Com. v. Cope, S.

J-S14029-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
STEVEN MICHAEL COPE, JR. :
:
Appellant : No. 942 WDA 2022
Appeal from the Judgment of Sentence Entered July 25, 2022
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0000830-2021
BEFORE: PANELLA, P.J., BENDER, P.J.E., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED: August 18, 2023
Appellant, Steven Michael Cope, Jr., appeals from the judgment of
sentence of 23 to 46 years of incarceration, imposed following his jury trial
convictions for several sexual assault crimes committed against two male
minors. Appellant challenges the admission of uncharged allegations of sexual
abuse against a third minor, as well as the admissibility of hearsay statements
under the Tender Years Hearsay Act (“TYHA”), 42 Pa.C.S. § 5985.1. We
affirm.
Appellant is the half-brother of the victims, D.C. and T.S. The alleged
abuse occurred in May of 2018, when D.C. was ten years old and T.S. was
five. By the time of trial, the victims were fourteen and ten. The abuse
occurred one evening in the March of 2018, when Appellant, who lived in the
residence, watched the children overnight while their mother, J.C., was in New
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* Retired Senior Judge assigned to the Superior Court.
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York City. When J.C. returned, T.S. told her that Appellant had tried to touch
him in a sexual manner. The following morning, J.C. demanded that Appellant
leave the residence. In 2019, D.C. disclosed that Appellant had touched him
in his private area, and T.S. likewise disclosed that Appellant had abused him,
prompting J.C. to report the abuse.
T.S. testified that Appellant masturbated in front of him and offered him
fifty dollars if T.S. gave Appellant oral sex. Both T.S. and D.C. testified that
Appellant put his mouth on their penises. Both victims were interviewed by a
forensic specialist in May of 2019, the recordings of which were introduced at
trial under the TYHA. In those interviews, D.C. stated that Appellant put his
penis in D.C.’s anus. Both children stated that the incidents started with
Appellant touching their penises.
Authorities learned that Appellant allegedly abused a five-year-old child,
Z.G., while attempting to serve his arrest warrant. On February 10, 2021,
Trooper David Wineland visited Z.G.’s home and spoke to his mother, T.T.
During the ensuing conversation, Trooper Wineland stated that Appellant was
wanted for sexual abuse. T.T. asked if she should ask her children if Appellant,
who babysat Z.G. for several months while T.T. worked, had abused them.
Trooper Wineland advised her to let the investigation continue and told her
not to ask. T.T. testified that she ignored this advice and, immediately after
the trooper departed, asked Z.G. if Appellant had touched him. Z.G. pointed
to his crotch and made a circular motion with his finger. She reported this to
authorities and, five days later, Z.G. sat for a forensic interview where he
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again indicated that Appellant had touched his penis. The Commonwealth
decided not to pursue charges against Appellant concerning Z.G.’s allegations.
The trial court inquired about this during the pre-trial hearing and Trooper
Charles Irvin explained, “Due to [Z.G.]’s age, even though he made some
disclosures, his ability to articulate in more detail, he didn’t have the maturity
at the time to do that. The District Attorney’s Office felt it was not an
appropriate time to go forward.” N.T., 4/20/22, at 32.
Appellant was convicted following a jury trial and sentenced as stated.
On August 18, 2022, Appellant filed a timely notice of appeal and complied
with the court’s order to file a Pa.R.A.P. 1925(b) concise statement of matters
complained of on appeal. The trial court authored an opinion in response, and
we now review Appellant’s claims:
1. Whether the court commit[t]ed reversible error by improperly
admitting certain evidence pursuant to Pa.R.E. 404(b), specifically
the testimony of [T.T.], juvenile, Z.G., and Detective Irvin of the
Greensburg police department, as well as the forensic interview
conducted with Z.G., thereby denying … [A]ppellant of a fair trial
as guaranteed by both the federal constitution and the
[C]onstitution of the Commonwealth of Pennsylvania?
2. Whether the court commit[t]ed reversible error by improperly
admitting evidence pursuant to the [TYHA] … specifically the
testimony of alleged victims, T.S., D.C., and 404(b) witness, Z.G.,
thereby denying … [A]ppellant of a fair trial as guaranteed by the
federal constitution and the [C]onstitution of the Commonwealth
of Pennsylvania?
3. Whether the sentence, ordering Appellant to comply with the
rules and regulations of SORNA[1] as a lifetime registrant is an
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1 The Sexual Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S.
§§ 9799.10-9799.42
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illegal sentence, as that requirement exceedes [sic] the maximum
statutory sentence for any offense for which … [A]ppellant was
convicted?
Appellant’s Brief at 7.
Appellant’s first issue challenges the admission of Z.G.’s allegations of
abuse. Pennsylvania Rule of Evidence 404(b) “embodies our pre-codification
jurisprudence acknowledging the inadmissibility of propensity evidence.”
Commonwealth v. Yale, 249 A.3d 1001, 1018 (Pa. 2021). The common law
rule held “that a distinct crime, unconnected with that laid in the indictment,
cannot be given in evidence against a prisoner. It is not proper to raise a
presumption of guilt, on the ground, that having committed one crime, the
depravity it exhibits makes it likely he would commit another.” Shaffner v.
