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Commonwealth v. Tyson

Superior Court of Pennsylvania

June 10, 2015

COMMONWEALTH OF PENNSYLVANIA, Appellant
v.
JERMEEL OMAR TYSON, Appellee

Argued December 3, 2014

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[Copyrighted Material Omitted]

Page 355

Appeal from the Order June 18, 2013,Court of Common Pleas, Berks County, Criminal Division, No(s): CP-06-CR-0005578-2012. Before PARISI, J.

Kenneth W. Kelecic, Assistant District Attorney, Reading, for Commonwealth, appellant.

Daniel C. Nevins, Reading, for appellee.

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., PANELLA, J., DONOHUE, J., SHOGAN, J., MUNDY, J., OLSON, J., and OTT, J.

OPINION

Page 356

GANTMAN, P.J.

Appellant, the Commonwealth of Pennsylvania, appeals from the order entered in the Berks County Court of Common Pleas, which denied the Commonwealth's motion in limine to introduce at trial Appellee Jermeel Omar Tyson's prior conviction and granted Appellee's corresponding motion in limine to exclude this evidence. We reverse and remand for further proceedings.

The relevant facts and procedural history of this case are as follows. On July 31, 2010, G.B. left work because she felt ill after donating plasma. G.B. asked Appellee, whom she knew casually, to bring her some food. Appellee arrived at G.B.'s apartment and stayed as she fell asleep. During the early morning hours of August 1, 2010, G.B. claims she awoke to find Appellee having vaginal intercourse with her. Appellee told G.B. she had taken her pants off for him. G.B. claims she told Appellee to stop, and he complied. After falling back asleep, G.B. woke again later that night and went into her kitchen, where she allegedly found Appellee naked. G.B. claims she told Appellee she did not want to have sex with him and returned to bed. Shortly thereafter, G.B. claims, she woke up; and Appellee was again having vaginal intercourse with her. G.B. told Appellee to stop and asked him what he was doing. Appellee told G.B. her eyes were open the whole time. G.B. told Appellee to leave her apartment. G.B. then went to a hospital for treatment.

The Commonwealth charged Appellee with rape, sexual assault, indecent assault, and aggravated indecent assault. On May 31, 2013, the Commonwealth filed a motion in limine, which sought to introduce evidence of Appellee's 2001 conviction for rape in Delaware, pursuant to Pa.R.E. 404(b).[1] The Commonwealth's motion in limine was premised on two theories: (1) Appellee's prior rape conviction is admissible to show his rape and assault of G.B. was part of a common scheme or plan; and (2) the prior conviction is admissible to show Appellee did not " mistakenly" conclude G.B. " consented" to sexual intercourse with him. On June 3, 2013, Appellee filed a motion in limine seeking to preclude his prior rape conviction.

Following a hearing, the trial court denied the Commonwealth's motion in limine, granted Appellee's motion in limine, and on June 18, 2013, declared Appellee's prior conviction inadmissible. On July 18, 2013, the Commonwealth filed a timely notice of appeal.[2] By memorandum decision on April 21, 2014, a panel of this Court (with one dissent) affirmed the trial court's order of June 18, 2013. On July 3, 2014, this Court granted the Commonwealth's application for en banc reargument and withdrew the prior memorandum decision.

Page 357

The Commonwealth raises one issue for en banc review:

DID THE [TRIAL] COURT ABUSE ITS DISCRETION IN DENYING THE COMMONWEALTH'S MOTION IN LIMINE TO INTRODUCE EVIDENCE OF [APPELLEE'S] PRIOR CRIME AND GRANTING [APPELLEE'S] MOTION IN LIMINE, WHERE SAID EVIDENCE IS ADMISSIBLE PURSUANT TO PA.R.E. 404(B)?

( Commonwealth's Brief at 4).

In its sole issue, the Commonwealth argues the facts of the present case and the facts of Appellee's prior rape conviction demonstrate that Appellee engaged in a pattern of non-consensual sexual intercourse with acquaintances who were in an unconscious or diminished state. The Commonwealth contends that in each case, Appellee deliberately took advantage of the victim's diminished state and inability to consent. The Commonwealth highlights numerous similarities between the two incidents: (1) the victims were the same race and similar in age; (2) both victims were casually acquainted with Appellee; (3) Appellee's initial interaction with each victim was legitimate, where Appellee was invited into the victim's home; (4) Appellee had vaginal intercourse with each victim in her bedroom; (5) both incidents involved vaginal intercourse with an alleged unconscious victim who woke up in the middle of the act; and (6) in each case, Appellee knew the victim was in a compromised state. The Commonwealth asserts the period between the two incidents is only five years, when we exclude the time Appellee spent in prison on the prior rape conviction, and the passage of five years' time is outweighed by the similarities of the two acts. In light of these similarities, the Commonwealth claims Appellee's prior conviction is admissible under the common plan or scheme exception to Rule 404, which generally prohibits evidence of prior crimes.

