Com. v. Lynn, W.

J-A23005-13
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILLIAM J. LYNN,
Appellant No. 2171 EDA 2012
Appeal from the Judgment of Entered Sentence July 24, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003530-2011
BEFORE: BENDER, P.J.E., DONOHUE, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED December 22, 2015
Appellant, William J. Lynn, appeals from the judgment of sentence of 3
– 6 years’ incarceration, imposed following his conviction for endangering
the welfare of children (EWOC).1 The instant case is on remand from our
Supreme Court, see Commonwealth v. Lynn, 114 A.3d 796 (Pa. 2015),
for consideration of issues originally raised but not decided by our Court,
see Commonwealth v. Lynn, 83 A.3d 434 (Pa. Super. 2013). After careful
review, we conclude that the trial court abused its discretion by admitting a
high volume of unfairly prejudicial other-acts evidence and, on that basis,
we vacate Appellant’s judgment of sentence and remand for a new trial.
Factual Background
____________________________________________
1
18 Pa.C.S. § 4304.
J-A23005-13
Appellant, Monsignor William J. Lynn, served as Secretary for Clergy
(“Secretary”) for the Archdiocese of Philadelphia (“Archdiocese”) from June
of 1992 until June of 2004. During that time, Appellant was responsible for,
inter alia, handling clergy sexual abuse issues that arose within the
Archdiocese. In that capacity, Appellant supervised a priest, Edward V.
Avery (“Avery”), who molested a ten-year-old altar boy at St. Jerome’s
Parish in 1999. In his capacity as Secretary, Appellant placed Avery in a
rectory at St. Jerome’s following allegations of sexual abuse that came to
light in 1992, regarding Avery’s conduct at another parish between 1978 and
1981. The jury in this case ultimately convicted Appellant of EWOC for his
deficient supervision of Avery. A full summary of the facts relating to
Appellant’s supervision of Avery can be found in our December 26, 2013
Opinion. See Lynn, 83 A.3d at 437-45. Additionally, our Supreme Court
also provided its own summary of this evidence, and related matters, in its
April 27, 2015 decision. See Lynn, 114 A.3d at 798-808.
Procedural History
As we noted in our previous opinion:
This case was initiated by a criminal complaint charging
Appellant with two counts each of EWOC, 18 Pa.C.S. § 4304, and
conspiracy to commit EWOC, 18 Pa.C.S. § 903, relating to his
supervision of Avery and another priest, Reverend James
Brennan (“Brennan”). Initially, both Avery and Brennan were
scheduled to be tried alongside Appellant as co-defendants.
However, Avery pled guilty to involuntary deviate sexual
intercourse[, 18 Pa.C.S. § 3123,] and conspiracy to commit
EWOC on March 22, 2012, after the jury had been selected but
-2-
J-A23005-13
before the Commonwealth began presenting its case. Brennan
remained as Appellant's co-defendant until the case concluded.
Appellant's and Brennan's jury trial commenced on March
26, 2012. The Commonwealth rested its case on May 17, 2012
and, at that time, the trial court granted Appellant's motion for
judgment of acquittal with regard to the Brennan-related
conspiracy count, but denied the motion with respect to the
remaining counts. The trial ended on June 22, 2012, when the
jury returned a verdict of guilty with respect to the Avery-related
EWOC charge, and acquitted him of the Avery-related conspiracy
and Brennan-related EWOC charges.17 Appellant did not file
post-sentence motions.
___
17
The jury failed to reach a verdict on any of the charges
pending against Brennan.
___
On July 24, 2012, the trial court sentenced Appellant to a
term of 3–6 years' incarceration for EWOC, graded as a third-
degree felony.18 Appellant filed a timely notice of appeal on
August 8, 2012, and complied in a timely fashion with the trial
court's order to file a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b). The trial court
eventually filed its 1925(a) opinion on April 12, 2013.
___
18
EWOC is a third-degree felony, rather than a first-
degree misdemeanor, “where there is a course of conduct
of endangering the welfare of a child[.]” 18 Pa.C.S. §
4304(b).
___
Lynn, 83 A.3d at 445.
Appellant originally presented ten questions for our review, which fall
generally into four categories: First, Appellant challenged the sufficiency of
the evidence supporting his conviction. Appellant’s Brief, at 16-40. Second,
Appellant asserted the trial court abused its discretion by improperly
charging the jury. Id. at 40-54. Third, he claimed the trial court abused its
-3-
J-A23005-13
discretion by improperly admitting evidence of twenty-one instances of
other-acts under Pa.R.E. 404(b)(2). Id. at 54-68. Fourth, Appellant
claimed the trial court abused its discretion when it denied his motion for a
mistrial following prosecutorial misconduct that purportedly occurred during
the Commonwealth’s closing argument. Id. at 68-70.
In an opinion filed on December 26, 2013, this Court reversed
Appellant’s conviction on sufficiency grounds, concluding that Appellant was
not a “supervisor” within the meaning of the EWOC statute and, therefore,
that he could not be charged as a principal thereunder. See Lynn, 83 A.3d
at 453-54. Additionally, we held that there was insufficient evidence to hold
him accountable as an accomplice to Avery’s commission of an EWOC
offense. Id. at 457. Consequently, this Court did not address Appellant’s
non-sufficiency related claims. This Court also did not address certain
aspects of Appellant’s sufficiency-related claims, particularly with respect to
whether Appellant possessed the requisite mens rea to commit EWOC as a
principal.
Following our decision, the Commonwealth petitioned Pennsylvania’s
Supreme Court for allowance of appeal. The Supreme Court granted that
petition on May 8, 2014, accepting for review the following issues:
(1) Was the evidence insufficient to prove endangering the
welfare of children because defendant did not have direct contact
with children?
(2) Assuming arguendo defendant could not endanger the
welfare of children in his individual capacity, but as part of a
general scheme placed a known sexual predator under his
-4-
J-A23005-13
control in a position that promoted the risk of further sexual
assaults, was the evidence sufficient to convict him as an
accomplice?
Commonwealth v. Lynn, 91 A.3d 1233 (Pa. 2014) (per curiam order).
In an opinion issued on April 27, 2015, the Supreme Court reversed
our December 26, 2013 decision, finding that this Court “erred in holding
that the EWOC statute required evidence of direct supervision of children
and overturning Appellee's conviction on that basis[,]” Lynn, 114 A.3d at
827, because “the statute is plain and unambiguous that it is not the child
that Appellee must have been supervising, but the child's welfare,” id. at
823. The Supreme Court declined to answer the second issue upon which it
granted the Commonwealth’s petition for allowance of appeal, because the
Court ostensibly found that “the Commonwealth's evidence was sufficient to
sustain the conviction for EWOC as a principal.” Id. at 827. Finally, the
Supreme Court remanded “for further proceedings consistent with” its
opinion. Id.
Following our Supreme Court’s decision, the parties flooded this Court
with numerous filings seeking to litigate, inter alia, whether this panel could
still address aspects of Appellant’s sufficiency claim(s) that were left
unanswered by our December 26, 2013 opinion, and which were ostensibly
outside the scope of our Supreme Court’s granting of the Commonwealth’s
petition for allowance of appeal. See Appellant’s Application for Additional
Briefing, 5/11/2015; and see Commonwealth’s Answer to Application for
Additional Briefing, 5/18/2015. In response, by order dated June 16, 2015,
-5-
J-A23005-13
this Court directed the parties, pursuant to Appellant’s request, to provide
supplemental briefing on the matter. See Order, 6/16/15, at 1-3. The
parties complied in a timely fashion; Appellant filed a supplemental brief on
June 30, 2015, and the Commonwealth filed its reply on August 5, 2015.
Appellant’s original brief presented the following questions for our
review:
1. Whether the pre-amended version of 18 Pa.C.S.A. § 4304
(endangering the welfare of children) (“EWOC”) did not properly
apply to Appellant, Msgr. William Lynn, who was not a parent,
guardian or other person supervising the welfare of a child and
who had no direct involvement with the child, never met and
never knew the child, and whether Appellant’s trial as a
supervisor under EWOC was a violation of the ex post facto
clauses of the U.S. and Pennsylvania Constitutions?