Commonwealth, 72 Pa. 60, 65 (Pa. 1872). The reason for barring this
evidence is not one “of relevance, but of policy, i.e., because of a fear that
such evidence is so powerful that the jury might misuse the evidence and
convict based solely upon criminal propensity.” Commonwealth v. Dillon,
925 A.2d 131, 137 (Pa. 2007).
The text of Rule 404(b) codifies this general prohibition. “Evidence of
any other crime, wrong, or act is not admissible to prove a person’s character
in order to show that on a particular occasion the person acted in accordance
with the character.” Pa.R.E. 404(b)(1). The Rule authorizes exceptions for
“another purpose, such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident.” Pa.R.E.
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404(b)(2). The Commonwealth must establish that “the probative value of
the evidence outweighs its potential for unfair prejudice.” Id.The admission of evidence is reviewed for an abuse of discretion.
Commonwealth v. Drumheller, 808 A.2d 893, 904 (Pa. 2002). “An abuse
of discretion is not merely an error of judgment, but is rather the overriding
or misapplication of the law, or the exercise of judgment that is manifestly
unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by
the evidence of record.” Commonwealth v. Harris, 884 A.2d 920, 924 (Pa.
Super. 2005) (citation omitted).
The threshold question for a Rule 404(b) analysis is whether the
evidence is relevant to something other than propensity. In its Pa.R.A.P.
1925(a) opinion, the trial court explained that the evidence was relevant to
show a “common plan, scheme, or design.”
Rule 404(b) allows evidence of other crimes “when it tends to
prove a common plan, scheme, or design embracing the
commission of two or more crimes so related to each other that
proof of one tends to prove the others.” Pa.R.E. 404(b);
Commonwealth v. Saez, 225 A.3d 169, 178 (Pa. Super. 2019);
Commonwealth v. O’Brien, 836 A.2d 966 (Pa. Super. 2003)
(two prior sexual assaults on minor boys admissible under
common-scheme-or-plan exception in trial relating to assault on
third minor boy). To determine whether bad acts evidence is
admissible as evidence of a common plan or scheme, the trial
court should ascertain “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.” Commonwealth
v. G.D.M., Sr., 926 A.2d 984, 987 (Pa. Super. 2007) (citation
omitted). Some factors relevant to this inquiry include the types
of victims chosen by the perpetrator, the time and place of
committing the crimes, as well as the “patterns of action or
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conduct” by the perpetrator to commit the crime. G.D.M., Sr.[,]
926 A.2d at 987.
In this case, all three victims were males aged ten and under. The
sexual assaults all happened in the victims’ homes while the
children’s parents were away and … [Appellant] was acting as a
babysitter. Also, … [Appellant] had known all three victims for a
substantial period of time before assaulting them. The assaults
all started with … [Appellant] touching [each] victim’s penis. The
assault on Z.G. ended at that point but the assaults on D.C. and
T.S. progressed beyond that act. This [c]ourt found that these
similarities were sufficient to show that the sexual assaults on D.C.
and T.S. were part of a common plan or scheme which continued
through the assault on Z.G.[,] and that evidence of each crime
was relevant and admissible to prove the other.
Trial Court Opinion, 10/12/22, at 12-13 (citation omitted).
Appellant responds that this ruling constitutes an abuse of discretion
because, “while there is a somewhat detailed account of the allegations that
gave rise to the criminal charges, there is a near complete lack of detail with
respect to the disclosure made by Z.G.” Appellant’s Brief at 13. Appellant
agrees there are “broad commonalties between the allegations and the 404(b)
material, [but] there is no nexus connecting them to the ‘same perpetrator.’”
Id. at 14. Specifically, Appellant argues that the allegations pertaining to Z.G.
are not sufficiently similar to the allegations concerning D.C. and T.S.
Yes, Appellant was in the care of the minors [sic], outside the
presence of their respective parents, and all were under the age
of ten. However, two of the victims were … Appellant’s half-
brothers. To say that he knew them for a substantial period of
time would be a mischaracterization. Appellant knew, or at least
knew of[,] each of them for the entirety of their lives. There was
no evidence that … Appellant made any attempt to bring these
two minors into his orbit for the purpose of sexually abusing them.
They were his family. Moreover, there was no testimony that …
Appellant knew Z.G. for any period of time beyond that which he
was babysitting for [T.T]. As far as the time and place of
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committing these crimes, the [c]ourts in the Commonwealth
understand that crimes of a sexual nature often take place in
isolation. For the [t]rial [c]ourt to latch onto this only draws
… Appellant into the larger pool of those who commit sexual
violence. Plainly stated, the attendant commonalities are too
remote for the stringent requirements of 404(b).
Id. at 12-13 (emphasis added).
Appellant thus offers that little distinguishes the alleged assaults against
Z.G. from acts committed by any other sexual offender, and therefore there
is no specific plan that may be attributed to Appellant as a distinctive method
of committing sexual assault. Accordingly, Appellant maintains that the
evidence was used for a forbidden propensity purpose, as absent a common
plan,2 the introduction of Z.G.’s allegations, if believed by the fact-finder,
established only that Appellant had a propensity for abusing children.
