grounds of identity.
Appellant has further challenged the sufficiency of the evidence for his
conviction for corruption of minors, contending that the Commonwealth did
not demonstrate that his actions constituted a “course of conduct.” See
Appellant’s Brief at 12-13. Specifically, Appellant states that “the
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Commonwealth’s evidence did not establish that Appellant engaged in more
than a single instance of improper sexual conduct involving [K.F.].” Id. at 24.
The Crimes Code defines the crime of corruption of minors as follows:
(1)(i) Except as provided in subparagraph (ii), whoever, being of
the age of 18 years and upwards, by any act corrupts or tends to
corrupt the morals of any minor less than 18 years of age, or who
aids, abets, entices or encourages any such minor in the
commission of any crime, or who knowingly assists or encourages
such minor in violating his or her parole or any order of court,
commits a misdemeanor of the first degree.
(ii) Whoever, being of the age of 18 years and upwards, by any
course of conduct in violation of Chapter 31 (relating to sexual
offenses) corrupts or tends to corrupt the morals of any minor less
than 18 years of age, or who aids, abets, entices or encourages
any such minor in the commission of an offense under Chapter 31
commits a felony of the third degree.
18 Pa.C.S. § 6301(a). This Court has expounded upon the meaning of “course
of conduct” thusly:
Course of conduct is defined in multiple instances elsewhere in the
Crimes Code and, in each of those instances, course of conduct
implies more than one act over time. [Further], this Court has
explained that [c]ourse of conduct by its very nature requires a
showing of a repetitive pattern of behavior.
Commonwealth v. Kelly, 102 A.3d 1025, 1030-31 (Pa.Super. 2014) (en
banc) (cleaned up) (internal citations and quotations omitted).
Appellant avers that K.F.’s statements that he was assaulted “more than
one time” or “more than once” could mean more than once during the same
incident, thereby failing to establish a course of conduct that occurred over
time. See Appellant’s brief at 10, 26-27. However, as explained, infra, we
find Appellant’s position unconvincing, as the Commonwealth adduced
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evidence that demonstrated Appellant sexually assaulted the victim more than
once over a period of time, thus proving a “course of conduct.”
First, K.F. testified that the assaults occurred “more than once.” N.T.
Trial, 3/24/22, at 124. Moreover, K.F. told his mother about the abuse
because he was “tired of it happening” and wanted it to stop. Id. at 123.
K.F.’s statement indicated an ongoing action. Furthermore, the assaults
occurred when K.F. was in first grade, but he was not sure if they also
happened when he was in kindergarten, thereby demonstrating that they
transpired over a period of time, i.e., on more than one occasion. Viewed in
the light most favorable to the Commonwealth as the verdict winner, this
evidence was sufficient to establish that Appellant abused K.F. on more than
one occasion over a period of time, illustrating a course of conduct. Phrased
differently, the Commonwealth’s course-of-conduct evidence was neither so
unreliable nor so weak and inconclusive as to make the jury verdict pure
conjecture. See Gause, supra at 540 (“Any doubts regarding a defendant’s
guilt may be resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be drawn from
the combined circumstances”). Accordingly, Appellant is not entitled to relief
on this issue.
We next turn to Appellant’s argument that the trial court erred in
allowing the Commonwealth to present the testimony of M.S., B.B., and S.S.
regarding prior sexual assaults that Appellant committed against them when
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they were minors.1 Appellant argues that this testimony constituted
propensity evidence barred by Pa.R.E. 403 and Pa.R.E. 404(b)(1) and that it
was more prejudicial than probative. See Appellant’s brief at 30.
It is well-settled that a trial court’s evidentiary rulings are afforded great
deference. As such, “[w]e give the trial court broad discretion, and we will
only reverse a trial court’s decision to admit or deny evidence on a showing
that the trial court clearly abused its discretion.” Commonwealth v. Talbert,
129 A.3d 536, 539 (Pa.Super. 2015) (cleaned up). An abuse of discretion “is
not merely an error in judgment, but an overriding misapplication of the law,
or the exercise of judgment that was manifestly unreasonable, or the result
of bias, prejudice, ill-will or partiality, as shown by the evidence of record.”
Id. Furthermore, we have long understood that:
Generally, evidence of prior bad acts or unrelated criminal
activity is inadmissible to show that the defendant acted in
conformity with those past acts or to show criminal propensity.
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.
In determining whether evidence of prior bad acts is
admissible, the trial court is obliged to balance the probative value
of such evidence against its prejudicial impact.
____________________________________________
1 Before trial, the court held a hearing on the Commonwealth’s Rule 404(b)
notice alleging that Appellant had prior convictions for similar conduct and
that the Commonwealth would have three individuals testify detailing how
Appellant had abused them. After the hearing, the court permitted these
individuals to testify.
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Commonwealth v. Sitler, 144 A.3d 156, 163 (Pa.Super. 2016) (citation
omitted); Pa.R.E. 404(b).
