Com. v. Reed, J.

J-S34020-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JERRY ALLEN REED
Appellant No. 2023 MDA 2014
Appeal from the Judgment of Sentence September 5, 2014
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0000323-2014
CP-36-CR-0005013-2012
BEFORE: BOWES, J., OTT, J., and STABILE, J.
MEMORANDUM BY OTT, J.: FILED SEPTEMBER 09, 2015
Jerry Allen Reed appeals the judgment of sentence entered September
5, 2014, in the Lancaster County Court of Common Pleas, made final by the
denial of post-sentence motions on October 1, 2014. Reed was charged with
multiple offenses in two separate informations for the sexual assault of his
minor daughter, A.G., which are as follows: (1) the charges at Docket No.
323-2014, arose from sexual acts that occurred in 2007, when A.G. was 14
years old; and (2) the charges at Docket No. 5013-2012, arose from sexual
acts that occurred in 2010, when A.G. was 17 years old. After a jury found
Reed guilty of all charges, the trial court imposed an aggregate sentence of
21 to 50 years’ imprisonment. On appeal, Reed challenges the trial court’s
ruling permitting the Commonwealth to introduce evidence of prior bad acts,
J-S34020-15
and the court’s denial of his motion to sever the cases for trial. Based on
the following, we affirm.
The facts underlying this appeal are as follows. Reed is the uncle of
K.G., the mother of A.G., who is the victim in the present case. K.G. claims
that Reed raped her twice, the first time in 1980, when she was 16 years
old, and the second time in 1992, when she was 28 years old. The first
incident occurred at her parents’ home in Reading, Pennsylvania, when she
was home alone. K.G. contends Reed entered the house without her
knowledge or consent, and “engaged in sexual intercourse with [her] against
her will.” Trial Court Opinion, 10/31/2014, at 15. Although she told her
mother about the incident, no criminal investigation was conducted. The
second incident occurred at Reed’s home in Lancaster, Pennsylvania. K.G.
claims she met with Reed to discuss her father (Reed’s brother), but he
“grabbed hold of her and forcibly engaged in sexual intercourse with her.”
Id. at 15. Again, K.G. did not report the incident to police. However, as a
result of the second rape, she became pregnant with A.G. A.G. is, therefore,
both Reed’s daughter and great-niece.1
The charges herein arose from Reed’s sexual abuse of A.G. in July of
2007 and November of 2010. The charges at Docket No. 323-2014, resulted
from the following incident:
____________________________________________
1
Reed does not dispute he is the father of A.G. N.T., 4/29/2014, at 345.
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[O]n July 1, 2007, at 10:30 p.m., [Reed] told A.G., then 14
years old, to go to his garage located to the rear of the home,
and she complied.4 Once inside the garage, [Reed] exposed his
penis, told her to grasp it and she did. [Reed] then told A.G. to
perform oral sex on him but she refused. A.G.’s two brothers
and a friend observed what was going on in the garage through
a peephole and banged on the door until [Reed] allowed A.G. to
exit the garage. A.G. allegedly did not know [Reed] was her
father at that time, although [Reed] knew A.G. was his
daughter. No criminal charges were filed against [Reed] at that
time.
__________
4
The evidence suggests that the victim, A.G., had some mental
deficiencies. [The parties stipulated at trial that A.G. “has an IQ
of 69 and functions at a range of mild mental retardation.” N.T.,
4/28/2014, at 73.].
Trial Court Opinion, 10/31/2014, at 2 (record citations omitted). Although
A.G., accompanied by her mother, K.G., reported the incident to police, the
investigation was initially closed after A.G. repeatedly failed to appear for a
forensic interview. Id. at 11.