The Commonwealth further argues Appellee's prior conviction is admissible under the absence of mistake or accident exception, namely, to show Appellee made no mistake when he assessed G.B.'s ability to consent to sexual intercourse. The Commonwealth submits Appellee concedes identity will be a non-issue at trial, so the key issue for the factfinder is whether G.B. consented. The Commonwealth insists evidence of Appellee's prior conviction is necessary to counter Appellee's consent defense and show that, as in the previous case, Appellee knowingly took advantage of an unconscious victim. For either the common plan or absence of mistake exceptions, the Commonwealth asserts evidence of Appellee's prior conviction would not be unduly prejudicial. The Commonwealth stresses this highly probative evidence would aid the jury in its determination of Appellee's state of mind when he twice initiated vaginal intercourse with G.B.; whereas the absence of this evidence would leave the jury to rely solely on G.B.'s testimony regarding the issue of consent. For all of these reasons, the Commonwealth concludes the trial court abused its discretion when it excluded evidence of Appellee's prior conviction. We agree.

" Admission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion." Commonwealth v. Drumheller, 570 Pa. 117, 135, 808 A.2d 893, 904 (2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2284, 156 L.Ed.2d 137 (2003) (quoting Commonwealth v. Stallworth, 566 Pa. 349, 363, 781 A.2d 110, 117 (2001)); Commonwealth v. Collins, 70 A.3d 1245, 1251 (Pa.Super. 2013). " An abuse of discretion is not

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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, 2005 PA Super 335, 884 A.2d 920, 924 (Pa.Super. 2005), appeal denied, 593 Pa. 726, 928 A.2d 1289 (2007).

Relevance is the threshold for admissibility of evidence. Commonwealth v. Cook, 597 Pa. 572, 602, 952 A.2d 594, 612 (2008). Pennsylvania Rule of Evidence 401 provides as follows:

Rule 401. Test for Relevant Evidence
Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.

Pa.R.E. 401. " Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption regarding a material fact." Drumheller, supra at 135, 808 A.2d at 904. " All relevant evidence is admissible, except as otherwise provided by law. Evidence that is not relevant is not admissible." Pa.R.E. 402. " The court may exclude relevant evidence if its probative value is outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Pa.R.E. 403.

Pennsylvania Rule of Evidence 404(b) provides as follows:

Rule 404. Character Evidence; Crimes or Other Acts
* * *
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other 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.
(2) Permitted Uses. This 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)(1)-(2). " [E]vidence of prior crimes is not admissible for the sole purpose of demonstrating a criminal defendant's propensity to commit crimes." Commonwealth v. Melendez-Rodriguez, 2004 PA Super 334, 856 A.2d 1278, 1283 (Pa.Super. 2004). Nevertheless, " [e]vidence may be admissible in certain circumstances where it is relevant for some other legitimate purpose and not utilized solely to blacken the defendant's character." Id. Specifically, other crimes evidence is admissible if offered for a non-propensity purpose, such as proof of an actor's knowledge, plan, motive, identity, or absence of mistake or accident. Commonwealth v. Chmiel, 585 Pa. 547, 889 A.2d 501 (2005). When offered for a legitimate purpose, evidence of prior crimes is admissible if its probative value outweighs its potential for unfair prejudice. Commonwealth v. Hairston, 624 Pa. 143, 84 A.3d 657 (2014), cert. denied, __ U.S. __, 135 S.Ct. 164, 190 L.Ed.2d 118 (2014).

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

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that the evidence reveals criminal conduct which is distinctive and so nearly identical as to become the signature of the same perpetrator. Relevant to such a finding will be the habits or patterns of action or conduct undertaken by the perpetrator to commit crime, as well as the time, place, and types of victims typically chosen by the perpetrator. 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., 2007 PA Super 169, 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, 2010 PA Super 29, 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 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).

Evidence of a prior crime may also be admitted to show a defendant's actions were not the result of a mistake or accident, " where the manner and circumstances of two crimes are remarkably similar." Commonwealth v. Kinard, 2014 PA Super 41, 95 A.3d 279, 294-95 (Pa.Super. 2014). See Commonwealth v. Sherwood, 603 Pa. 92, 982 A.2d 483 (2009) (holding evidence of defendant's prior physical assaults of child was admissible to show absence of mistake or accident in prosecution for intentional beating death of child); Commonwealth v. Boczkowski, 577 Pa. 421, 846 A.2d 75 (2004) (holding evidence of defendant's murder of former wife was admissible to show absence of accident in prosecution for murder of defendant's second wife, where both victims were found dead in bathtub or hot tub in highly similar circumstances).

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Evidence of relevant prior crimes is admissible " if the probative value of the evidence outweighs its potential for unfair prejudice." Kinard, supra at 284. " 'Unfair 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." Commonwealth v. Dillon, 592 Pa. 351, 366, 925 A.2d 131, 141 (2007) (quoting Pa.R.E. 403 comment ).