The trial court found that the applicable Rule 404(b) exception
supporting admission of the testimony was that involving a common plan or
scheme. Hence, we consider the following principles relating to that
exception:
[E]vidence of other crimes or bad acts may be admitted where 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.
Commonwealth v. Kurtz, 294 A.3d 509, 532 (Pa.Super. 2023) (cleaned up).
While impossible for crimes to be identical in every respect, “what is essential
is that the similarities are not confined to insignificant details that would likely
be common elements regardless of who had committed the crimes.”
Commonwealth v. Cosby, 224 A.3d 372, 402 (Pa.Super. 2019), rev’d on
other grounds, 252 A.3d 1092 (Pa. 2021).
Appellant argues that the trial court erred in admitting the testimony
from the three witnesses as a common plan because the commonalities did
not establish a “signature” and instead only displayed vague similarities.
Appellant’s brief at 37-38 (citing Commonwealth v. Semenza, 127 A.3d 1,
11 (Pa.Super. 2015)). Appellant contends that the facts of the other assaults
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were “run-of-the-mill” and contained no distinctive elements. Appellant’s brief
at 42-43.
In rejecting Appellant’s claims, the trial court found that the sexual
assaults of M.S., B.B., and S.S. contained sufficient similarities to establish a
common plan, scheme, or design. See Trial Court Opinion, 11/21/22, at 6.
The trial court determined that the assaults resembled each other, noting that
“Appellant [developed] relationships with the victims, [established] their trust
. . . and [touched] his victims for his own sexual gratification.” Id.Upon review of the certified record, we find no abuse of discretion with
the trial court’s decision. Indeed, the likenesses among the cases are striking.
First, all of Appellant’s victims were male children whom Appellant knew well.
K.F. was a family member, B.B. was Appellant’s step-nephew, and M.S. and
S.S. were friends of Appellant’s nephews who regularly spent time with him.
Due to these close relationships and his status as an adult, Appellant was in a
position of authority to all of his victims. Similarly, he cultivated trust and
close contact with his victims as a family member or quasi-family member.
The three boys whom Appellant had assaulted years prior spoke of engaging
in activities such as playing games, watching movies, and staying overnight
at Appellant’s home, thereby forming a close relationship with him. Appellant
had a similar presence in K.F.’s life, even staying overnight numerous times
where K.F. resided. Critically, after establishing a sufficient level of trust,
Appellant assaulted his victims. Indeed, Appellant did not prey upon strangers
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or near-strangers, but rather upon family members or close friends of family
members, demonstrating the similarity in his types of victims. See Kurtz,
supra at 532. Furthermore, all four victims reported an identical manner of
assault: Appellant touched their genitals with his hand.
Considering the types of victims Appellant selected, the way he
cultivated relationships with those victims, and the manner of his assaults,
the “[s]ufficient commonality of factors between the incidents dispels the
notion that they are merely coincidental.” Id. Hence, the trial court did not
abuse its discretion in admitting this testimony.
Appellant further claims that, even if offered for a proper purpose, the
evidence was unduly prejudicial. The trial court was unpersuaded, stating that
when balanced against the danger of unfair prejudice, the testimony given by
M.S., B.B., and S.S. was relevant to show the similarities among the assaults
and to overcome K.F.’s reticence on the witness stand. See N.T. Trial, 3/23/22,
at 36-37.
In the same vein, we agree with the trial court that Appellant was not
unduly prejudiced by the admission of this evidence. Significantly, the victims’
testimony was not of the character that “tended to convict the appellant only
by showing his propensity to commit crimes.” Commonwealth v. Brown,
186 A.3d 985, 993 (Pa.Super. 2018) (cleaned up). Rather, as indicated above,
it clearly demonstrated Appellant’s common plan and scheme. We also note
that in weighing the probative value against the potential for prejudice against
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Appellant, K.F.’s testimony of Appellant’s abuse was uncorroborated at trial.
Accordingly, the Commonwealth had significant need for the testimony of the
other three victims to help strengthen K.F.’s reluctant and timid testimony,
which in turn increased the probative value of this collective evidence. See
Tyson, supra at 362 (concluding that the trial court abused its discretion in
prohibiting common scheme evidence when it was important to the
Commonwealth’s case to bolster a victim’s testimony).
Moreover, any potential for unfair prejudice was alleviated by the trial
court’s cautionary instruction to the jury that the testimony of M.S, B.B., and
S.S. was not offered to demonstrate that Appellant had a bad character or a
propensity to commit bad acts, but rather to show that Appellant’s abuse was
part of a common plan. See N.T. Trial, 3/25/22, at 223. This Court has held
that “it is presumed that jurors will follow the instructions provided by the
court.” Commonwealth v. Gilliam, 249 A.3d 257, 274 (Pa.Super. 2021).
Thus, we discern no abuse of discretion in the trial court’s decision to permit
the testimony.
For all of the foregoing reasons, Appellant is not entitled to relief.
Judgment of sentence affirmed.
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DATE: 12/11/2023
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