Initially, we note that Appellant concedes that the trial court properly
determined that the evidence was relevant to a non-propensity purpose.
“Based on the nature of the allegations, and the disclosure of Z.G., the [t]rial
[c]ourt properly concluded that the 404(b) evidence at issue pointed to the
‘common plan, scheme, or design’….” Id. at 12. This concession accepts that
the evidence was relevant for the purpose of establishing a “common plan,
scheme, or design,” with a corresponding legal question of whether the
allegations concerning Z.G. had the requisite degree of similarity demanded
by caselaw.
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2 This exception tends to be described as “common plan, scheme, or design.”
For ease of reference, we shall at times generically refer to it as the common
plan exception.
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The degree of similarity required when admitting evidence of other acts
that are similar to the crimes alleged is a difficult question. Appellant’s
argument that there is an inadequate degree of similarity between the
incidents has some force, in that the trial court stated, in a portion of its
opinion, that it is obligated to determine whether the conduct “is distinctive
and so nearly identical as to become the signature of the same perpetrator.”
Id. (quoting TCO at 12). At this juncture, we discuss the caselaw regarding
“signature” crimes.
In certain fact patterns, evidence concerning other crimes may be
relevant to establish identity, i.e., that the person charged is likely to be the
perpetrator due to similarities between the charged crime and those other
acts. Consider the infamous London serial killer known as Jack the Ripper,
who gruesomely killed women working as prostitutes in a certain area of
London. The discovery of an additional victim who worked as a prostitute and
who died in the same gruesome fashion would logically lead one to suspect
that the identity of the killer was Jack the Ripper. Each individual aspect of
the crime—the occupation of the victim, a gruesome death, the location of the
crime—would not create this logical inference. Instead, it is the combination
of those circumstances that supply the “signature” aspect of the crime.
Introducing evidence of other acts on this basis logically requires a very high
degree of similarity, at least when the purpose is to show that the defendant
must have been the perpetrator of an unsolved crime bearing the same
hallmarks.
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Evidence relevant to the common plan exception is grounded in the
notion that some crimes are so related that proof of one tends to prove the
others. Commonwealth v. Hughes, 555 A.2d 1264, 1282 (Pa. 1989) (“The
general rule, however, allows evidence of other crimes to be introduced to
prove … a common scheme, plan or design embracing commission of two or
more crimes so related to each other that proof of one tends to prove the
others.”) (ellipsis in original). Decisions discussing this theory sometimes
require less than a true “signature” between the Rule 404(b) evidence and the
charges at issue. In Commonwealth v. Arrington, 86 A.3d 831 (Pa. 2014),
Arrington was convicted of the first-degree murder of his girlfriend. The
Commonwealth argued that other-act evidence was admissible to establish a
common plan “to control girlfriends through violence and intimidation.” Id.
at 842. The Commonwealth was permitted to introduce “evidence that
[Arrington] physically assaulted three other girlfriends when they attempted
to break up with him or interacted with other men.” Id. The Court agreed
that the evidence was admissible to support the cited common plan. “The
testimony concerning [Arrington]’s treatment of other girlfriends
demonstrated repeated efforts to preserve intimate relationships through
harassment, intimidation, and physical violence culminating in the use of a
deadly weapon.” Id. at 844. Each of the three incidents shared common
facts, and “[g]iven the shared characteristics of each relationship,” the
evidence was admissible. Id. The Court characterized the Rule 404(b)
evidence as “admissible to establish a common scheme to aid in ascertaining
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the killer’s identity.” Id. at 845. Arrington found no abuse of discretion in
admitting Rule 404(b) evidence of a “common plan” comprised of prior acts
committed by the defendant to establish “identity,” even though those acts
did not qualify as a true “signature.”
Results like Arrington are criticized on the grounds that where the
identity of the perpetrator is not meaningfully contested, the risk that the jury
will consider the common plan evidence for the forbidden propensity purpose
naturally increases. “It is natural and well-nigh inevitable … that a juror will
conclude that, if a person has assaulted women before, he likely will do so
again.” Commonwealth v. Hicks, 156 A.3d 1114, 1157 (Pa. 2017) (Wecht,
J., dissenting). The occasional conflation of these two Rule 404(b) exceptions
is illustrated by the divergent opinions in Hicks, wherein the Justices deeply
split on the admissibility of Rule 404(b) evidence. There, authorities
recovered several garbage bags containing the body parts of Deanna Null,
with the exception of her hands. Authorities ultimately identified Hicks as a
suspect based on, inter alia, a man stating that he had introduced Null to
Hicks, with Hicks looking for prostitutes and drugs. Hicks acknowledged that
he was a cocaine addict and knew the victim to be a prostitute. A search
warrant for Hicks’ home led to the discovery of several inculpatory items,
including Null’s hands.