The charges at Docket No. 5013-2012, resulted from an assault that
occurred in November of 2010. The trial court summarized the
circumstances regarding this incident as follows:
In November 2010, K.G. and her family were living in a motel in
Lancaster. A.G. had gone to Florida to visit her sister. At the
time, she had her 18-month-old daughter with her. When she
returned from Florida in November of 2010, [Reed] picked her
and her daughter up at the Philadelphia Airport and took them
back to his apartment [in] Lancaster City. [A.G.] and her
daughter spent the next two weeks at [Reed’s] home during
which time he forcibly engaged in sexual intercourse with A.G.
six or seven times, at least once while her young child was in the
room. [Reed] held A.G. down, and she could not move or get
up, although she screamed. Fear kept [A.G.] from telling
anyone about what was going on. A.G. eventually called her
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mother who took A.G. and her child to live with her [when she
moved from the hotel into a house].
A.G. discovered she was pregnant in December 2010.
After contacting the police, A.G. underwent a forensic
examination at Lancaster County Children’s Alliance on
December 14, 2010, where she revealed the sexual abuse
perpetrated upon her by [Reed] between November 15, 2010,
and November 29, 2010. However, A.G. was initially reluctant
to press charges against [Reed]. With the birth of her second
child, C.G., on August 2, 2011, and a confirmed paternity test
showing [Reed], her father/great-uncle as the father of that
child,13 A.G. decided she “had to get something done about it.”
__________
13
Forensic scientist and paternal DNA analyst Season Elizabeth
Seferyn testified that she tested the buccal swab samples from
[Reed], the victim, A.G., the victim’s mother K.G., and the
victim’s daughter, C.G. Ms. Seferyn concluded that [Reed] is the
biological father of A.G. and C.G. … The relative probability of
paternity for each is 99.9999%.
Id. at 11-12 (record citations and some footnotes omitted).
On August 21, 2012, Reed was charged, at Docket No. 5013-2012,
with rape, incest, sexual assault, unlawful contact with minor, and corruption
of minors2 for the incident that occurred in November of 2010. Thereafter,
on December 18, 2013, Reed was charged, at Docket No. 323-2014, with
attempted involuntary deviate sexual intercourse, unlawful contact with a
minor, indecent assault, corruption of minors and indecent exposure3 for the
____________________________________________
2
18 Pa.C.S. §§ 3121(a)(1), 4302, 3124.1, 6318, and 6301, respectively.
3
18 Pa.C.S. §§ 901 and 3123, 6318, 3126(a)(8), 6301, and 3127,
respectively.
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incident that occurred in July of 2007. On February 12, 2014, the
Commonwealth filed notice of its intent to consolidate the cases for trial.
Relevant to this appeal, in October 2013 and January 2014, the
Commonwealth filed three separate notices of its intent to introduce
evidence of Reed’s prior bad acts. Specifically, the Commonwealth intended
to present evidence of (1) Reed’s alleged sexual assault of K.G. in 1980 and
1992, (2) Reed’s alleged sexual assault of another niece, D.B., when she
was eight to 14 years old,4 and (3) Reed’s alleged sexual assault of the
victim, A.G., when she was five years old.5 See Commonwealth’s
Memorandum of Law in Support of its Rule 404(b) Motions, 4/7/2014, at 2-
4. In response, on February 20, 2014, Reed filed a motion in limine seeking
to exclude this evidence. Additionally, Reed filed another pre-trial motion
that same day seeking both suppression of statements he made to police,
and severance of the cases for trial. Following a March 28, 2014, hearing on
all of the pre-trial motions, the court denied Reed’s request to suppress
evidence and sever the cases for trial. However, the trial court directed the
____________________________________________
4
The assault of D.B. led to criminal charges against Reed. However, after a
trial resulted in a hung jury, Reed was not re-tried. See Commonwealth’s
Notice of Intent to Introduce Evidence of Prior Bad Acts, 1/14/2014, at ¶ 4.
5
The Commonwealth averred that when A.G. was five years old, she
reported to her grandmother that Reed had “touched her ‘coochie’ (vaginal
area).” Trial Court Opinion, 10/31/2014, at 17. Although the incident was
reported to the Children and Youth Agency, no criminal charges were filed.
Id.