2. Whether the trial court erred in allowing the jury to deliberate
on whether Appellant can be liable for EWOC as a principal or an
accomplice when the Commonwealth failed to provide sufficient
evidence to meet its burden of proving that Appellant violated
each element of the crime, as either a principal or an
accomplice?
3. Whether the lower court's refusal to provide a jury instruction
on the definition of person supervising the welfare of a child
consistent with Commonwealth v. Brown, 721 A.2d 1105 (Pa.
Super. 1998)[,] and the model jury charge was reversible error
mandating a new trial?
4. Whether the lower court's jury charge on the EWOC element
of “knowingly,” which provided two directly conflicting
definitions, was reversible error mandating a new trial?
5. Whether the lower court’s jury charge on the EWOC element
of “duty of care,” which presupposed that the duty of care
element was met and provided examples from civil, rather than
criminal, law was reversible error mandating a new trial?
6. Whether the lower court’s undue emphasis on accomplice
liability, as well as an erroneous definition of accomplice intent,
-6-
J-A23005-13
during its jury charge was reversible error mandating a new
trial?
7. Whether the lower court’s jury charge about Appellant’s
liability for endangering other unnamed minors supervised by
Edward Avery, when there is no support in Pennsylvania law that
EWOC applies to unknown and unknowable children, is reversible
error mandating a new trial?
8. Whether the lower court’s jury instruction on whether
endangering the welfare of a child behavior must be criminal,
which permitted the jury in this case to wrongly infer that
Appellant violated EWOC, even though there is no underlying
criminal conduct that Appellant was aware of, was reversible
error mandating a new trial?
9. Whether it was abuse of discretion for the lower court to
admit evidence of acts of abuse by 21 other priests, dating to
the late 1940's, pursuant to [Pa.R.Evid. 404(b)], and did the
[c]ourt err in holding that this evidence passed the
probative/prejudicial test of Pa.R.Evid. 403?
10. Whether it was abuse of discretion for the lower court not to
grant a mistrial on the basis of the Commonwealth’s highly
prejudicial summation which included numerous statements not
supported by the trial record?
Appellant’s Brief, at 4-5.
Collateral Estoppel/Issue preclusion
The first matter we will address is whether Appellant is precluded from
arguing certain sufficiency claims due to the prior decision of our Supreme
Court. It is undisputed that Appellant cannot re-litigate his sufficiency claim
as it pertains to the matter of statutory interpretation that formed the
explicit basis of the Supreme Court’s reversal of our prior decision. The
Supreme Court specifically granted the Commonwealth’s petition for
allowance of appeal on that basis, and decided squarely against this Court’s
interpretation of the EWOC statute.
-7-
J-A23005-13
Appellant contends, however, that his statutory construction
argument—based on the theory that he was not within the class of persons
held accountable under the statute—was not the only sufficiency issue that
he raised regarding his culpability as a principal to EWOC when his appeal
was originally before this Court. At that time, Appellant also presented
claims pertaining to the mens rea element of EWOC, i.e., whether Appellant
knowingly endangered the welfare of children and, separately, whether he
owed a duty of care to the victim. Appellant argues that he is now entitled
to a decision on the merits of these ostensibly distinct sufficiency claims
because this Court did not address them in our December 26, 2013 opinion,
and because they were not included within the Supreme Court’s granting of
the Commonwealth’s petition for allowance of appeal. The Commonwealth
regards our Supreme Court’s decision as precluding Appellant from asserting
any other sufficiency claims on remand.
Generally speaking,
the doctrine of collateral estoppel, or issue preclusion, applies
where the following four prongs are met:
(1) An issue decided in a prior action is identical to one
presented in a later action;
(2) The prior action resulted in a final judgment on the
merits;
(3) The party against whom collateral estoppel is asserted
was a party to the prior action, or is in privity with a party
to the prior action; and
(4) The party against whom collateral estoppel is asserted
had a full and fair opportunity to litigate the issue in the
prior action.
-8-
J-A23005-13
Rue v. K-Mart Corp., 713 A.2d 82, 84 (Pa. 1998) (emphasis added).
Initially, we note that the “prior action” for purposes of our analysis is
the Supreme Court’s April 27, 2015 opinion. Also, there is no dispute with
regard to the third prong of the Rue issue-preclusion test, as Appellant was
clearly a party to that action. However, our resolution of the remaining
three prongs depends on how broadly or narrowly Appellant’s sufficiency
claims are construed and, ultimately, on the nature of the Supreme Court’s
decision itself.
Appellant was convicted of a single offense: EWOC. Appellant argues
that his mens rea and duty-of-care sufficiency claims pertaining to that
offense are stand-alone issues. Under that view, Appellant construes the
Supreme Court’s prior decision in this case as having left these issues
unresolved on the merits and, therefore, now available for consideration on
remand. The Commonwealth, on the other hand, portrays Appellant’s
multiple sufficiency claims as a single sufficiency issue subdivided into
multiple arguments. As such, the Commonwealth contends that the
Supreme Court’s decision constituted a final judgment on the merits of
Appellant’s sufficiency issue, which collaterally estops Appellant from raising
alternative sufficiency arguments on remand. In our view, both theories are
plausible interpretations of the prior history of this case.
We recognize that this Court did not address Appellant’s mens rea and
duty-of-care sufficiency claims in our December 26, 2013 opinion.
Furthermore, it is apparent that the Supreme Court did not expressly
-9-
J-A23005-13
address those matters in its April 27, 2015 opinion, nor did the High Court
grant review to specifically address them. However, we are nonetheless
constrained to agree with the Commonwealth that Appellant cannot now
litigate those claims on remand. In doing so, however, we decline to adopt
the Commonwealth’s reasoning that all sufficiency matters pertaining to the
same offense constitute a single sufficiency issue composed of multiple
arguments. Rather, we look to the Supreme Court’s decision itself and
conclude that, by the manner in which it disposed of the issues accepted for
review, the Supreme Court effectively precluded Appellant from arguing his
mens rea and duty-of-care claims on remand.
As noted above, our Supreme Court granted review of two questions,
the first pertaining to Appellant’s culpability as a principal in regard to this
Court’s (incorrect) decision to construe the EWOC statute as requiring direct
supervision of children to impose liability for that offense, and the second
regarding Appellant’s culpability as an accomplice. After resolving the first
question against Appellant, the Court then declined to address the
accomplice issue, stating that “[b]ecause we conclude that the
Commonwealth's evidence was sufficient to sustain the conviction for EWOC
as a principal, we do not address the separate contention that the evidence
was insufficient to sustain the EWOC conviction as an accomplice.” Lynn,
114 A.3d at 827 (emphasis added).
Because the Supreme Court declined to address the accomplice-to-
EWOC issue on that basis, we must conclude that the High Court intended its
- 10 -
J-A23005-13
decision to be the final judgment as to any other of Appellant’s sufficiency
claims attacking his culpability as the principal offender. It would not make
sense for the Supreme Court to refuse to answer the accomplice question,
after having granted review of the same, if there were remaining principal-
based sufficiency issues left unresolved by its decision. If the Supreme
Court had anticipated that principal-based sufficiency claims would be
addressed on remand, it should have reached the accomplice question. If
the Supreme Court had reached that question, a decision resolved in the
Commonwealth’s favor (reversing our judgment on accomplice liability)
would render moot any of Appellant’s remaining principal-based sufficiency
claims.2 If resolved in Appellant’s favor (affirming our judgment on
accomplice liability), then Appellant would have, at least, a colorable
argument that the mens rea and duty-of-care sufficiency claims were ripe
for review on remand and not precluded by collateral estoppel. However, by
refusing to answer the accomplice question at all, the Supreme Court has
telegraphed to this Court that its decision was a final judgment as to all of
Appellant’s principal-based sufficiency claims.