Evidence will not be prohibited merely because it is harmful to the defendant. This Court has stated that it is not 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. Moreover, we have upheld the admission of other crimes evidence, when relevant, even where the details of the other crime were extremely grotesque and highly prejudicial.

Id. at 367, 925 A.2d at 141. " Additionally, when examining the potential for undue prejudice, a cautionary jury instruction may ameliorate the prejudicial effect of the proffered evidence. ... Jurors are presumed to follow the trial court's instructions." Hairston, supra at 160, 84 A.3d at 666 (holding extraneous offense of arson was admissible under Rule 404(b) as res gestae evidence in prosecution for murder; trial court's instruction on how arson evidence should be considered minimized likelihood that arson evidence would inflame jury or cause it to convict defendant on improper basis).

Instantly, the record reveals the following factual similarities between the present case and Appellee's prior rape conviction. In each case, Appellee was acquainted with the victim--a black female in her twenties--and he was an invited guest in the victim's home. Appellee was aware that each victim was in a weakened or compromised state. Each victim ultimately lost consciousness. In each case, the victim awoke in her bedroom in the early morning hours to find Appellee having vaginal intercourse with her. The evidence of Appellee's prior rape passes the basic relevance threshold, as it tends to increase the probability that Appellee knowingly had non-consensual sex with G.B. in the present case. See Drumheller, supra. The relevant details and surrounding circumstances of each incident further reveal criminal conduct that is sufficiently distinctive to establish Appellee engaged in a common plan or scheme. See G.D.M., Sr., supra. The factual overlap between the two incidents goes beyond the commission of crimes or conduct " of the same general class." The evidence does not merely show Appellee sexually assaulted two different women or that Appellee's actions are generically common to many sexual assault cases. To the contrary, the incidents reflect a clear pattern where Appellee was legitimately in each victim's home; Appellee was cognizant of each victim's compromised state; and Appellee had vaginal intercourse with each victim in her bedroom in the middle of the night while the victim was unconscious.[3]

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G.B.'s claim, that she again fell asleep and again awoke to find Appellee having non-consensual sex with her a second time, only reinforces the conclusion that Appellee engaged in a common scheme of nonconsensual intercourse with unconscious victims. The evidence of a second instance of non-consensual sex between Appellee and G.B. tends to show Appellee saw and seized yet another opportunity to have non-consensual vaginal intercourse with a female acquaintance whose unconscious state rendered her unable to consent or to resist verbally or physically. Additionally, Appellee's dispute that G.B. was asleep, when Appellee initiated sexual intercourse with her, is an issue for the factfinder to determine at trial. The purpose of introducing Appellee's prior conviction is to aid the jury in that determination and to counter Appellee's anticipated defense of consent. Appellee should not be able to create a " difference" between the two incidents simply by disputing the Commonwealth's proffered facts. We conclude the circumstances of each incident are sufficiently similar to satisfy the common plan or scheme exception to Rule 404.

We further conclude the evidence of Appellee's prior rape conviction is not too remote in time to negate its probative value. The Commonwealth is correct to state that Appellee's time spent in prison must be excluded in the calculation of how much time has elapsed since the prior crime. See Commonwealth v. Rush, 538 Pa. 104, 646 A.2d 557 (1994) (excluding defendant's period of incarceration from relevant time period for remoteness analysis, where eight years separated commission of crimes in question); Commonwealth v. O'Brien, 2003 PA Super 425, 836 A.2d 966 (Pa.Super. 2003), appeal denied, 577 Pa. 695, 845 A.2d 817 (2004) (holding defendant's prior ten-year old convictions were not too remote in time, and defendant was paroled five years before the current offense). Appellee committed the prior offense ten years before the current incident, but Appellee was incarcerated for five of those years for the prior offense. Therefore, the relevant look-back period is five years for purposes of the remoteness analysis. See id. This Court has held evidence admissible under the common scheme exception in the context of even longer time lapses. See Aikens, supra (holding ten-year lapse was not excessive); Luktisch, supra (holding six-year lapse was not excessive). Additionally, the similarities of the two incidents render the fiveyear time gap even less important. See Aikens, supra. The record does not support a finding of an excessive lapse of time between the incidents, which is, in any case, only one factor in the common scheme analysis, but not the dispositive factor.

Additionally, the probative value of Appellee's prior conviction outweighs its potential for unfair prejudice. The prior conviction should not be shielded from the factfinder merely because it is harmful to Appellee; the question is whether evidence of Appellee's prior conviction would be unduly prejudicial. See Dillon, supra. The substantial similarity between the two incidents gives the evidence of Appellee's previous crime considerable probative value. In light of the important similarities, the nature of Appellee's prior crime alone does not render it unduly prejudicial. See Commonwealth v. Frank, 395 Pa.Super. 412, 577 A.2d 609 (Pa.Super. 1990) (holding admission of

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evidence of appellant's prior sexual assaults of children under common plan exception was not unduly prejudicial where assaults possessed high degree of similarity and court issued cautionary instructions). Moreover, to alleviate the potential for unfair prejudice, the court can issue a cautionary instruction to the jury, to advise the jury of the limited purpose of the evidence and to clarify that the jury cannot treat the prior crime as proof of Appellee's bad character or criminal tendencies. See id.; Hairston, supra. Jurors are presumed to follow the trial court's instructions. See id.