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parties to submit briefs on the issue of the admissibility of prior bad acts
evidence. Thereafter, on April 17, 2014, the court entered an order denying
in part and granting in part Reed’s motion in limine. Specifically, the court
ruled that evidence of Reed’s prior sexual assault of K.G. and A.G. would be
admissible in the Commonwealth’s case-in-chief. However, with regard to
Reed’s prior assault of D.B., the court ruled that the evidence would not be
admissible in the case-in-chief, but reserved judgment on whether the
evidence might be admissible in rebuttal. See Order, 4/17/2014.
The cases proceeded to a jury trial in April of 2014. On April 29, 2014,
the jury returned a verdict of guilty on all charges. The trial court,
thereafter, directed that Reed undergo an assessment by the Sexual
Offenders Assessment Board (“SOAB”) to determine whether he met the
criteria for classification as a sexually violent predator (“SVP”) under the
Sexual Offenders Registration and Notification Act (“SORNA”), 42 Pa.C.S. §§
9799.10-9799.14.
On September 5, 2014, the trial court held a combined SVP/sentencing
hearing. After considering testimony by the SOAB evaluator, the court first
determined that Reed met the criteria for classification as a sexually violent
predator. Next, the court proceeded to sentence Reed to an aggregate term
of 21 to 50 years’ imprisonment.6 Reed filed a timely post-sentence motion,
____________________________________________
6
At Docket No. 5013-2012, the court imposed a sentence of eight and one-
half to 20 years’ imprisonment for the charge of rape and a consecutive term
(Footnote Continued Next Page)
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in which he challenged both the weight and sufficiency of the evidence, as
well as the court’s denial of his pre-trial motions, and requested modification
of his sentence. By order entered October 31, 2014, the court denied Reed’s
post-sentence motion, and this timely appeal followed.7
Reed’s first issue on appeal challenges the trial court’s denial of his
motion in limine to preclude evidence of his purported prior assault of K.G.8
_______________________
(Footnote Continued)
of five to 10 years’ imprisonment for the charge of incest. Additionally, the
court imposed concurrent sentences of eight and one-half to 20 years for
unlawful contact with minors and one and one-half to five years for
corruption of minors. The sexual assault charge merged for sentencing
purposes.
At Docket No. 323-2014, the court imposed concurrent sentences of
seven and one-half to 20 years’ imprisonment for attempted IDSI, seven
and one-half to 20 years’ imprisonment for unlawful contact with minors,
one to two years for indecent assault, one and one-half to five years for
corruption of minors, and one to five years for indecent exposure. The court
further directed that the charges at each docket run consecutive to one
another.
7
On November 24, 2014, the trial court ordered Reed to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Reed complied with the court’s directive and filed a concise statement on
December 15, 2014. Thereafter, the court entered a Rule 1925(a) opinion
relying on its October 31, 2014, opinion that denied Reed’s post-sentence
motions.
8
Although Reed also challenges the court’s ruling permitting evidence
regarding the alleged sexual assault on A.G. when she was five years old, as
the Commonwealth notes in its brief, no evidence or testimony regarding
that incident was presented at trial. Accordingly, Reed cannot demonstrate
that he was harmed by the court’s pretrial ruling, and we need not address
this claim on appeal.
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Our review of an evidentiary claim is well-established:
Admission of evidence rests within the discretion of the trial
court, and we will not reverse absent an abuse of discretion.
“Discretion is abused when the course pursued represents not
merely an error of judgment, but where the judgment is
manifestly unreasonable or where the law is not applied or
where the record shows that the action is a result of partiality,
prejudice, bias or ill will.”
Commonwealth v. Kinard, 95 A.3d 279, 284 (Pa. Super. 2014) (en banc)
(internal citations omitted).
Pennsylvania Rule of Evidence 404(b) prohibits evidence of a
defendant’s prior bad acts “to prove a person’s character” or demonstrate
“that on a particular occasion the person acted in accordance with the
character.” Pa.R.E. 404(b)(1). Nevertheless, the Rule further provides that
prior bad acts evidence “may be admissible for another purpose, such as
proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident. In a criminal case, this evidence is
admissible only if the probative value of the evidence outweighs its potential
for unfair prejudice.” Pa.R.E. 404(b)(2).