The Commonwealth sought “to introduce evidence of prior bad acts
through the testimony of eight women with whom [Hicks] had a sexual and/or
prostitution-type relationship, which also involved the use of illegal narcotics
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such as crack cocaine.” Id. at 1119. The Commonwealth argued the evidence
would establish “motive, identity and intent, as well as to rebut any defense
based on accidental death.” Id. The proposed witnesses would all testify that
Hicks committed various assaults, which the Commonwealth argued “would
demonstrate a common scheme ... to victimize prostitutes, or women
engaging in prostitution to satisfy their addictions to controlled substances,
such as the victim in the present case.” Id. The Commonwealth maintained
that the other incidents were sufficiently factually similar to Null’s murder for
these reasons:
[T]heir experiences with [Hicks] bore striking similarities to the
victim’s murder for the following reasons: all were women who
had engaged in prostitution and drug use with [Hicks], who had
admitted to having sex and using drugs with the victim; the
witnesses were assaulted primarily by being beaten or choked
with [Hicks’] hands, and the blunt force trauma suffered by the
victim was consistent with this type of assault; several of the
witnesses were threatened with edged weapons, and the victim
suffered numerous injuries by edged weapons; disputes arising
out of a sexual encounter appeared to be the motive for many of
the assaults, and [Hicks] admitted having a sexual relationship
with the victim.
Id.The trial court permitted the Commonwealth to admit evidence
pertaining to seven of the eight, and the prosecution chose to introduce the
testimony of three of these women. Hicks was convicted of murder and
sentenced to death. Justice Dougherty, joined by then-Justice, now Chief
Justice, Todd and Justice Mundy, concluded that the evidence was properly
admitted under Rule 404(b) on the basis that the other-crimes evidence
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showed both a “striking similarity—or logical connection—between the
proffered prior bad acts and the underlying charged crime.” Id. at 1125. The
evidence concerning Hicks’ “prior relationships with and assaults upon [the
three women] showed they were strikingly similar to the circumstances
surrounding his relationship with the victim, her injuries, and her subsequent
death, such that there was a logical connection between them.” Id. at 1127.
The Court cited five specific facts justifying this conclusion: Hicks was
introduced to women with drug dependencies who shared “similar body
types”; he showed sexual interest in the women, some of which involved
prostitution; he resorted to violence with these women; he injured each
woman by targeting their necks with his hands or a sharp object; and he
verbally threatened to kill each woman. Id. at 1123. These three Justices
found that these similarities “not only establish the required logical
connection[,] … they also present a ‘virtual signature’ for purposes of proving
common scheme, intent and identity.” Id. at 1128.
Then-Chief Justice Saylor and Justices Donohue and Wecht disagreed
with the foregoing analysis, with then-Chief Justice Saylor concurring in the
result and Justices Donohue and Wecht dissenting on the Rule 404(b) issue,
concluding that the trial court erroneously introduced the evidence.3
Beginning with the dissents, Justice Donohue opined that the plurality’s
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3 Justice Baer stated that “the substantive evidentiary ruling in this case
presents a close call,” but found it unnecessary to reach the issue on the basis
that any error in introducing the evidence was harmless beyond a reasonable
doubt. Id. at 1139 (Baer, J., concurring).
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identification of the five shared factual categories fell short of establishing a
“signature” crime.4 “The absence of a signature is particularly apparent from
the extraordinarily broad categories the Majority creates in its strained effort
to elucidate the required ‘striking similarities.’” Id. at 1154 (Donohue, J.,
dissenting). Justice Donohue further discussed the distinction between using
Rule 404(b) evidence for purposes of establishing identity versus proving a
common scheme. “Although there is significant overlap between the various
404(b)(2) purposes … a ‘signature’ does not itself establish a ‘common
scheme,’ even though a ‘signature’ and a ‘common scheme’ may, for example,
both prove identity.” Id. at 1144 n.3. Her opinion argued that other-act
evidence may be introduced “to show motive, plan, design or scheme (which
in turn may tend to show identity, intent, absence of accident, or some other
fact in issue),” but only if those acts were part of an overarching plan. Id. at
1144. Justice Donohue reviewed caselaw at length and criticized decisions
like Arrington, which the three-Justice plurality heavily relied upon, for
conflating the theories. “Arrington, in my view, is the unfortunate
culmination of the conflation of the requirements to establish a signature crime
with those necessary to establish a common scheme or plan[;] … where the
similarities are insufficient to establish a signature crime, and there is no true
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4 Justice Wecht joined Justice Donohue’s Rule 404(b) analysis and wrote
separately to address the Commonwealth’s decision to abandon a harmless
error argument.
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plan, the evidence shows only the defendant’s propensity and must be
prohibited.” Id. at 1151-52.
On these points, then-Chief Justice Saylor agreed with Justice
Donohue’s criticisms. “I agree with Justice Donohue that various majority
opinions of this Court, like the decisions of a number of other courts, have
incorrectly blended various distinct grounds for relevance associated with
proffered, uncharged misconduct.” Id. at 1130 (Saylor, C.J., concurring).