Importantly, one factor in the " undue prejudice" analysis--the Commonwealth's need to present evidence under the common plan exception--weighs heavily in favor of the Commonwealth. Identity is not an issue in this case, as Appellee acknowledges he had sexual intercourse with G.B. on the day in question. The only issue is consent. If evidence of Appellee's prior conviction is excluded, the Commonwealth must rely solely on the uncorroborated testimony of G.B. to counter Appellee's defense of consent to vaginal intercourse. Thus, the Commonwealth has a significant need for the prior crime evidence to prove Appellee had non-consensual sex with G.B. See G.D.M., Sr., supra. See also Commonwealth v. Gordon, 543 Pa. 513, 673 A.2d 866 (1996) (holding evidence of appellant's similar prior sexual assaults was not unduly prejudicial where Commonwealth was required to prove non-consensual touching occurred; evidence was necessary for prosecution of case, where uncorroborated testimony of victim might lead jury to determine there was reasonable doubt as to whether appellant committed crime). Given the substantial similarity between the current incident and Appellee's prior crime, and the importance of the common scheme evidence to the Commonwealth's case, we conclude the trial court abused its discretion when it found Appellee's prior conviction was inadmissible under the common scheme exception to Rule 404.

Likewise, the trial court should have declared the evidence of Appellee's prior rape conviction admissible under the absence of mistake or accident exception to Rule 404.[4] Appellee disputes G.B.'s account that she was asleep when Appellee initiated sexual intercourse with her--Appellee maintains he thought G.B. consented to the act. Given the relevant similarities between the two incidents, evidence of Appellee's prior rape would tend to prove he did not " mistakenly believe" G.B. was awake or gave her consent. Appellee was invited into G.B.'s home for another reason, Appellee knew G.B. was in a compromised state, and G.B. awoke to find Appellee having vaginal intercourse with her. Appellee's prior conviction would likewise show he had been invited into the home of

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an acquaintance, knew the victim was in a compromised state, and had non-consensual sex with the victim while the victim was unconscious. The prior conviction would tend to prove Appellee was previously in a very similar situation and suffered legal consequences from his decision to have what proved to be nonconsensual vaginal intercourse with an unconscious victim. Thus, the evidence would tend to show Appellee recognized or should have recognized that, as with T.B., G.B.'s physical condition rendered her unable to consent. The jury must have a chance to decide if Appellee, in light of his past legal experience and conviction for a substantially similar criminal episode, could have reasonably concluded G.B.'s consent was possible under comparable circumstances.

As with the common scheme exception, certain differences between the two incidents--such as the exact reason the victim was in a compromised state--are not essential to the question of whether Appellee mistakenly believed G.B. consented to sexual intercourse. The evidence of Appellee's prior crime is highly probative of the fact that Appellee could not have reasonably believed G.B. was conscious enough to give her consent. Rather, the evidence of the prior conviction tends to prove Appellee intentionally exploited another opportunity to take advantage of a woman sexually, when he knew the woman was in a diminished state. The prior crime at issue fits within the absence of mistake or accident exception to Rule 404. See Kinard, supra. Given the established similarity between the incidents, we conclude Appellee's prior conviction is highly probative on the issue of consent, but not so remote in time or unduly prejudicial as to bar its admission under the absence of mistake or accident exception to Rule 404. See Dillon, supra; Aikens, supra. Our previous analysis of " undue prejudice" and remoteness with respect to the common plan or scheme exception is equally applicable in the context of the absence of mistake or accident exception.

Based on the foregoing, we hold evidence of Appellee's prior conviction is admissible under both the common plan or scheme and the absence of mistake or accident exceptions to Rule 404. Thus, we reverse the trial court's order excluding this evidence.

Order reversed; case remanded for further proceedings. Jurisdiction is relinquished.

Judgment Entered.

DISSENTING OPINION

DONOHUE, J.

Because I disagree with the learned Majority's conclusion that the circumstances surrounding Tyson's prior rape conviction and the instant matter are sufficiently similar to satisfy the common plan or scheme and absence of mistake exceptions to Rule 404(b) of the Pennsylvania Rules of Evidence, I respectfully dissent. In my view, the Majority's analysis overemphasizes the few similarities that exist between Tyson's prior rape conviction and the present matter while completely dismissing the several important differences between the two incidents. The Majority also incorrectly resolves the issues of remoteness and undue prejudice, with its analysis on these points clearly influenced by its desire to find the evidence of Tyson's prior rape conviction admissible. I also believe that the Majority's analysis of the Commonwealth's need to present the evidence of the prior rape conviction misconstrues existing case law

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to permit prior acts evidence to bolster the credibility of the Commonwealth's only witness where there is no indication that the witness is otherwise impeachable. Based on the certified record on appeal, I would conclude that Tyson's prior rape conviction was not admissible under either the common plan or scheme or the absence of mistake exceptions to Rule 404(b).