Where, as here, the prior bad acts evidence is proffered under the
common plan or scheme exception, we must bear in mind the following:
When ruling upon the admissibility of evidence under the
common plan exception, the trial court must first examine
the details and surrounding circumstances of each criminal
incident to assure that the evidence reveals criminal
conduct which is distinctive and so nearly identical as to
become the signature of the same perpetrator. Relevant
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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. Given this initial
determination, the court is bound to engage in a careful
balancing test to assure that the common plan evidence is
not too remote in time to be probative. If the evidence
reveals that the details of each criminal incident are nearly
identical, the fact that the incidents are separated by a
lapse of time will not likely prevent the offer of the
evidence unless the time lapse is excessive. Finally, the
trial court must assure that the probative value of the
evidence is not outweighed by its potential prejudicial
impact upon the trier of fact. To do so, the court must
balance the potential prejudicial impact of the evidence
with such factors as the degree of similarity established
between the incidents of criminal conduct, the
Commonwealth’s need to present evidence under the
common plan exception, and the ability of the trial court to
caution the jury concerning the proper use of such
evidence by them in their deliberations.
Commonwealth v. G.D.M., Sr., 926 A.2d 984, 987 (Pa. Super.
2007), appeal denied, 596 Pa. 715, 944 A.2d 756 (2008)
(quoting Commonwealth v. Smith, 431 Pa.Super. 91, 635
A.2d 1086, 1089 (Pa. Super. 1993)).
Although “remoteness in time is a factor to be considered in
determining the probative value of other crimes evidence under
the theory of common scheme, plan or design, the importance of
the time period is inversely proportional to the similarity of the
crimes in question.” Commonwealth v. Aikens, 990 A.2d
1181, 1185 (Pa. Super. 2010), appeal denied, 607 Pa. 694, 4
A.3d 157 (2010) (holding evidence of defendant’s prior sexual
assault was admissible under common scheme exception despite
nearly ten-year gap between periods of abuse, where victims
were of similar age and both were daughters of defendant;
defendant initiated contact with each victim during overnight
visit in his apartment; defendant began sexual abuse by showing
victims pornographic movies; and assaults occurred in bed at
night). See also Commonwealth v. Luktisch, 451 Pa.Super.
500, 680 A.2d 877 (Pa. Super. 1996) (holding common scheme
exception justified admission of testimony regarding defendant’s
previous sexual assaults despite six-year lapse between periods
of abuse, where three victims were nearly same age, victims
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were either daughter or step-daughter of defendant and lived
with him when acts occurred; and pattern of molestation—from
improper touching to oral sex to sexual intercourse—was highly
similar with respect to two victims).
Com. v. Tyson, ___ A.3d ___, ___, 2015 Pa. Super. 138, *3-4 (Pa. Super.
2015).
Here, Reed contends the trial court erred when it determined the
evidence was admissible pursuant to the common plan, scheme or design
exception. Specifically, he asserts the prior bad acts do not share a “unique
similarity” in facts with the present charges, and, indeed, “[t]he only
constant was the nature of the familial relationship [Reed] shared with A.G.
and K.G.” Reed’s Brief at 12. Moreover, Reed states the “locations, dates,
and circumstances of the acts as to K.G. and A.G. were markedly different.”
Id. at 13. For example, K.G. testified Reed first assaulted her at her
parents’ home when she was 16 years old, and, later, at his home when she
was 28 years old. Conversely, the first alleged sexual assault of A.G., an
attempted involuntary deviate sexual intercourse, occurred in Reed’s garage,
when A.G. was 14 years old. Moreover, the second incident, a purported
rape, occurred at Reed’s home when A.G., then 17 years old, was staying
with him. Accordingly, Reed contends the acts were not sufficiently similar
to demonstrate a common plan, scheme or design. Additionally, Reed
argues any probative value assigned to the testimony regarding his prior bad
acts was far outweighed by the danger of unfair prejudice. Id. at 16.