This Court cannot explain why the Supreme Court granted review on a
single, principal-based sufficiency issue pertaining exclusively to statutory
____________________________________________
2
If Appellant is guilty as an accomplice to the sole EWOC offense at issue,
further litigation as to his role as the principal to that same offense would be
redundant.
- 11 -
J-A23005-13
interpretation of the EWOC statute, but then issued a decision effectively
precluding litigation of principal-based sufficiency claims, unrelated to
Appellant’s statutory interpretation arguments, that had never been
addressed by this Court in our December 26, 2013 opinion.3 Indeed, some
parts of the Supreme Court’s opinion could reasonably be read to suggest
that the Court was not issuing a final judgment as to the other aspects of
Appellant’s sufficiency claims.4 However, our interpretation of the Supreme
Court’s opinion is that it did just that when it declined to address the matter
of accomplice liability by concluding that “the Commonwealth's evidence was
sufficient to sustain the conviction for EWOC as a principal.” Lynn, 114 A.3d
____________________________________________
3
The Commonwealth suggests that it was Appellant’s burden to file a cross-
petition, in response to the Commonwealth’s petition for allowance of
appeal, in order to preserve his mens rea and duty-of-care sufficiency claims
that were left unaddressed by our December 26, 2013 opinion. See
Commonwealth Brief in Response to Defendant’s Supplemental Brief, at 11.
The Commonwealth does not cite to any authority to support this theory,
and it arguably conflicts with the Commonwealth’s other ostensibly
unsupported theory—that all sufficiency claims pertaining to a single offense
constitute a single, composite issue for purposes of collateral estoppel. If
the latter theory is correct (and it very well may be), it is unclear why
Appellant would be required to preserve subparts of the same claim for
which the Commonwealth sought review. In any event, we need not
address the validity of these theories, given our interpretation of the
Supreme Court’s opinion.
4
At one point, the Supreme Court states: “[W]hether [Appellant] owed a
duty of care to the children of St. Jerome’s, or to D.G. in particular, is not an
issue in this appeal and was not encompassed within our grant of allowance
of appeal. Rather, the legal issue we address concerns solely whether the
evidence sufficed to prove [Appellant]’s supervision of the welfare of a
child.” Lynn, 114 A.3d at 823.
- 12 -
J-A23005-13
at 827. Accordingly, we are compelled to conclude that Appellant is
precluded from raising any sufficiency claims on remand.
Other Acts Evidence
For ease of disposition, we next address Appellant’s ninth claim of
error. Appellant contends that the trial court abused its discretion when it
admitted other-acts evidence concerning allegations leveled against 21
priests other than Avery and Brennan, as well as evidence concerning the
Archdiocese’s often bungled response to those allegations, matters for which
Appellant was often the Archdiocese’s point man in his position as
Secretary.5 Summarizing his claim concerning this evidence, Appellant
asserts:
Of the 32 days of the Commonwealth’s case, at least 25 days
focused primarily on evidence related to the Archdiocese’s
handing of 21 other priests, dating as far back as the 1940s and
in no way connected to the actions of either Avery or James
Brennan or the circumstances surrounding their cases. The trial
court improperly permitted the introduction of this evidence
pursuant to Pa.R.E. 404(b). These files overwhelmed Appellant’s
trial and prejudiced the jury against Appellant, as the
representative of the Catholic Church. It is clear from the record
that the Commonwealth introduced these files to put on trial the
entire Archdiocese of Philadelphia, hoping to convict Appellant by
proxy for the sins of the entire church.
____________________________________________
5
There were at least a few cases where Appellant’s involvement predated
his appointment as Secretary entirely, although some of other cases
involved events that occurred when Appellant was an understudy to the
previous Secretary in the management of problematic priests in the
Archdiocese.
- 13 -
J-A23005-13
Appellant’s Brief, at 54-55. In his brief, Appellant challenges both whether
this evidence fit any of the Pa.R.E. 404(b)(2) exceptions to the prohibition
contained in Rule 404(b)(1), and, even if it did, whether the probative value
of that evidence was outweighed by its potential for unfair prejudice.
Asserting that such evidence was not admissible under the exception to the
prohibition against other-acts evidence, Appellant argues that he is entitled
to a new trial. Appellant preserved his claim in the lower court by objecting
to the admission of this evidence in an answer to the Commonwealth’s
pretrial Rule 404(b) motion filed on December 12, 2011, during a hearing on
the matter which commenced on January 23, 2012, and during trial.
Appellant also objected to the cautionary instructions issued by the trial
court with regard to this evidence on the basis that they were insufficient to
cure the resulting prejudice.
The Commonwealth counters that the trial court did not abuse its
discretion, arguing that the other-acts evidence was properly admitted, as it
ostensibly served permissible purposes under Rule 404(b), and because the
evidence was not unfairly prejudicial. The Commonwealth states:
The Commonwealth … introduced evidence of 21 other cases
probative of (inter alia) [Appellant]'s experience in supervising
priests who sexually abused minors; his knowledge of their
tendency to recidivate and the harm they inflict on their victims;
and the priorities he served and methods he used to conceal and
facilitate their misconduct in a manner that endangered children.
The totality of these facts revealed a systematic pattern of
knowledge and concealment, and refuted defendant's attempt to
argue that he had no control over such priests or reason to
- 14 -
J-A23005-13
believe they were dangerous. Such evidence was highly
probative.
Commonwealth’s Brief, at 38-39.
We review challenges to the admission of ‘other acts’ evidence for an
abuse of discretion. Commonwealth v. Patterson, 91 A.3d 55, 68 (Pa.
2014), cert. denied sub nom., Patterson v. Pennsylvania, 135 S. Ct. 1400
(2015) (“The admission of evidence of prior bad acts is solely within the
discretion of the trial court, and the court's decision will not be disturbed
absent an abuse of discretion.”).
Our Supreme Court has summarized the relevant law as follows:
Generally, evidence of prior bad acts or unrelated criminal
activity is inadmissible to show that a defendant acted in
conformity with those past acts or to show criminal propensity.
Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be
admissible when offered to prove some other relevant fact, such
as motive, opportunity, intent, preparation, plan, knowledge,
identity, and absence of mistake or accident. Pa.R.E. 404(b)(2).
In determining whether evidence of other prior bad acts is
admissible, the trial court is obliged to balance the probative
value of such evidence against its prejudicial impact.
Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009).
We focus our analysis herein on the balancing test between the
probative value of the other-acts evidence, and the potential for that
evidence to have unfairly prejudiced Appellant. For purposes of this
analysis, we assume that each of the 21 instances of other-acts evidence
served at least some minimal probative value with regard to the permissible
categories set forth in Rule 404(b)(2) (“This evidence may be admissible for
another purpose, such as proving motive, opportunity, intent, preparation,
- 15 -
J-A23005-13
plan, knowledge, identity, absence of mistake, or lack of accident.”)
(emphasis added). Furthermore, we note that the trial court admitted the
disputed other-acts evidence en masse, balancing its collective probative
value against its collective prejudice. See Trial Court Opinion (TCO),
4/12/13, at 136 (“Cumulatively, this evidence, which was highly probative of
[Appellant]’s knowledge, motive, and intent, outweighed its potential for
prejudice.”). Because Appellant does not specifically claim that the trial
court erred by treating this evidence collectively, and because the
Commonwealth does not specifically justify the admission of this evidence on
a case-by-case basis, we shall review the trial court’s admission of the
totality of this evidence in kind.