As the Majority recognizes, Rule 404(b)(1) of the Pennsylvania Rules of Evidence provides that " [e]vidence of a crime, wrong, or other 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). Our Supreme Court has explained:

The purpose of this rule is to prevent the conviction of an accused for one crime by the use of evidence that he has committed other unrelated crimes, and to preclude the inference that because he has committed other crimes he was more likely to commit that crime for which he is being tried. The presumed effect of such evidence is to predispose the minds of the jurors to believe the accused guilty, and thus effectually to strip him of the presumption of innocence[.]

Commonwealth v. Spruill, 480 Pa. 601, 391 A.2d 1048, 1049-50 (Pa. 1978) (quotations and citations omitted). Rule 404(b)(2) also provides that " [t]his evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Pa.R.E. 404(b)(2). In a criminal matter, " this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice." Id.

Recently, our Supreme Court explained the common plan or scheme exception as follows:

Evidence of other crimes is said to be admissible [to] prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused. Here much more is demanded than the mere repeated commission of crimes of the same class, such as repeated burglaries or thefts. The device used must be so unusual and distinctive as to be like a signature.

Commonwealth v. Roney, 622 Pa. 1, 79 A.3d 595, 606 (Pa. 2013) (quotations and citation omitted), cert. denied, 135 S.Ct. 56, 190 L.Ed.2d 56 (2014).

Under the G.D.M., Sr. framework quoted by the Majority, see Maj. Op. at 7-8, courts must examine the following: (1) whether the details and surrounding circumstances of each criminal incident reveal criminal conduct that is distinctive and so nearly identical that it represents the signature of the same perpetrator; (2) if the criminal conduct represents the signature of the same perpetrator, whether the common plan or scheme evidence is too remote in time; and (3) if the common plan or scheme evidence represents the signature of the same perpetrator and is not too remote in time, whether the probative value of the evidence is outweighed by its potential prejudicial impact. See Commonwealth v. G.D.M., Sr., 2007 PA Super 169, 926 A.2d 984, 987 (Pa. Super. 2007). My examination of the certified record in the case at bar reveals insufficient similarities between the two criminal incidents to permit the admission of the evidence of the earlier conviction, as there is inadequate evidence to conclude that the methods employed by Tyson were " distinctive and so nearly identical as to become the signature of the same perpetrator." See id.

The Majority relies on the following facts in concluding that this case falls within

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the common plan or scheme exception to Rule 404(b):

In each case, [Tyson] was acquainted with the victim--a black female in her twenties--and he was an invited guest in the victim's home. [Tyson] was aware that each victim was in a weakened or compromised state. Each victim ultimately lost consciousness. In each case, the victim awoke in her bedroom in the early morning hours to find [Tyson] having vaginal intercourse with her.

Maj. Op. at 11.

In my opinion, the Majority strips the details of the facts from the incidents in order to incorrectly conclude that these simplified likenesses make Tyson's prior rape conviction sufficiently similar to the instant matter, warranting the admission of Tyson's prior crime under the common plan or scheme exception. Further analysis of the two incidents reveals several important dissimilarities. For example, the record reflects that the context in which Tyson was in T.B.'s home and G.B.'s home was entirely different. For his prior rape conviction, T.B.'s brother invited Tyson into their home for a party. See N.T., 6/6/13, Exhibit C-1 at 3. Here, G.B. herself invited Tyson into her home because she was feeling ill. Commonwealth's Motion In Limine to Introduce Evidence of Defendant's Prior Crime (hereinafter " Commonwealth's Motion In Limine" ), 5/31/13, ¶ ¶ 3-4. G.B. also asked Tyson to bring her food. Id. ¶ 4. Because G.B. and Tyson were friends with each other, and because he stayed at her home late into the night, it logically follows that some form of direct social interaction occurred between the two throughout the evening. This differs greatly from the absence of social interaction that took place between Tyson and T.B. before the events that led to Tyson's prior rape conviction because he was at T.B.'s home partying and drinking as a friend of T.B.'s brother along with several other individuals. See N.T., 6/6/13, Exhibit C-1 at 3-4.

The Majority relies heavily on the fact that during each event, Tyson allegedly had sexual intercourse with T.B. and G.B. while each was sleeping. See Maj. Op. at 11-12. My review of the record, however, once again reveals important differences. For his prior rape conviction, there was no dispute that T.B. was sleeping when Tyson began having sexual intercourse with her. See N.T., 6/6/13, Exhibit C-1 at 3. For the instant crime, Tyson disputes G.B.'s claims that she was sleeping when he began having sexual intercourse with her. See Commonwealth's Motion In Limine, 5/31/13, P 10. In fact, G.B. herself stated that the second time she awoke to find Tyson having sexual intercourse with her, she asked him what he was doing and he responded: " What do you mean? Your eyes were open the whole time." Id.