With respect to admitting other-crime evidence for purposes of establishing
identity, he agreed that “majority opinions of this Court … have substantially
diluted the putatively stringent standard associated with at least one of these,
namely, proof of identity via a modus operandi theory.” Id. He agreed that
“the threshold for the use of uncharged misconduct as evidence of identity
should remain high, in accordance with the signature-crimes analysis related
by Justice Donohue.” Id. (emphasis in original). But where the uncharged
misconduct is introduced to establish something other than identity, he argued
that the higher standard associated with proof of identity need not necessarily
apply. In Hicks, the other evidence did not “truly implicat[e] an identity-
based theory of relevance,”; instead, the “evidence of [Hicks]’ other assaults
upon women went toward negating his defense that the death was an
accident.” Id. at 1131. Thus, the evidence established the actus reus by
corroborating the Commonwealth’s evidence that the death resulted from a
homicide. He cited the “doctrine of chances” theory, see generally id. at
1131-34, as representing a “non-character-based path of logical reasoning
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that sufficiently comports with the ideals underlying Rule of Evidence 404, as
well as its express terms.” Id. at 1134.
These criticisms of the Rule 404(b) precedents demonstrate that
Appellant’s fundamental claim that the Commonwealth failed to show a
“signature” crime is not unfounded, as the circumstances of the three assaults
do not include any combination of traits that are so sufficiently specific to
Appellant that they could be said to be a true “signature.”5 Moreover, identity
was not seriously contested, as Appellant did not dispute that he babysat the
victims but instead claimed that he did not commit the acts.
Notwithstanding, Appellant concedes that the evidence would be
relevant to establishing a common plan, and based on precedents like
Arrington, which the three-Justice plurality followed in Hicks, and several
decisions we now address, we conclude that the Z.G. incident was sufficiently
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5 Courts often describe the common plan exception and the identity exception
as requiring nearly identical degrees of similarity. For example, in
Commonwealth v. Cosby, 224 A.3d 372 (Pa. Super. 2019), vacated on other
grounds, 252 A.3d 1092 (Pa. 2021), the Commonwealth argued that the
comedian Bill Cosby had a pattern of sexual abuse that was “so distinct … that
they are all recognizable as [his] handiwork,” thereby permitting the
admission of testimony from 19 victims who would testify to sexual
misconduct by Cosby. Id. at 398. Alternatively, the Commonwealth alleged
that this testimony was admissible as a “common scheme.” Id. at 397. We
stated that “under both exceptions, the standard for admission is virtually the
same. The … evidence must be distinctive and so nearly identical as to
become the signature of the same perpetrator, and its probative value must
not be undermined by the lapse in time between incidents.” Id. at 401
(quotation marks and citation omitted).
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similar to the assaults against the other two victims to justify its admission
under that theory.
In one of the cases cited by the Commonwealth at the pre-trial hearing
and relied upon by the trial court in its opinion, Commonwealth v. O’Brien,
836 A.2d 966 (Pa. Super. 2003), O’Brien was charged with raping a ten-year-
old boy in 1996, and the Commonwealth sought to admit that O’Brien had a
prior conviction for sexually assaulting two male children in 1982 and 1985.
The trial court denied the motion on the basis that “the facts were insufficient
to establish a ‘signature[.]’” Id. at 970. We reversed, agreeing with the
Commonwealth that the cases relied upon by the trial court were
distinguishable. “In those cases, the relevance of that evidence was to be
used to identify the perpetrator, while here the admission of the evidence of
the prior crimes was relevant to establish a common scheme, plan or design
and, thus, bolster the victim’s credibility.” Id.O’Brien cited in support Commonwealth v. Luktisch, 680 A.2d
877(Pa. Super. 1996), which likewise involved sexual crimes against children.
Luktisch was charged with raping his eleven-year-old stepdaughter. The trial
court permitted the Commonwealth to introduce testimony from the victim’s
stepsister, who was Luktisch’s biological daughter, regarding prior abuse.
That witness was twenty-nine years old at the time of trial and testified that
the abuse occurred when she was between 5 and 8 years old. Id. at 878. A
second stepdaughter testified that she had also been abused by Luktisch.
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On appeal, Luktisch argued that the evidence was too remote to qualify
for admission “under the common scheme, plan, design or course of conduct
exception….” Id. We disagreed, stating that the time gap “is inversely
proportional to the similarity of the crimes in question.” Id. at 879 (quoting
Commonwealth v. Miller, 664 A.2d 1310, 1319 (Pa. 1995)). We determined
that the abuse against all the victims was “nearly identical.” Id. The “acts
committed … were strikingly similar. The three victims were near the same
age when Luktisch molested them; they all had the relationship of daughter
or step[]daughter to Luktisch; all three were living with [Luktisch] when the
acts occurred; and the nature of the acts were almost identical.” Id. (quoting
trial court opinion). While the case did not directly involve an analysis of
whether the crimes qualified as a “signature,” our conclusion that the crimes
were “nearly identical” was conducted in terms of a common plan analysis.
Thus, we accepted that the similarities of abuse warranted their admission.
Our decision in Commonwealth v. Smith, 635 A.2d 1086 (Pa. Super.