Probative Value of the Other-Acts Evidence
The trial court correctly indicated that, at trial, “the Commonwealth
bore the burden to demonstrate that [Appellant] ‘knowingly endangered’ a
child, as required under § 4304(a), or even beyond that, that he specifically
intended that Avery endanger that child as needed to establish accomplice
liability.” TCO, at 133. The trial court stated that this large volume of
other-acts evidence was admissible under Rule 404(b)(2) because it
“illuminat[ed] the [Appellant]'s knowledge, motive, and intent[, which] was
critical for the jury's determination about [Appellant]'s mens rea when he
supervised Avery.” TCO, at 180 (emphasis in original). The trial court also
found that “[t]he substantial probative value of this uncharged evidence
outweighed any potential for prejudice.” Id.
- 16 -
J-A23005-13
Explaining further, the trial court noted:
[First, i]n order for the jury to have returned a verdict on the
EWOC and conspiracy charges against [Appellant], the jury
needed to gain insight into what [Appellant] knew and what he
intended when he supervised Avery. [Appellant] did not concede
that he knew Avery to be a sexually abusive priest whose
presence at St. Jerome's jeopardized the safety of children;
therefore, the burden remained with the Commonwealth to
establish this critical element.
***
Second, the "other acts" evidence was the only way for the jury
to gain an understanding of [Appellant]'s thought process.
Common sense suggests that all people learn with experience.
The more information one acquires, the greater the perspective
that he/she may bring to bear upon decisions in the future.
[Appellant]'s study of the Secret Archives not only provided him
with the information needed to create several lists categorizing
the degree of sexual deviance of particular priests; it also taught
him how to identify sexually abusive priests, and how the
Archdiocese chose to deal with those individuals. It was then
incumbent upon [Appellant] to decide whether to perpetuate the
practices in place, or to instead take measures that protected
children. This Court found that providing the jury with a broad
picture of [Appellant]'s knowledge base — about the priests that
he managed as well as about the "system" that he inherited —
would assist the jury with its determination as to what was
actually in [Appellant]'s mind when he facilitated Avery's
placement and stay at St. Jerome's.
TCO, at 133-35.
Thus, the trial court characterized the probative value of this evidence
as ‘substantial.’ It is certainly the case that the volume of this evidence was
substantial. We are less convinced, however, that the nature of this
evidence was substantially probative of Appellant’s culpability for the actions
of Avery and Brennan.
- 17 -
J-A23005-13
First, the other-acts evidence in question covered a myriad of
circumstances that provided only a minimal degree of insight into Appellant’s
state of mind with respect to his dealings with Avery and Brennan. In this
regard, the trial court often overstates the case for the probative value of
the other-acts evidence under the rubric of fitting the “knowledge” exception
under Rule 404(b)(2). For instance, the trial court indicates that one of the
purposes of this evidence was to demonstrate Appellant’s knowledge “that
sexually abusive priests constituted a danger to children whenever there was
an opportunity for unsupervised contact[.]” TCO, at 143 (emphasis
omitted). To this end, the trial court cites a particular case where Appellant
had acknowledged that placing a priest, Father Thomas Wisniewski, at a
parish without a school was preferable to placing that priest at a parish with
a school, so as to limit the opportunity for contact with children. 6 Id. at
144. While this evidence, strictly speaking, may have tended to
demonstrate Appellant’s knowledge that child sexual predators should not be
allowed to be around children in unsupervised conditions, it does not follow
that such evidence was necessary, or even particularly helpful, to conveying
this point to the jury. Certainly a jury is capable of such common sense
conclusions in the absence of such evidence, and could have concluded,
____________________________________________
6
Appellant was aware at the time he made this statement that Father
Wisniewski had previously admitted to frequently having oral sex with a
minor high school student.
- 18 -
J-A23005-13
almost a priori, that any person of modest intelligence would recognize the
peril. Thus, while probative in the sense that it was somewhat relevant to
demonstrating Appellant’s knowledge, this evidence was not ‘substantially
probative,’ nor was it necessary or critical evidence of Appellant’s mens rea.
Illustrative of this point is Commonwealth v. Smith, 956 A.2d 1029
(Pa. Super. 2008). In that case, the appellant, who had severely injured his
infant son by shaking him, claimed that the Commonwealth failed to
demonstrate the “knowing” element of EWOC. He argued that he was at
most criminally negligent for endangering his son because he had not been
“instructed by his doctor about the dangers of Shaken Baby Syndrome.” Id.
We dismissed his sufficiency claim, stating:
It takes nothing more than common sense for an adult, let alone
an experienced father such as [the a]ppellant, to know that
violently shaking an infant child with enough force to cause an
abusive head trauma could threaten the child's physical and/or
psychological welfare. Thus, there was sufficient evidence to
support the jury's decision that Appellant knowingly violated a
duty of care, protection or support.
Id. at 1038-39. Likewise, in the instant matter, while the evidence
concerning Father Wisniewski may have tended to demonstrate Appellant’s
knowledge that sexual predators endanger children in unsupervised
conditions, common sense demonstrates that point with nearly equal vigor.
Neverthess, the disturbing facts of Father Wisniewski’s molestation of
children, which were not an issue at Appellant’s trial, were recounted before
Appellant’s jury so as to provide the necessary context for the admissible
evidence concerning Appellant’s “knowledge.”
- 19 -
J-A23005-13
Another basis cited by the trial court for the admission of the high
volume of prior acts evidence was to establish Appellant’s motive to protect
the Archdiocese’s reputation at the expense of the victims of clergy sexual
abuse. With reference to the motive exception to Rule 404(b), this Court
has held that:
The mere identification of similarities between the prior bad acts
and the crime at issue … does not establish motive. Instead, …
there must be a firm basis for concluding that the crime
currently on trial “grew out of or was in any way caused by the
prior set of facts and circumstances.”
Commonwealth v. Ross, 57 A.3d 85, 101 (Pa. Super. 2012) (internal
citation omitted).
The trial court admitted such ‘motive’ evidence regarding several
priests who were repeatedly transferred to different parishes after their
sexual abuse of minors came to light. See TCO, at 146-148. This evidence
included damning statements from Appellant’s predecessors concerning the
priorities of Archdiocese officials in dealing with sexual predators in the
Church. However, a substantial volume of this evidence concerned the bad
acts of priests, and the Archdiocese’s response thereto, that predated
Appellant’s tenure as Secretary by many years, and in some cases, decades.
Thus, even if this evidence tenuously provided the bare minimum degree of
probative value to meet the ‘motive’ exception to the Rule 404(b)
prohibition, it only did so by suggesting that Appellant followed the motives
of his predecessors, and not through Appellant’s own prior conduct.
Moreover, much of this evidence varied wildly in terms of its probative value.
- 20 -
J-A23005-13
The trial court summarizes some of this evidence as follows:
Immediately after accusations came to light in August 1964 that
Father Joseph Gausch found a boy at a local swimming pool,
took him to the rectory of Our Lady of Peace, and molested the
child, he was transferred to another parish. In early 1977,
Father Gausch admitted to having touched another boy, D.C., on
the "backside" and to having told him that he had a beautiful
body; within a month, Father Gausch was transferred to another
parish. Father Raymond Leneweaver, who had admitted to
engaging in a sexually abusive relationship with a student in
1968, was caught providing alcohol to students in June 1971.
By September of that year, Father Leneweaver was reassigned
as an assistant pastor at a different parish. In September 1980,
after Father Leneweaver admitted to abusing three others,
Monsignor Statkus assigned Father Leneweaver to St. Joseph's
the Worker in Bucks County, PA "because it is one of the few
remaining areas where his scandalous actions may not be
known." Towards the end of 1981, the pastor of St. Titus's
Parish in Norristown, PA informed the Archdiocese about the
possibility of "scandal in the parish" as a result of allegations
that Father Francis Trauger had sexually abused a boy named
S.K. Monsignor Statkus met with Father Trauger, who stated
that he had shared a bed with S.K. and massaged the boy's
"chest and back." Two days later, Father Trauger was
transferred to St. Matthew's Parish in Philadelphia, PA. In July
1977, Father Nicholas Cudemo was confronted with allegations
that he had a number of affairs with female minors, and may
have even impregnated one of them. Father Cudemo admitted to
being "attracted to younger girls," but denied wrongdoing.