When examined closely, other similarities relied upon by the Majority to support the admissibility of the prior conviction are likewise unremarkable and not indicative of a signature crime. The Majority points out that Tyson was previously acquainted with both T.B. and G.B. See Maj. Op. at 11. As previously noted, the record reflects that the two relationships clearly differed. Tyson was an acquaintance of T.B. because he was friends with her brother, while Tyson and G.B. were friends with each other. Similarly, while the Majority is correct that Tyson was in both T.B.'s home and G.B.'s home into the early morning hours, see id., the reasons for this differ markedly, as Tyson was at T.B.'s home for her brother's party, but was an invited guest in G.B.'s home because she invited him to be there. See N.T., 6/6/13, Exhibit C-1 at 3-4; Commonwealth's Motion In Limine, 5/31/13,

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¶ ¶ 3-4. Additionally, I find it unremarkable that both events occurred in T.B.'s and G.B.'s bedrooms - another similarity relied upon by the Majority. See Maj. Op. at 11. This is not indicative of a signature crime because on both occasions, the events at issue occurred when T.B. and G.B. were in bed, making their bedrooms the obvious and expected location. Furthermore, that both T.B. and G.B. were in their twenties is likewise insignificant, considering that Tyson was in his twenties and early thirties, respectively, when each event occurred. Contrary to the Majority's opinion, there is nothing remarkable or remotely " signature" about an adult individual spending time with and engaging in sexual intercourse with other adults close in age.

My esteemed colleagues dismiss these distinguishing characteristics between Tyson's prior rape conviction and the instant matter, stating that " [t]o the extent differences exists [sic] between the two incidents, these differences concern details that are not essential to the alleged common scheme of [Tyson]." Maj. Op. at 11-12 n.3. Consequently, the Majority found wholly inconsequential that Tyson was in T.B.'s and G.B.'s homes for different reasons, contending that the common plan or scheme

does not require the sexual assault of a women who became tired or weak specifically after donating plasma. The salient facts of each case are that [Tyson] was allowed into the home of an acquaintance, and [Tyson] knew each victim was in a compromised state. After each victim lost consciousness in the early morning hours, [Tyson] had vaginal intercourse with each victim in essentially the same manner.

Id.

In my opinion, the Majority's limited analysis of the differences between the two incidents completely misses the point of the common plan or scheme exception. The Majority essentially contends that the differences between Tyson's prior rape conviction and the instant case do not matter. These facts, however, are precisely the type of characteristics that, if similar, would make the two incidents " distinctive and so nearly identical as to become the signature of the same perpetrator." See G.D.M., Sr., 926 A.2d at 987.

As it stands, the Majority is willing to invoke the common plan or scheme exception, not for the commission of " signature" crimes, as the standard requires, but for the commission of crimes of the same general class, namely a statutorily defined type of rape. Section 3121(a)(3) of the Pennsylvania Crimes Code states that an individual commits the crime of rape " when the person engages in sexual intercourse with a complainant ... [w]ho is unconscious or where the person knows that the complainant is unaware that the sexual intercourse is occurring." 18 Pa.C.S.A. § 3121(a)(3). According to what the Majority classifies as the " salient facts" of the two incidents, the commission of section 3121(a)(3) rape is the sole similarity between Tyson's prior rape conviction and the alleged crime that occurred in this case. This Court has acknowledged that " [t]he essential elements of the act of rape, as well as other sexual crimes, will necessarily produce any number of similar characteristics when two acts of rape are scrutinized for shared features[.]" Commonwealth v. Frank, 395 Pa.Super. 412, 577 A.2d 609, 614 (Pa. Super. 1990) (quotations and citation omitted). Therefore, under the Majority's analysis, evidence is admissible as a common plan or scheme simply because a person has allegedly committed the same crime twice. This is in direct contravention to the general rule excluding

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evidence of other crimes. See Pa.R.E. 404(b)(1); Spruill, 391 A.2d at 1049-50.

Furthermore, another notable and distinguishing factor between the Tyson's prior rape conviction and the current matter is the fact that G.B. allegedly awoke to find Tyson engaging in unwanted sexual contact with her only to soon thereafter fall back to sleep and have Tyson allegedly engage in non-consensual sexual intercourse with her again. Affidavit of Probable Cause, 11/13/12. According to the Commonwealth's affidavit of probable cause, G.B. indicated that after the first time she awoke to find Tyson having sexual intercourse with her, she told him to stop, fell asleep again, and then awoke to find Tyson naked in her kitchen. Id. After she allegedly told him again that she did not want to have sex with him, she went back to sleep and awoke once more to find Tyson having sexual intercourse with her. Id. Similar events are totally absent from the incident that resulted in Tyson's prior rape conviction. See N.T., 6/6/13, Exhibit C-1 at 3.