1993), also lends support as we again reversed the order of the trial court
barring the Commonwealth from admitting Rule 404(b) evidence, concluding
that the court abused its discretion. A ten-year-old girl, S.S., notified
authorities that her father, James Smith, had sexually molested her on
multiple occasions. The Pennsylvania State Police interviewed Smith’s other
two daughters, E.S. and M.N. E.S., who was then sixteen years old, stated
that Smith abused her from age five through age ten. M.N., who was then
twenty-seven, stated that Smith had abused her from age seven through
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sixteen. The Commonwealth filed charges naming E.S. as the victim, and
sought to introduce the testimony of S.S. and M.N. The trial court permitted
S.S.’s testimony but barred M.N.’s, largely due to the passage of time. We
reversed. “At first glance” we were inclined to agree with the remoteness
analysis. Id. at 1089. However, we stated that remoteness is less important
where “the details of each criminal incident are nearly identical,” which was
the case. Id. Describing the other act evidence as “strikingly similar,” id. at
1090, we pointed out that the abuse of all three daughters started when the
girls were quite young, and the abuse of M.N. ended right as E.S. turned five
or six, when her abuse started. Thus, the remoteness was not dispositive and
the allegations were sufficiently similar to justify their admission as a common
plan.
Finally, in Cosby, supra, we agreed that “a criminal ‘plan’ may be
analogized to a script or playbook of criminal tactics that worked for the
offender when committing past crimes.” Cosby, 224 A.3d at 402 (quoting
Brief of the Office of the Attorney General of Pennsylvania as Amicus Curiae).
“It is the pattern itself, and not the mere presence of some inconsistencies
between the various assaults, that determines admissibility under these
exceptions.” Id.
These cases support the trial court’s ruling, and we find no abuse of
discretion. The “script” that Appellant followed was to exploit his position of
trust placed in him as a babysitter, which sufficiently distinguishes this from
a “common” sexual assault. See Commonwealth v. Bidwell, 195 A.3d 610,
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618–19 (Pa. Super. 2018) (“Similarities cannot be confined to insignificant
details that would likely be common elements regardless of the individual
committing the crime.”). We also agree with the trial court that additional
facts serve to distinguish Appellant’s circumstances from “common elements”
of these crimes; namely, that Appellant knew the family members for a
substantial period of time and that the abuse of all three victims commenced
with Appellant’s touching each victim’s penis. While we agree with Appellant
that the victims are dissimilar in that he did not share any kind of familial
relationship with Z.G., the law does not require that all prior encounters be
identical. “It is impossible for two incidents of sexual assault involving
different victims to be identical in all respects.” Cosby, 224 A.3d at 402.
That we found the trial courts abused their discretion in not admitting
the evidence in O’Brien and Smith supports the trial court’s ruling here. We
do not imply the Commonwealth would have succeeded on appeal had the
trial court denied its motion in limine. Rather, we observe that those cases,
in finding the trial court abused its discretion in not allowing Rule 404(b)
evidence, establishes that the court operated within the boundaries of its
discretionary authority established by caselaw.
Finally, we acknowledge that our determination that the law does not
require a strict degree of similarity implicates the criticisms raised by various
Justices in the Hicks decision. It may be the case that a focused argument
attacking Rule 404(b) precedents as departing from the common-law rules
may one day succeed, and/or the Supreme Court may revisit the issue in a
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manner favorable to Appellant’s position. However, at present, the trial court
did not abuse its discretion in following the authorities discussed.
Having concluded that the evidence was offered for a valid purpose that
was not relevant only to establish propensity, we address whether the
evidence should have been excluded due to its prejudicial impact. The
foregoing cases likewise address this inquiry. We quote our O’Brien decision
on this point:
In [Commonwealth v.] Gordon [673 A.2d 866 (Pa. 1996)], the
Commonwealth sought the admission of the defendant’s
conviction of similar crimes in its prosecution on two indecent
assault charges. The Supreme Court found that the … prior
conduct was relevant to prove, inter alia, a common scheme or
plan and then discussed the prejudicial effect … as follows:
Whether 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. Here, the Commonwealth was
required to prove that a non-consensual touching occurred,
the purpose of which was sexual gratification. Gordon
denies that the touching occurred, and since the
uncorroborated testimony of the alleged victim in this case
might reasonably lead a jury to determine that there was a
reasonable doubt as to whether Gordon committed the
crime charged, it is fair to conclude that the other crimes
evidence is necessary for the prosecution of the case.
Without doubt, the other crimes evidence would be
prejudicial to Gordon. That is what it is designed to be. On
the facts of this case, however, it is not unduly prejudicial,
as it is required for the Commonwealth’s case. It was an
abuse of discretion for the trial court to deny the
Commonwealth’s motion for the admission of this evidence.
Id. at 870 (footnote omitted).
O’Brien, 836 A.2d at 972.