Monsignor Statkus noted that he had reservations about
transferring Father Cudemo, as he had "been changed twice
previously to other high schools and yet the particular
friendships have continued." Nonetheless, Monsignor Statkus
transferred Father Cudemo to another parish roughly two
months later. Following Father Edward DePaoli's guilty plea to
receiving child pornography in federal court, Cardinal Bevilacqua
called Father DePaoli to his office for a meeting in May 1988;
Cardinal Bevilacqua told him it was "more advisable for [DePaoli]
to return to the active ministry in another diocese" and assisted
with Father DePaoli's placement in the Metuchen, NJ diocese.
TCO, at 14-48.
- 21 -
J-A23005-13
Appellant did interact with some of these priests during his own
tenure. However, Father Gausch was not in active ministry when Appellant
received new information in 1994 concerning Gausch’s previously unknown
molestation of a victim in the 1980’s, as Father Gausch had retired in 1992.
There is also no indication in the record that Appellant had a supervisory role
over Father Gausch when the priest was repeatedly reassigned to different
parishes in the 1960’s and 1970’s following allegations of sexual impropriety.
Thus, it cannot be fairly said from Appellant’s dealings with Gausch that
Appellant had exalted the Archdiocese’s reputation over an ongoing risk to
children, which ostensibly was the purpose for which this other-acts
evidence was admitted against him. At best, this evidence demonstrated
that Appellant valued the Archdiocese’s reputation over the value inherent in
exposing Father Gausch’s prior misdeeds. That motive only tenuously
relates to the distinct motive sought to be proven by the Commonwealth—
that Appellant actively exposed children to the risk of molestation so as to
protect the Archdiocese from scrutiny.
Indeed, it strains credulity to construe the crimes for which Appellant
was charged as having grown “out of” or as having been “caused by” the
Archdiocese’s prior dealings with Gausch. Ross, supra. Nevertheless, even
if the evidence concerning Father Gausch was properly construed as
probative as to motive (a highly questionable proposition), it was certainly
not highly or substantially probative of Appellant’s motive in dealing with
Avery and Brennan.
- 22 -
J-A23005-13
By contrast, Appellant’s dealings with Father Cudemo were more
relevant and probative of this motive. Appellant spent the better part of a
decade addressing accusations against Cudemo, and had concluded that
Father Cudemo was a diagnosed pedophile. TCO, at 32. Despite this,
Appellant, at the behest of or in conjunction with Cardinal Bevilacqua,
permitted Father Cudemo to perform public Mass as a retired priest “in good
standing,” and repeatedly misrepresented Father Cudemo’s past to
individuals who came forward with new allegations against the priest. Id.
Still, it not clear that Appellant’s current crimes grew “out of[,]” or were
“caused by[,]” Appellant’s prior dealings with Cudemo. Ross, supra.
This contrast between the evidence concerning Fathers Cudemo and
Gausch highlights a failure to distinguish between significantly probative and
minimally probative evidence. While the evidence concerning Father
Cudemo did serve to demonstrate motive, based on ostensibly similar
circumstances to Appellant’s dealings with Avery and Brennan, the evidence
concerning the Archdiocese’s dealings Father Gausch only tended to
demonstrate this in the most attenuated and remote fashion, if at all. And,
while more probative of Appellant’s motive than the evidence concerning
Father Gausch, it is a stretch to say the evidence concerning Father Cudemo
was “highly” probative of Appellant’s motive in this case. Despite some
similarities, Appellant’s experiences with Father Cudemo were far from
identical to his experiences with Avery and Brennan.
- 23 -
J-A23005-13
Relatedly, the trial court also allowed evidence of Appellant’s
predecessors’ overreliance on the diagnoses of psychiatric professionals:
[Appellant]'s predecessors required psychiatric professionals who
evaluated priests to relay their conclusions to the Archdiocese.
The Secret Archives revealed that [Appellant]'s predecessors
grounded their decisions about how to manage priests in the
conclusions offered by the Archdiocese's doctors, despite the fact
that their findings were often facially incredible.
TCO, at 152.
The probative value of a different Secretary’s dealings with an
unrelated priest’s (mis)diagnosis had, at best, a remote and vague bearing
on Appellant’s motive in this case. It again strains credulity that Appellant’s
crimes in this case grew “out of[,]” or were “caused by[,]” Appellant’s
predecessor’s overreliance on psychiatric professionals’ examinations of
priests other than Avery and Brennan. Ross, supra. The trial court’s own
understanding of the purpose of this evidence reveals that its introduction
was not even based directly upon Appellant’s own prior conduct, but instead
on his association with the Archdiocese:
[Appellant]'s predecessors might have created the impression
that the Archdiocese was acting responsibly, but blindly adopting
recommendations proffered after inadequate psychological
testing only helped sexually abusive priests to remain at large.
TCO, at 153.
The thread that connected these events to Appellant’s case was his
possession and control of the Secret Archive, which documented Appellant’s
predecessors’ mishandling of problematic priests within the Archdiocese.
However, evidence of Appellant’s predecessor’s overreliance on the
- 24 -
J-A23005-13
diagnoses of psychiatric professionals was purportedly offered to
demonstrate Appellant’s motive with respect to his failure to mitigate or
eliminate the risks posed by Avery and Brennan to children in the
Archdiocese. The conduct of different people in relation to different sexual
predators, different victims, and in different times, is on its face minimally
probative of this motive, if probative at all.
Also typical of this marginally probative other-acts evidence of motive
were the facts presented to the jury that were related to Father Leneweaver.
In 1968, Father Leneweaver admitted to Archdiocese authorities that he had
engaged in a two-year homosexual affair with a Catholic high school
student. Despite this behavior, he was not removed from his post at
Cardinal O’Hara High School.7 Three years later, the principal at Cardinal
O’Hara reported that Father Leneweaver had been supplying alcohol to
minors. As a result, in 1971, Father Leneweaver was reassigned to be an
assistant pastor at St. Monica’s Parish. By 1975, it came to light that Father
Leneweaver had engaged in sexual activities with three students at St.
Monica’s. He was given a leave of absence and evaluated by a psychiatrist
who ultimately concluded that Father Leneweaver showed no signs of a
serious mental disorder, and had merely acted out in reaction to difficulties
with his family. Father Leneweaver was subsequently reassigned, yet again,
____________________________________________
7
The student/victim was from a different Catholic high school.
- 25 -
J-A23005-13
to St. Agnes Parish, but without his new assignment being published. Five
years later, it came to light that Father Leneweaver had molested an eighth-
grade student at St. Agnes on multiple occasions. After confessing to these
acts, Father Leneweaver was sent for treatment at St. John Vianney. During
this time, Archdiocese authorities learned that Father Leneweaver was
visiting the homes of St. Agnes parishioners, including those with minor
children. Further investigation revealed that Father Leneweaver had made
sexual advances toward those children as well. After these events, Father
Leneweaver was again assigned to another Parish in Bucks County. With
regard to this assignment, the Chancellor of the Catholic Schools in the
Archdiocese told one of the doctors who had counseled Father Leneweaver
that the Bucks County assignment was made “because it is one of the few
remaining areas where his scandalous actions may not be known.” TCO, at
116 (quoting from Exhibit C-134, N.T., 3/29/2012, at 59). Ultimately,
Father Leneweaver himself requested a permanent leave of absence from
the Archdiocese in 1980, which apparently was granted.
Appellant placed Father Leneweaver on a list of priests who were
“Guilty of Sexual Misconduct with Minors” in 1994, based on Father
Leneweaver’s admissions in 1968, as recounted in the Secret Archive. In
1997, or thereabouts, Father Leneweaver requested to be reinstated in the
Archdiocese, and Appellant recommended to Cardinal Bevilacqua that Father
Leneweaver not be accepted back. In making this recommendation,
Appellant stated that Father Leneweaver presented too great a risk to “the
- 26 -
J-A23005-13
diocese, for the Bishop, for himself and the legal repercussions of having him
in ministry.” TCO, at 117 (quoting Exhibit C-152, N.T., 3/29/2012, at 78-
80).