The Majority asserts that this distinguishing series of events " only reinforces the conclusion that [Tyson] engaged in a common scheme of non-consensual intercourse with unconscious victims" and that it tends to show that Tyson " saw and seized yet another opportunity to have non-consensual vaginal intercourse with a female acquaintance whose unconscious state rendered her unable to consent or to resist verbally or physically." Maj. Op. at 12. While this may be true, this evidence also tends to show Tyson had consent to engage in sexual contact with G.B., especially in light of his claim that G.B. was awake during this encounter. Nevertheless, it is undisputed that this series of events is unlike anything that occurred during Tyson's prior rape, further distinguishing the two incidents.

Therefore, in my view, while there are some similarities between Tyson's prior rape and this case, these similarities do not satisfy the standard of being " distinctive and so nearly identical as to become the signature of the same perpetrator." See G.D.M., Sr., 926 A.2d at 987. To the contrary, the similarities between the two incidents establish, at most, the commission of crimes or conduct of the same class, namely sexual assault. See Roney, 79 A.3d at 606. In this regard, neither incident provides proof of any particular distinctive pattern of behavior, and therefore, does not provide evidence of a " signature" crime. Accordingly, I must conclude that the trial court did not err in finding that the facts surrounding Tyson's prior rape conviction and this case did not present a common plan or scheme and properly excluded the evidence of his prior conviction.

Moreover, our Court has held that " 'the importance of the time period is inversely proportional to the similarity of the crimes in question.'" Commonwealth v. Aikens, 2010 PA Super 29, 990 A.2d 1181, 1185 (Pa. Super. 2010) (quoting Commonwealth v. Luktisch, 451 Pa.Super. 500, 680 A.2d 877, 879 (Pa. Super. 1996)). Thus, in my opinion, because of the dissimilarities inherent in the two incidents, the ten-year gap (or even the five-year gap that the Majority asks for us to contemplate) weighs heavily against the admission of Tyson's prior rape conviction. See Commonwealth v. Shively, 492 Pa. 411, 424 A.2d 1257, 1259 (Pa. 1981) (excluding evidence of a prior bad act that occurred only seven months prior where the Court failed to " perceive enough similarity between the two episodes to allow admission of the prior activity" ).

I further agree with the trial court's finding that " if the conviction was allowed[,] it would be so prejudicial and inflammatory as to outweigh its evidentiary value." Trial Court Opinion, 9/18/13, at

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4. Our Court has long held that " [t]he Commonwealth must prove beyond a reasonable doubt that a defendant has committed the particular crime of which he is accused, and it may not strip him of the presumption of innocence by proving that he has committed other criminal acts." Commonwealth v. Ross, 2012 PA Super 220, 57 A.3d 85, 98-99 (Pa. Super. 2012) (en banc), appeal denied, 621 Pa. 657, 72 A.3d 603 (Pa. 2013). While I reach the conclusion that evidence of Tyson's prior rape conviction is not admissible under the common plan or scheme exception, I do so while acknowledging that there are some similarities present between the two incidents; namely, alleged non-consensual sexual intercourse with a sleeping victim. Therefore, given that similarity between the two incidents, it is entirely possible that evidence of Tyson's prior rape conviction could lead the factfinder to believe that Tyson raped G.B. without regard to the facts of this case, which are significantly dissimilar to the prior case. Thus, the prior conviction's prejudicial impact on Tyson's case far outweighs any probative evidentiary value.

Although the learned Majority acknowledges the prejudicial nature of the evidence, it nonetheless asserts that the trial court can avoid the potential for unfair prejudice by offering a cautionary instruction " to advise the jury of the limited purpose of the evidence and to clarify that the jury cannot treat the prior crime as proof of [Tyson]'s bad character or criminal tendencies." Maj. Op. at 14. In other words, the Majority believes that instructing the jury to ignore the very reason for which the Commonwealth seeks to offer the evidence of Tyson's prior rape conviction will prevent any unfair prejudice. See id. This further supports the notion that the evidence of Tyson's prior rape conviction, in the manner in which the Commonwealth seeks to introduce it, is unfairly prejudicial.

The Majority also places undue emphasis on the Commonwealth's need to present evidence. See id. at 14-15. The Majority contends that because identity is not an issue in this case, and the only issue is whether Tyson had consent to engage in sexual contact with G.B., " [i]f evidence of [Tyson]'s prior conviction is excluded, the Commonwealth must rely solely on the uncorroborated testimony of G.B. to counter [Tyson]'s defense of consent to vaginal intercourse." Id. In my view, however, it is entirely possible that G.B.'s testimony could cause a jury to find that she did not consent to engage in sexual contact with Tyson. The most direct source of evidence of whether G.B. consented to sexual contact with Tyson is G.B. More troubling is that based on the Majority's conclusion, in every case where the sole evidence is the testimony of the victim, the Commonwealth's need to present the prior bad acts evidence will trump the prohibition on the presentation of such evidence.