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We conclude that, on these facts, the admission of Z.G.’s accusations
was not unduly prejudicial. As reflected by the discussion in Gordon, we must
consider the value of the evidence in proving the Commonwealth’s case, as
child abuse cases typically occur behind closed doors and frequently lack
corroboration.6 This presents a close call, as we agree with Appellant that the
fact the Commonwealth declined to charge Appellant for abusing Z.G. is a
relevant consideration, suggesting that the Commonwealth may not have
believed it could sustain a verdict beyond a reasonable doubt yet chose to
introduce the evidence anyway. Because Z.G. testified and was made
available for cross-examination, and his testimony if believed would support
a verdict, it is not entirely clear why the Commonwealth declined to pursue
charges. However, we recognize that there are many reasons why the
Commonwealth would have declined prosecution. In any case, Z.G.’s
accusations were just that: accusations. This was not a case where the
Commonwealth introduced prior convictions. Additionally, the jury was
instructed that the Z.G. testimony was offered for a limited purpose. TCO at
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6 Then-Chief Justice Saylor’s concurring opinion in Hicks argued that the
doctrine of chances is a valid, non-propensity rationale, and discussed, inter
alia, Professor Mark Cammack’s article Using the Doctrine of Chances to Prove
Actus Reus in Child Abuse and Acquaintance Rape: People v. Ewoldt
Reconsidered, 29 U.C. DAVIS. L. REV. 355 (1996). Therein, Professor
Cammack observes that, “[b]ecause the probability that an innocent person
will be falsely accused of child abuse or rape is low, evidence that a defendant
on trial for one of those crimes has previously been accused of the same thing
suggests that some force other than chance is at work in producing this
improbable outcome.” Id. at 357. While this theory was cited to establish a
non-propensity rationale, its logic applies equally to this point.
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13 (quoting jury instruction). We therefore find no abuse of discretion, and
Appellant is not entitled to relief on this issue.
Appellant’s second issue challenges the trial court’s ruling permitting the
Commonwealth to introduce hearsay under the TYHA. The trial court
permitted the introduction of hearsay statements under the TYHA as to all
three victims. However, Appellant’s brief addresses only Z.G. and we
therefore limit our discussion to that witness.
The TYHA permits the introduction of an “out-of-court statement made
by a child victim or witness, who at the time the statement was made was 16
years of age or younger,” describing certain offenses including the ones at
issue herein, provided that the trial court “finds, in an in camera hearing, that
the evidence is relevant and that the time, content and circumstances of the
statement provide sufficient indicia of reliability[.]” 42 Pa.C.S §
5985.1(a)(1)(i-ii). “The statute requires ‘indicia of reliability’ which ‘include,
inter alia, the spontaneity of the statements, consistency in repetition, the
mental state of the declarant, use of terms unexpected in children of that age,
and the lack of a motive to fabricate.’” Interest of D.C., 263 A.3d 326, 335
(Pa. Super. 2021) (quoting Commonwealth v. Strafford, 194 A.3d 168, 173
(Pa. Super. 2018)).
Referencing the testimony from T.T. that Z.G. disclosed the abuse in
response to her questioning, Appellant claims that the statements lacked
sufficient indicia of reliability because “at least a portion of the … testimony
was tainted.” Appellant’s Brief at 14. Additionally, he argues that Z.G.’s
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statements were not sufficiently reliable with respect to the factors listed in
Strafford:
Addressing those factors, there is no spontaneity of statements.
Z.G.[’s] initial disclosure came after questioning by his mother
after she met with a police officer at her residence. Further
statements from Z.G. were [given] during a forensic interview, or
during the competency hearing as noted supra. There is no
consistency in the statements, except for the vague circular
motion around the groin. Z.G. stated several times that he was
not touched, and then it was “yes and no.” Certainly, this is not
any measure of consistency. There appeared to be no use of
terms that would be unfamiliar to a child of Z.G.’s age. With
respect to a motive to fabricate, counsel for … Appellant argues
that indirectly [T.T.], Z.G.’s mother[,] had a motive to fabricate.
Counsel argued that her testimony, wherein she admitted to lying,
or “being less than truthful.” [sic]. [T.T.] had pending felony
charges at the time of her testimony. Appellant asserts she had
a motive to get Z.G. to testify in a certain manner, in order to help
in her own case.
Id. at 16-17 (citation to transcript omitted).
The trial court’s Rule 1925(a) opinion notes that Z.G. was examined in
camera and cites “the opportunity to personally see, hear, and assess [Z.G.]”
as supporting its determination that the statements bore sufficient indicia of
reliability. TCO at 16. The court also cites the forensic interview, which it
considered in finding adequate indicia of reliability.
We agree that the lack of spontaneity favors Appellant, as T.T. asked
Z.G. whether Appellant had abused him. However, the other points either
favor the Commonwealth or are effectively neutral. Beginning with the
consistency of the statements, Z.G. consistently indicated that Appellant had
touched him by making a circular motion around his groin. Appellant’s
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problem with this statement is not with its consistency but rather its lack of
detail. However, Z.G. did state that he was touched, and that Appellant
rubbed his private parts. Additionally, T.T. testified that Z.G. “remains afraid
to talk about his contact” with Appellant. Id. at 5 (quoting transcript). The
trial court observed the testimony of Z.G., including a recording of the forensic
interview, and factored its firsthand observations of Z.G. into its decision. Cf.
Commonwealth v. Dowling, 883 A.2d 570, 577 (Pa. 2005) (explaining that,
in ruling on a witness’ competency to testify, the trial court may rely “on
criteria other than specifically-targeted questions, criteria such as the
witness’s demeanor, alertness, thoughtfulness, sincerity and general
responses and testimony.”).
Regarding T.T.’s felony charges, we do not agree that this supplies Z.G.
with a motive to lie. It supplies a motive for why T.T. may have urged Z.G.
to make disclosures, and Z.G. in turn may well have a motive to please his
mother. Such matters ultimately go to the credibility of the witnesses. This
is not a case where the child himself had an identifiable motive to lie on his
own behalf, such as an ongoing custody dispute where there is evidence the
child may have preferred one parent over another.