The trial court admitted this evidence as probative of Appellant’s
motive to “[k]eep parishioners in the dark” about clergy sex abuse. Id. at
154. However, it again strains credulity to believe that Appellant’s criminal
conduct relating to Avery and Brennan grew “out of[,]” or was “caused
by[,]” Appellant’s limited dealings with Leneweaver. Appellant did not assist
Father Leneweaver in any way, did not appoint or recommend that he be
appointed to any position within the Archdiocese, and, in fact, Appellant
recommended that Father Leneweaver not be permitted to return to the
Archdiocese in any capacity. Thus, the likelihood that Appellant’s current
crimes grew “out of[,]” or were “caused by[,]” the facts concerning Father
Leneweaver is virtually nil. Ross, supra. While Appellant’s
recommendation to not permit Father Leneweaver to return may have been
callous with respect to the threat his return might present to potential
victims, it is clear that this evidence was, at best, of trivial probative value
as to Appellant’s motive with regard to the offenses concerning Avery and
Brennan.
Although the preceding evidence is largely representative of the other-
acts evidence at issue, the magnitude of the other-acts evidence at issue is
so large that further consideration of its probative value is impractical, as
additional analysis could easily consume dozens if not hundreds of additional
- 27 -
J-A23005-13
pages. Having thoroughly reviewed this evidence, however, we can
confidently conclude that the trial court’s description of this evidence as
being “highly probative” of Appellant’s mens rea with respect to crimes
related to Avery and Brennan is a substantial overstatement that risks
mischaracterizing the nature of the specific evidence actually introduced.
Some of this evidence, including but not limited to the examples cited
above, is only marginally probative of any Rule 404(b)(2) category. None of
the evidence concerned the actual victim(s) in this case, and none of it
directly concerned Appellant’s prior dealings with either Avery or Brennan.
In this regard, the trial court has apparently mistaken quantity for quality in
construing the probative value of this evidence en masse. Consequently, we
disagree with the trial court’s characterization, and conclude instead that,
while some of this evidence was probative of Appellant’s mens rea vis-à-vis
the various Rule 404(b)(2) categories, the probative value of significant
quantities of this evidence was trivial or minimal.
Potential Prejudice of the Other-Acts Evidence
Merely crossing the threshold of demonstrating that other-acts
evidence was probative of some Rule 404(b)(2) category does not, by itself,
demonstrate admissibility. “In a criminal case this evidence is admissible
only if the probative value of the evidence outweighs its potential for unfair
prejudice.” Pa.R.E. 404(b)(2) (emphasis added). In this context, “‘[u]nfair
prejudice’ means a tendency to suggest decision on an improper basis or to
- 28 -
J-A23005-13
divert the jury's attention away from its duty of weighing the evidence
impartially.” Commonwealth v. Dillon, 925 A.2d 131, 141 (Pa. 2007).
Often cited in conjunction with this balancing test, as invoked by the
trial court in this case, is our Supreme Court’s elucidation on the topic of
prejudice in Commonwealth v. Lark, 543 A.2d 491 (Pa. 1988):
Not surprisingly, criminal defendants always wish to excise
evidence of unpleasant and unpalatable circumstances
surrounding a criminal offense from the Commonwealth's
presentation at trial. Of course, the courts must make sure that
evidence of such circumstances have some relevance to the case
and are not offered solely to inflame the jury or arouse prejudice
against the defendant. The court is not, however, required to
sanitize the trial to eliminate all unpleasant facts from the jury's
consideration where those facts are relevant to the issues at
hand and form part of the history and natural development of
the events and offenses for which the defendant is charged, as
appellant would have preferred.
Id. at 501.
Naturally, as the Lark Court suggests, relevant evidence of Appellant’s
culpability for the charged offenses should not be excluded merely because it
tends to demonstrate his guilt. However, our Supreme Court has also
advised that, “to be admissible under the [motive] 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.’” Commonwealth
v. Roman, 351 A.2d 214, 218-19 (Pa. 1976) (emphasis added). Thus, we
must not forget that the rule being applied is that other-acts evidence is by
default inadmissible unless a Rule 404(b)(2) category or similar justification
- 29 -
J-A23005-13
applies, and the probative value of that evidence outweighs its potential for
prejudice. The burden is on the party seeking admission to demonstrate the
applicability of the exception to the general rule; in this case, that burden
fell on the Commonwealth. There is no presumption of admissibility of
other-acts evidence merely because it is somewhat relevant for a non-
propensity purpose.
The context of the Lark Court’s warning is relevant to the balancing
test in the instant case. In Lark, the appellant disputed the propriety of
trying him jointly for multiple offenses, claiming that the crimes “were not of
a similar character and had not arisen from a single criminal transaction, and
that he would be unduly prejudiced by consolidation of these offenses at
trial.” Lark, 543 A.2d at 496. The Lark court determined that Lark was not
unduly prejudiced by consolidation based on the following facts: Lark had
robbed the victim at gunpoint, but was immediately apprehended thereafter.
The day before that victim was scheduled to testify against Lark at the
preliminary hearing for the robbery, the victim was murdered at his place of
business. Witnesses testified that Lark had made statements while out on
bail for the robbery indicating his intent to kill the victim before he was
allowed to testify, and that, after the killing, Lark had bragged about it.
Evidence also demonstrated that Lark later threatened both prosecutors and
detectives involved in the robbery and murder cases.
Thus, in Lark, the other-acts evidence at issue directly involved Lark’s
attempt to cover his tracks following his robbery of the victim, which
- 30 -
J-A23005-13
manifested with the murder of the victim and the multiple threats issued to
the various authorities who were attempting to bring him to justice. Thus,
the facts that constituted the multiple crimes for which Lark was jointly tried
were inextricably intertwined. Lark’s first crime was the direct impetus that
motivated each subsequent crime. Notably, all of the other-acts/other-
crimes evidence at issue in Lark related directly to Lark’s own aberrant
behavior. Moreover, a substantial portion of other-acts evidence at issue in
Lark directly provided the factual basis for the charged offenses for which
Lark was being jointly tried.
Appellant’s mishandling of priests other than Avery and Brennan, who
molested different children, and in different circumstances, was not clearly
within the web of facts pertaining to Appellant’s misconduct with Brennan
and Avery. This is true regardless of whether his actions in those other
cases tended to speak to an overarching motive to protect the Church
and/or Archdiocese from ill-repute at the expense of the safety of children in
the Archdiocese. Moreover, the other-acts evidence that did not relate to
Appellant’s prior conduct, but instead to the conduct of his predecessors,
was not at all within the web of facts that pertained to Appellant’s
mishandling of Avery and Brennan.
Notably, the trial court spends virtually no time addressing the
prejudicial value of the copious amounts of other-acts evidence at issue in
this case. After discussing the probative value of this evidence at great
length, see TCO, at 132-180, the trial court summarily concludes that any
- 31 -
J-A23005-13
such prejudice was outweighed by its probative value, id. at 180. Therefore,
in more than 160 pages discussing other-acts evidence (110 plus pages
summarizing the other-acts evidence, and 50 plus pages of analysis), the
trial court dedicated precisely one sentence to discussing the potential for
that evidence to prejudice Appellant.
Nevertheless, we conclude that the potential for unfair prejudice was
great when the court admitted evidence of the sexual molestation of children
at the hands of sexually deviant priests other than those directly at issue in
the case at hand. When that evidence involved acts that occurred long
before Appellant bore any responsibility for problematic priests within the
Archdiocese, the potential for unfair prejudice was even greater.