Specifically, he contends the remoteness in time of the prior incidents is
“substantial.” Id. at 17.
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The trial court concluded, however, that evidence of Reed’s prior
sexual assault of K.G., the victim’s mother, was admissible to demonstrate a
common plan, scheme or design. In particular, the court emphasized the
following:
[T]here were strong similarities between [Reed’s] conduct on
A.G. and his prior conduct on A.G.’s mother, K.G. K.G., like
A.G,. was a minor female at the time of the first assault. K.G.,
like A.G., was a niece of [Reed’s]. [Reed] used the family
relationship and opportunity to be alone with K.G. to force her to
engage in incestuous sexual intercourse with him, just as he
used the same factors to isolate and assault A.G. Both K.G. and
A.G. indicate[d] they were held down by [Reed] during the
assaults. K.G., like A.G., got pregnant as a result of the
assaults.
Trial Court Opinion, 10/31/2014, at 20.
We find this Court’s decision in Commonwealth v. Aikens, 990 A.2d
1181 (Pa. Super. 2010), appeal denied, 4 A.3d 157 (Pa. 2010), instructive.
In that case, the appellant was convicted of, inter alia, indecent assault for
the sexual abuse of his 14-year-old daughter, T.S. Id. at 1182. At trial, the
Commonwealth presented the testimony of V.B., the appellant’s then 32-
year old daughter by another woman, who claimed appellant had sexually
abused her when she was 15 years old. On appeal, the appellant challenged
the court’s admission of this evidence under the common plan, scheme or
design exception. In concluding the ruling was not an abuse of discretion, a
panel of this Court stated:
In both cases, the victims were of like ages: T.S. was fourteen
years old, and V.B. was fifteen years old. Both victims were
Appellant’s biological daughters. Appellant initiated the contact
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during an overnight visit in his apartment. He began the sexual
abuse by showing the girls pornographic movies. The assaults
occurred in bed at night. While Appellant raped V.B. and
indecently assaulted T.S., T.S. stopped Appellant from disrobing
her and committing the more serious sexual assault. In
addition, Appellant mimicked the grinding movements of sexual
intercourse on T.S. in order to sexually gratify himself. These
matching characteristics elevate the incidents into a unique
pattern that distinguishes them from a typical or routine child-
abuse factual pattern. Hence, we reject Appellant's position that
we are pigeonholing sexual abuse cases to such an extent that
any prior instance of child abuse would be admissible in a
subsequent child abuse prosecution. See also Commonwealth
v. Hughes, 521 Pa. 423, 555 A.2d 1264 (1989) (evidence about
prior rape correctly allowed at rape-murder trial since crimes
were committed in similar geographic location, at similar time,
characteristics of victim matched, and defendant used same
method of attack). As was the case in Hughes, the similarities
at issue herein were “not confined to insignificant details that
would likely be common elements regardless of who committed
the crimes.” Id. at 1283.
Concededly, the time lapse at issue in this case was lengthy.
V.B.’s abuse started in fall 1986 and ended in approximately
1990. N.T. Motion, 7/29/02, at 4. The rape introduced at this
trial occurred fifteen years prior to the assault at issue. Id. at 3.
Thus, there was a ten-to-eleven-year period between the end of
that abuse and the present abuse. However, as we noted
[supra,] remoteness is merely one factor to be considered in
determining admissibility; the importance of the gap in time is
inversely proportional to the similarity between the crimes. In
this case, the parallels are striking. The abuse was perpetrated
in an identical manner on victims with identical characteristics
and in an identical setting. The only exception was that the
victim herein was able to stop the abuse from escalating.
Hence, the fact that V.B.’s abuse occurred remotely to that in
the present case was not determinative of the issue. In addition,
since the crimes were comparable, the probative value of the
evidence of V.B.’s abuse outweighed its prejudicial impact.
Id. at 1185-1186.