In addition, we note that the trial court reviewed the videotaped forensic
interview and relied in part on that interview in making its ruling. “Based on
my review of the mother’s testimony and based on my review of the DVD, I
think [there] was sufficient indicia of reliability to support out of court
statements.” N.T., 4/20/22, at 81. We agree that the forensic interview
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process is a relevant consideration. In Idaho v. Wright, 497 U.S. 805(1990), the United States Supreme Court addressed whether the admission
of hearsay statements made by a child to a pediatrician examining the child
for sexual assault violated the defendant’s right to confront his accuser. The
Court addressed whether the statements bore sufficient “particularized
guarantees of trustworthiness” such that the evidence was admissible under
Ohio v. Roberts, 448 U.S. 56 (1980), abrogated by Crawford v.
Washington, 541 U.S. 36 (2004).7 The courts had excluded the statements
“in large measure because the statements resulted from an interview lacking
certain procedural safeguards. The court below specifically noted that [the
pediatrician] failed to record the interview on videotape, asked leading
questions, and questioned the child with a preconceived idea of what she
should be disclosing.” Wright, 497 U.S. at 818. The United States Supreme
Court stated, “Although the procedural guidelines propounded by the
court below may well enhance the reliability of out-of-court
statements of children regarding sexual abuse, we decline to read into
the Confrontation Clause a preconceived and artificial litmus test for the
procedural propriety of professional interviews….” Id. (emphasis added).
Thus, the trial court was permitted to consider the reliability of the forensic
____________________________________________
7 Wright deals with the Confrontation Clause, and as Z.G. was available for
cross-examination, that legal concept is not at issue.
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interview procedure in finding that the evidence was admissible under the
TYHA.8
Finally, Appellant’s third claim alleged that his sentence was illegal on
the basis that he is required to register under the Sexual Offender Registration
and Notification Act (“SORNA”), 42 Pa.C.S. §§ 9799.10-9799.42, for a period
of life, which exceeds the otherwise allowable statutory maximum. In
Strafford, supra, we rejected that claim:
SORNA’s registration requirements are an authorized punitive
measure separate and apart from [the] term of incarceration. The
legislature did not limit the authority of a court to impose
registration requirements only within the maximum allowable
term of incarceration; in fact, the legislature mandated the
opposite and required courts to impose registration requirements
in excess of the maximum allowable term of incarceration.
Strafford, 194 A.3d at 173.
Despite both parties citing Strafford elsewhere in their briefs with
respect to the TYHA issue, neither Appellant nor the Commonwealth address
that holding. Instead, Appellant’s brief states: “Counsel raised this issue,
albeit prematurely, wanting to preserve the right to appeal. This issue is still
pending before the appellate courts in Pennsylvania. As such, counsel for …
Appellant withdraws this issue from consideration.” Appellant’s Brief at 17.
Appellant does not specify a case, and it is unclear whether he is seeking to
____________________________________________
8 In Commonwealth v. Walter, 93 A.3d 442 (Pa. 2014), our Supreme Court
approvingly cited the Wright Court’s “particularized guarantees of
trustworthiness” standard in determining whether the “time, content and
circumstances” of hearsay statements possessed “sufficient indicia of
reliability” as demanded by the TYHA.
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present a broader challenge to the legality of his sentence. We note that in
Commonwealth v. Thorne, 276 A.3d 1192 (Pa. 2022), our Supreme Court
held that a constitutional challenge to SORNA’s lifetime period of registration
based on an assertion that SORNA “effectively extends [the] maximum
sentence without a jury’s finding of future dangerousness in violation of
Apprendi v. New Jersey, 530 U.S. 466 (2000),” was not subject to waiver
and remanded to this Court. We, in turn, remanded to the trial court for
further factual development pursuant to Commonwealth v. Torsilieri, 232
A.3d 567 (Pa. 2020). See Commonwealth v. Thorne, 285 A.3d 908 (Pa.
Super. filed Sept. 7, 2022).9
We are mindful that we “may address, and even raise sua sponte,
challenges to the legality of an appellant’s sentence even if the issue was not
preserved in the trial court.” Commonwealth v. Armolt, 294 A.3d 364, 376
(Pa. 2023). Thus, Appellant’s decision to abandon the claim does not end the
matter. However, in Armolt, the Court acknowledged that this does not
obligate the courts to develop the claim for an appellant. “[R]egardless of
whether a particular claim implicates the legality of a sentence, it is well
settled that an appellant bears the burden of sufficiently developing his
arguments to facilitate appellate review.” Id. As Appellant has withdrawn
this claim and offered no further advocacy, we will not develop an argument
____________________________________________
9 The 2020 Torsilieri decision remanded the case to the trial court for further
development, and the Supreme Court heard oral argument on the case on
May 23, 2023.
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on his behalf. Additionally, the fact that ongoing litigation may touch on other
aspects of his sentence calls for us to wait the resolution of those cases, which
have benefited from advocacy devoted to their specific issues. We thus accept
Appellant’s withdrawal of any challenge to the legality of his sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2023
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