By Appellant’s calculation, the presentation of this contested evidence
consumed more than three-quarters of his trial (25 of 32 days)—an estimate
undisputed by the Commonwealth and, by our own estimation, a reasonably
accurate representation of the bulk of Appellant’s trial. Indeed, this
imbalance is also reflected in the trial court’s summary of the evidence. The
court’s summary of facts pertaining to Appellant’s handling of Avery
encompasses approximately 17 pages of the court’s Rule 1925(a) opinion,
see TCO, at 2-18, while the court’s summary of the other-acts evidence
- 32 -
J-A23005-13
consumes nearly 113 pages of that same opinion, see TCO, at 20-132.8
Thus, regarding the trial court’s summary of the facts adduced at Appellant’s
trial, more than 85% of that summary concerns the acts of, and the
Archdiocese’s response to, priests other than Avery and Brennan. By any
formulation, therefore, it is clear that the vast majority of evidence offered
by the Commonwealth against Appellant concerned his handling of sexually
abusive priests in cases not directly related to the offenses for which he was
tried or, in some cases, the activities of sexually abusive priests who were
predominately handled by Appellant’s predecessors.
We recognize that our Supreme Court has suggested that a high
volume of potentially prejudicial, other-acts evidence is not, by itself,
grounds for excluding it. In Commonwealth v. Boczkowski, 846 A.2d 75
(Pa. 2004), the appellant was convicted of murdering his wife, Maryann, by
strangulation. The circumstances of Maryann’s death suggested that, after
strangling her, the appellant had staged the scene to make it appear as if
she had drowned in their hot tub. On appeal, the appellant argued that he
was unduly prejudiced by the Commonwealth’s presentation of other-acts
evidence concerning the suspicious death of his former wife, Elaine, who had
____________________________________________
8
This latter figure does not include the trial court’s legal analysis concerning
the admission of the ‘other acts’ evidence, which required an additional 49
pages in its opinion. See TCO, at 132-180.
- 33 -
J-A23005-13
been found dead in a bathtub just four years prior to the death of his current
wife, under remarkably similar circumstances.
The appellant in Boczkowski did not dispute that this evidence could
be admitted for limited purposes (motive, lack of mistake, etc.) under Rule
404(b)(2). Instead, he argued that the “sheer volume of the testimony
concerning Elaine's death was … an abuse of the trial court's discretion.”
Boczkowski, 846 A.2d at 93. In this regard, the appellant highlighted that
“‘twenty-one percent’ of the Commonwealth's witnesses testified exclusively
about Elaine's death in North Carolina, while a number of the witnesses who
testified regarding Maryann's murder also testified about Elaine's murder.
[The a]ppellant calculate[ed] that ‘fifty-two percent’ of the Commonwealth's
witnesses testified in whole or in part about Elaine's death.” Id.
Our Supreme Court rejected this claim—not by disputing the assertion
that a high volume could influence the balancing of probative value versus
potential for prejudice of other-acts evidence—but by noting the focused
nature of that evidence and the presence of cautionary instructions.9
Notably, despite the high volume of that evidence and the high potential for
prejudice, that evidence focused on a single prior bad act—the killing of the
____________________________________________
9
The evidence had also conformed to a previous decision of the Superior
Court addressing the Commonwealth’s interlocutory appeal from a pre-trial
order that had precluded the Elaine-related evidence on the basis that it was
not admissible to show lack of mistake in the Commonwealth’s case-in-chief.
The trial court had initially ruled that evidence of lack of mistake was only
admissible to rebut a defense that her death was accidental.
- 34 -
J-A23005-13
appellant’s previous wife—in virtually identical circumstances as the offense
for which the appellant was being tried. Thus, while evidence of the
appellant’s prior wife’s suspicious death may have been highly prejudicial in
a general sense, both in that it qualitatively described the details of a prior
suspicious death and quantitatively made up a substantial portion of the
Commonwealth’s case, that prejudice was not unfair precisely because it was
profoundly relevant to prove motive, absence of mistake, or lack of accident,
given the substantial similarities between the two deaths.
By contrast, in the instant case, the high volume of prejudicial other-
acts evidence involved Appellant’s supervision of other priests with varying
psychiatric diagnoses, priests who committed crimes or bad acts in a wide
variety of different circumstances, against different types of victims and, in
some cases, which did not even involve Appellant’s prior acts at all, but
instead those of his predecessors. This was not a case like Boczkowski
where the jury was provided a significant volume of facts that constituted
contextual details concerning a single prior bad act, and one which was
nearly identical to the crime for which the appellant was being tried.
Instead, there were numerous prior bad acts introduced in this case that
varied greatly in their relevance to the purpose for which they were
admitted. Thus, it is not just the volume of other-acts evidence that is
notably greater than was at issue in Boczkowski, the other-acts evidence in
this case was, by and large, not nearly as probative of or relevant to the
Rule 404(b)(2) exceptions under which it was admitted.
- 35 -
J-A23005-13
The trial court indicates that any unfair prejudice in this case was
adequately mitigated by the court’s cautionary instructions, and that the
split verdict indicates that the jury was able to carefully consider the
evidence for its proper purpose. The Commonwealth agrees, arguing that
any undue prejudice was harmless because it was “eliminated by the court’s
limiting instructions.” Commonwealth’s Brief, at 42. As proof of this, the
Commonwealth directs our attention to the fact that Appellant was acquitted
“of three of the four offenses charged[,]” id. at 43, an argument that
dovetails with the trial court’s own analysis, see TCO, at 137-38.
First, we reject the notion that the jury’s verdict, by itself, is
particularly strong or useful evidence that the trial court’s instructions
effectively eliminated all or most of the unfair prejudice that resulted from
the admission of vast quantities of other-acts evidence. A different narrative
could easily be constructed to suggest just the opposite conclusion: that the
evidence of Appellant’s guilt was demonstrably weak by virtue of the three
acquittals, and that the single conviction reflected the effect of the unduly
prejudicial evidence—or that it reflected the jury’s intent to punish Appellant
as a scapegoat for the policies of the Archdiocese, despite having concluded
that his culpability for these specific offenses was not proven beyond a
reasonable doubt. However, rather than adopting any of these narratives, it
is preferable judicial policy to avoid such speculation. This Court is ill-suited
to the task of reading the minds of twelve jurors so as to ascertain why they
chose to acquit Appellant of some charges but not others, and it is beyond
- 36 -
J-A23005-13
our province to engage in such speculation in any event. Instead, our
evaluation must center on whether the trial court abused its discretion when
it was asked to determine whether “the probative value of the evidence
outweighs its potential for unfair prejudice.” Pa.R.E. 404(b)(2) (emphasis
added).
The trial court cites Commonwealth v. Williams, 9 A.3d 613 (Pa.
2010), to suggest that it may evaluate the jury verdict to assess the balance
between the probative value and potential prejudice of the at-issue prior-
acts evidence. See TCO, at 137-138. Notably, the quoted language in the
trial court’s opinion does not even appear in that case, although the
Williams Court did opine on the topic of prejudice. Nevertheless, Williams
does not stand for the proposition that we may, on direct review, rely upon
the jury verdict to determine whether jury instructions were sufficient to
mitigate unfair prejudice resulting from the admission of copious amounts of
other-acts evidence. Indeed, the Williams Court did not engage in the
balancing test that is at issue with regard to the admission of other-acts
evidence under Rule 404 at all, but instead dealt with the prejudice prong of
ineffectiveness of counsel claim. The prejudice standard on direct review of
claims of evidentiary error is not as strict as that which is required for
proving ineffectiveness claims on collateral review. As our Supreme Court
has explained:
Derivative claims of ineffective assistance of counsel are
analytically distinct from the defaulted direct review claims that
were (or could have been) raised on direct appeal.
- 37 -
J-A23005-13
Commonwealth v. Collins, 585 Pa. 45, 888 A.2d 564, 572–73
(2005). As noted, Strickland [v. Washington, 466 U.S. 668
(1984),] requires a showing of actual prejudice, not the
presumed prejudice arising from [United States v.] Cronic[,
466 U.S. 648 (1984)], nor the harmless error standard that
governs ordinary claims of trial court error on direct review, nor
the presumption of harm arising on direct review [certain
claims]. This Court has long recognized the distinction between
Strickland prejudice and the harmless error standard applicable
in the direct review context, and this distinction can be outcome-
determinative. See, e.g., Commonwealth v. Howard, 538 Pa.