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We find the same true here. While the particular circumstances
surrounding the prior incidences were not identical, with respect to both K.G.
and A.G., Reed preyed upon his teenaged nieces, who were both about the
same age at the time he first vaginally raped them by holding them down. 9
See N.T., 4/28/2014, at 82, 152. Moreover, both rapes involved physical
force, as opposed to only intimidation. See id. at 87, 155. Although K.G.
was 28 years old the second time Reed raped her, he was able to get her
alone only after taking advantage of their familial relationship. Indeed, K.G.
testified she only agreed to meet with Reed at his house, upon his
suggestion, to discuss her strained relationship with her own father. Id. at
153. Further, as a result of that assault, K.G. became pregnant with the
victim herein, A.G. Accordingly, we find no abuse of discretion on the part
of the trial court in admitting evidence of Reed’s sexual assault of the
victim’s mother under the common plan, scheme and design exception.
Nonetheless, prior bad acts evidence is admissible in a criminal case
“only if the probative value of the evidence outweighs its potential for unfair
prejudice.” Pa.R.E. 404(b)(2). With respect to this balancing test, the trial
court opined:
____________________________________________
9
We note, too, that both K.G. and A.G. were teenaged mothers at the time
they were raped. The first time Reed forced K.G. to have sex, she was alone
at her parents’ home with her infant son. See N.T., 4/28/2014, at 152.
Similarly, the first time, Reed forced A.G. to have sex with him, she was
staying at his house with her one-year-old daughter. Id. at 84-87.
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In the instant case, I found that the probative value of the
evidence outweighed its prejudicial effect. Although evidence of
the prior sexual assaults on the victim, A.G., and her mother,
K.G., may have been prejudicial, it was not unduly so. As the
comment to Rule 403 instructs, “‘[u]nfair prejudice’ means a
tendency to suggest decision on an improper basis or to divert
the jury’s attention away from its duty of weighing the evidence
impartially.” Pa.R.E. 403 cmt. The sexual assault evidence,
introduced for legitimate purposes, was not so prejudicial that it
likely diverted the jury’s attention away from its duty of
weighing the evidence impartially.
Moreover, “[w]hether relevant evidence is unduly
prejudicial is a function in part of the degree to which it is
necessary to prove the case of the opposing party.”
Commonwealth v. Gordon, 543 Pa. 513, 521, 673 A.2d 866,
870 (1996). Here, the Commonwealth was required to prove
the elements of rape, indecent assault, IDSI, sexual assault,
unlawful contact and indecent exposure, which include forcible
compulsion and non-consensual touching. [Reed] denied that
the contact occurred, and since the uncorroborated testimony of
the victim in this case might have reasonably led a jury to
determine that there was a reasonable doubt as to whether
[Reed] committed the crimes charged, it was fair to conclude
that the other crimes evidence was necessary for the prosecution
of the case. Without doubt, the other crimes evidence was
prejudicial to [Reed]. That is what it is designed to be. On the
facts of this case, however, it was not unduly prejudicial, as it
was required for the Commonwealth’s case.
Trial Court Opinion, 10/31/2014, at 24-25.
We agree. While Reed emphasizes the “remoteness of time” between
the sexual assault against A.G., and his prior assault of her mother, we find
that the probative value of the prior bad acts evidence outweighed any
potential prejudice. Indeed, the remoteness of time between the acts was
solely the result of Reed’s decision to sexually abuse and impregnate one
niece, and subsequently, sexually abuse and impregnate the daughter born
as a result of the first assault. Although the evidence demonstrated the
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baby born to A.G. in 2011 was Reed’s biological child, the only evidence that
the pregnancy was the result of a rape was A.G.’s own testimony.
Accordingly, the testimony of her mother, that A.G., too, was the product of
a rape by the same defendant, was of significant probative value.
Therefore, Reed’s challenge to the trial court’s admission of testimony
regarding his prior bad acts fails.
In his second issue, Reed argues the trial court erred in denying his
motion to sever the cases for trial. Our review of such a claim is well-
settled:
In reviewing a trial court decision to consolidate or to sever
offenses for trial, our standard is abuse of discretion. Offenses
charged in separate informations may be tried together if they
are “based on the same act or transaction” or if “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.Pro. 582(A)(1). The court
has discretion to order separate trials if “it appears that any
party may be prejudiced” by consolidating the charges.