86, 645 A.2d 1300, 1307 (1994).
Commonwealth v. Reaves, 923 A.2d 1119, 1130 (Pa. 2007).
Here, we review the trial court’s evidentiary decision for its potential to
cause unfair prejudice in relation to the probative value of that evidence, not
for actual prejudice as is required to assess derivative claims on collateral
review. In light of this distinction, the jury’s verdict tells us very little about
whether it was able to dutifully sort through the barrage of other-acts
evidence in accordance with the trial court’s cautionary instructions.
Second, we disagree that the trial court’s limiting/cautionary
instructions eliminated the potential for unfair prejudice. The trial court
indicates that it instructed the jury “on nine different occasions about the
limited scope for which the ‘other acts’ evidence could be considered.” TCO,
at 136. The court went on say:
Each charge was the same or a very slight variation on what this
Court stated on March 29, 2012:
Good morning, ladies and gentlemen. I'm going to give
you this morning, and I will give you through the trial this
same or similar instruction. It's called a cautionary
charge. It just alerts you about how you should handle or
accept certain evidence. You will hear evidence concerning
- 38 -
J-A23005-13
alleged improper behavior up to and included [sic] the
alleged sexual abuse of children by priests other than what
has been alleged as to Edward Avery and James Brennan.
In some of these cases, Defendant Lynn handled these
allegations personally and documented his actions and
recommendations in memorandum — or I guess
memoranda, since it's plural.
As regards [sic] to other cases, he reviewed documents
pertaining to these allegations in files kept in the Secret
Archives of the Archdiocese of Philadelphia. This so-called
other-acts evidence is being admitted for limited purposes.
The Commonwealth may introduce evidence relating to
Defendant Lynn's handling of or knowledge about
accusations made against priests other than Edward Avery
and James Brennan for the following purposes:
1. To assist the jury in assessing motive, opportunity,
intent, preparation, plan, knowledge or absence of mistake
or accident.
2. To allow the jurors to understand the complete story so
they can draw the proper inferences from the evidence.
3. To demonstrate that Defendant Lynn's actions in this
case were part of a common plan, scheme and design.
4. To demonstrate the relationship between Defendant
Lynn, other Archdiocese officials, and accused priests in
order to allow the jury to determine whether Defendant
Lynn participated in a conspiracy to endanger children
supervised by Edward Avery and James Brennan.
Of course, it is for you and you alone, you the jurors, to
determine whether you believe this evidence, and if you do
believe it, whether you accept it for the purpose proffered
or offered to you. You may give it such weight as in your
judgment it deserves, but only for the limited purposes
that I have just described for you. Defendant Monsignor
Lynn is not on trial for committing or conspiring to commit
any of the acts attributed to other priests other than what
is alleged as to Edward Avery and James Brennan, and is
not on trial for endangering the welfare of any of the
children allegedly abused or molested by priests other than
Edward Avery and James Brennan. You may not consider
the evidence of these other acts as a substitute for proof
- 39 -
J-A23005-13
that Defendant Monsignor Lynn committed the crime of
endangering the welfare of children supervised by Edward
Avery and James Brennan.
You may not consider this evidence as proof that
Defendant Monsignor Lynn has a bad character or any
propensity to commit crimes. Remember that Defendant
Monsignor Lynn is on trial here because he has been
accused of endangering the welfare and conspiring with
others to endanger the welfare of children that were
supervised by Edward Avery and James Brennan, not for
these other acts. So I just wanted you to be aware of that
so that you can have it in the proper context. I will give
you this repeatedly throughout the trial because a great
deal of the evidence that you are hearing concerns these
other matters and not the actions as are alleged against
Edward Avery and James Brennan. Thank you.
N.T. 3/29/2012 at 22-25.
TCO, at 136-37.
We must assess the effect of these cautionary instructions in the
context of this case. We begin with the presumption that a jury follows the
curative instructions of the trial court. Commonwealth v. Hairston, 84
A.3d 657, 666 (Pa. 2014) (“Jurors are presumed to follow the trial court's
instructions.”). However, this presumption is not unassailable. Our
Supreme Court has indicated that “when examining the potential for undue
prejudice,” in the context of Rule 404, “a cautionary jury instruction may
ameliorate the prejudicial effect of the proffered evidence.” Id. (emphasis
added). In the exceptional circumstances of this case, we conclude that this
presumption has been overcome by the varied and often questionable
probative value of the admitted other-acts evidence, its significant potential
- 40 -
J-A23005-13
for unfair prejudice, and, importantly, the vast quantity of other-acts
evidence that the jury was asked to evaluate.
In this regard, although the trial court issued some variation of the
above instruction on multiple occasions, we do not believe the instruction
carried the same weight that it would have carried in relation to more
focused and less voluminous other-acts evidence. The other-acts evidence
dominated Appellant’s trial to such a degree that we are unable to conclude
that the jury could have dutifully followed the court’s instructions, which
effectively demanded that the jury ignore the elephant in the room. The
elephant being the tendency of the other-acts evidence to suggest that
Appellant had the general propensity to coddle sexual predators based on
facts not directly related to the crimes for which he was being tried. While
the jury might reasonably be expected to follow such instructions in normal
circumstances, the high volume of other-acts evidence involved in this case,
coupled with is high potential for prejudice and minimal probative value,
made such an expectation unreasonable.
Neither the trial court nor the Commonwealth cite to any case where
this presumption was applied in circumstances substantially similar to the
instant case in terms of the quantity and quality of the at-issue other-acts
evidence. Likewise, nowhere in our review of the numerous cases applying
the aforementioned presumption have we found a case where the
presumption was applied in such exceptional circumstances. As discussed
above, in Boczkowski, the volume of prior-acts evidence was high, but the
- 41 -
J-A23005-13
scope of that evidence concerned only a single prior bad act—the
defendant’s ostensible/alleged killing of his former wife. Our Supreme Court
indicated in that case that “the court's repeated cautionary charges
concerning the limited purpose of the evidence served to minimize any
potential for unfair prejudice.” Boczkowski, 846 A.2d at 93. In the
instant, case, however, the volume of other-acts evidence was much higher,
and its scope spanned decades of prior bad acts committed within and by
the Archdiocese, much of which had little to do with Appellant’s supervision
of Avery and Brennan. The jury’s ability to apply the court’s instructions
dutifully to such a high volume of other-acts evidence was likely to be
significantly hampered. Thus, we reject the trial court’s conclusion, as well
as the Commonwealth’s corresponding argument, that any unfair prejudice
resulting from the admission of other-acts evidence in this case was
ameliorated by the court’s cautionary instructions.
In sum, we conclude that the probative value of the individual portions
that made up the large quantity of other-acts evidence in this case differed
greatly. A limited portion of that evidence was substantially relevant to, or
probative of, permitted uses under Rule 404(b)(2), but far more was only
marginally relevant for such purposes. The potential for this evidence to
unfairly prejudice Appellant was high, both because it involved the sexually
abusive acts of numerous priests committed against children over several
decades, and because of the high volume of the evidence admitted.
Therefore, we conclude that the probative value of that evidence, in toto, did
- 42 -
J-A23005-13
not outweigh its potential for unfair prejudice, and that this potential
prejudice was not overcome by the trial court’s cautionary instructions.
Consequently, we hold that the trial court abused its discretion in its
application of Rule 404(b)(2). As our judgement requires that Appellant
receive a new trial, we decline to address Appellant’s remaining claims of
error.
Judgment of sentence vacated. Case remanded for a new trial.
Jurisdiction relinquished.
Judge Musmanno joins this memorandum.
Judge Donohue files a concurring and dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2015
- 43 -