Pa.R.Crim.Pro. 583.
Our Supreme Court has established a three part test,
incorporating these two rules, for deciding the issue of joinder
versus severance of offenses from different informations. The
court must determine
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, if the answers to these inquiries
are in the affirmative, whether the defendant will be
unduly prejudiced by the consolidation of offenses.
Commonwealth v. Thomas, 879 A.2d 246, 260 (Pa. Super. 2005) (some
internal citations omitted), appeal denied, 989 A.2d 917 (Pa. 2010).
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Here, Reed argues the court improperly denied his motion to sever the
cases for trial because the “two dockets do not involve a common
scheme/plan/design and the evidence of each would not have been
admissible in a separate trial for the other.” Reed’s Brief at 21. He asserts
the two alleged assaults on A.G., four years apart, “occurred at different
time and in different locations.” Id. at 19. He further contends that
because the only similarity in the crimes was the victim, the evidence of
each incident would not have been admissible in a trial for the other.
The trial court, however, concluded the cases should be consolidated
for trial based upon the above-stated three-part test. First, the court found
“the evidence from the two Informations showed a common scheme, plan or
design, as well as [Reed’s] identity,” and, therefore, would be admissible in
a separate trial for the other. Trial Court Opinion, 10/31/2014, 27. Next,
the court determined “the evidence was capable of separation by the jury”
because “[t]he offenses occurred at different times and in different places.”
Id. Lastly, the trial court found Reed would not be “unduly prejudiced by
the consolidation of the offenses” because the prejudice to him would not be
any greater than the general prejudice he would suffer by being linked to a
crime. Id. at 27-28.
Again, we find no error or abuse of discretion on the part of the trial
court. First, we agree that the evidence of each crime would be admissible
in a trial for the other. The 2007 incident, in which Reed exposed himself to
then 14-year-old A.G. and attempted to engage her in oral sex, would
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clearly be admissible in a trial for the 2010 rape to demonstrate that Reed’s
“sexual misconduct was of a continuing and escalating nature.”
Commonwealth v. Dunkle, 602 A.2d 830, 839 (Pa. 1992) (“McCormick on
Evidence states that prior sexual misconduct with the victim is admissible
‘[t]o show a passion or propensity for illicit sexual relations with the
particular person concerned in the crime on trial.’”) (citation omitted).
Indeed, the jury could infer the 2007 incident did not result in a rape simply
because Reed was interrupted by A.G.’s brother. Moreover, evidence of the
later incident would be admissible in a trial for the former to demonstrate
that when A.G. became impregnated with Reed’s child, it was not the result
of a consensual act.
Moreover, we agree the crimes are easily separable because they
occurred three years apart in different locations, and involved different
sexual acts. Lastly, we agree Reed has failed to demonstrate he was
prejudiced by the consolidation of the cases for trial. Indeed, with regard to
the 2007 incident, there were several eyewitnesses to the crime. Further,
with regard to the 2010 incident, the Commonwealth presented evidence
that Reed was the biological father of the child born to his 17-year old
daughter/great-niece nine months later. As our Supreme Court explained in
Commonwealth v. Lark, 543 A.2d 491 (Pa. 1988):
The “prejudice” of which Rule [583] speaks is not simply
prejudice in the sense that appellant will be linked to the crimes
for which he is being prosecuted, for that sort of prejudice is
ostensibly the purpose of all Commonwealth evidence. The
prejudice of which Rule [583] speaks is, rather, that which would
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J-S34020-15
occur if the evidence tended to convict appellant only by showing
his propensity to commit crimes, or because the jury was
incapable of separating the evidence or could not avoid
cumulating the evidence. Such prejudice was not present in the
instant case.
Id. at 499. Accordingly, we find no abuse of discretion on the part of the
trial court in denying Reed’s motion to sever the cases for trial.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2015
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