The Majority relies on Commonwealth v. Gordon, 543 Pa. 513, 673 A.2d 866 (Pa. 1996), in support of its argument that the Commonwealth has demonstrated a need to present evidence of Tyson's prior rape conviction. See Maj. Op. at 14-15. In Gordon, our Supreme Court held that " [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." Gordon, 673 A.2d at 870. The Supreme Court determined in that case that

the Commonwealth was required to prove that a non-consensual touching occurred, the purpose of which was sexual gratification. [The defendant] 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

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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.

Id.

Gordon is clearly distinguishable from the instant matter. Here, Tyson readily admits that he had sexual contact with G.B. The only issue that the parties dispute, as the Majority acknowledges, is whether Tyson had consent to engage in such contact. In Gordon, however, the defendant denied that he ever touched the alleged victim at all. Id. Thus, because Tyson admits to engaging in sexual contact with G.B., and the only issue is consent, the most direct source of whether Tyson had consent, as stated above, is G.B. Thus, the Commonwealth's need to present evidence here is not akin to that in Gordon.

This case is also distinguishable from other cases in which this Court has found that the Commonwealth had demonstrated a need to present prior bad acts evidence. For example, this Court has held that the Commonwealth demonstrated a need to present evidence of a defendant's prior bad acts where the alleged victim in a sexual assault case failed to promptly report the molestation. Commonwealth v. Smith, 431 Pa.Super. 91, 635 A.2d 1086, 1090 (Pa. Super. 1993); Commonwealth v. Frank, 395 Pa.Super. 412, 577 A.2d 609, 618 (Pa. Super. 1990). Our Court also found that the Commonwealth demonstrated a need for prior bad acts evidence where the defendant had the ability to attack the credibility of the victims. Commonwealth v. Luktisch, 451 Pa.Super. 500, 680 A.2d 877, 879 (Pa. Super. 1996). Here, the record reflects that G.B. promptly reported the alleged sexual assault, see Affidavit of Probable Cause, 11/13/12, and there is no indication in the record that Tyson will be able to attack G.B.'s credibility. Accordingly, there is no support for the Majority's argument that the Commonwealth demonstrated a need to present evidence of Tyson's prior rape conviction.

I also respectfully disagree with the Majority's conclusion that Tyson's prior rape conviction is admissible pursuant to the absence of mistake exception to Rule 404(b). Because the application of the common plan or scheme and absence of mistake exceptions are similar in nature, I rely on my analysis of the common plan or scheme exception as applied in this case. See Commonwealth v. Boczkowski, 577 Pa. 421, 846 A.2d 75, 86 (Pa. 2004) (stating that courts may admit prior bad acts evidence under the " absence of mistake or accident" exception where " the manner and circumstances" of two crimes are " remarkably similar" ). Based on that analysis, I cannot conclude that Tyson's prior rape conviction is " remarkably similar" to the instant matter.

In its analysis of the applicability of the absence of mistake exception, the Majority once again simply dismisses the differences between the two incidents, concluding that " the exact reason the victim was in a compromised state - [is] not essential to the question of whether [Tyson] mistakenly believed G.B. consented to sexual intercourse." Maj. Op. at 17 (emphasis in original). Although the reason T.B. and G.B. were in a compromised state is not probative of whether Tyson had consent to engage in sexual contact with G.B., it is nonetheless important to the determination of whether the two incidents were " remarkably similar." See Boczkowski, 846 A.2d at 86.

Notably, the Majority points to Tyson having been acquaintances with both T.B. and G.B. and an invited guest in each of their homes as similarities between the two incidents. See Maj. Op. at 16. These similarities between the two incidents

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are not probative of whether Tyson had consent to engage in sexual contact with G.B., but the Majority nonetheless relies on them in applying the absence of mistake exception. The Majority cannot rely on those two similarities to argue that the absence of mistake exception applies while dismissing the differences that exist between the two incidents as not probative of the determination of consent. The Majority's disregard for the differences between the two incidents ignores the standard for admitting prior bad acts evidence under the absence of mistake exception.

Finally, I cannot emphasize enough that our standard of review requires a finding of an abuse of discretion by the trial court. Commonwealth v. Flamer, 2012 PA Super 186, 53 A.3d 82, 86 (Pa. Super. 2012). " [A]n abuse of discretion may not be found merely because the appellate court might have reached a different conclusion[.]" Commonwealth v. Williams, 2014 PA Super 88, 91 A.3d 240, 248-49 (Pa. Super. 2014) (quoting Commonwealth v. Garcia, 443 Pa.Super. 414, 661 A.2d 1388, 1394-95 (Pa. Super. 2004)). Here, the trial court heard argument on this matter and made a decision that is supported by the evidence of record. The trial court found that the evidence of Tyson's prior rape conviction did not fit within the common plan or absence of mistake exceptions to the rule precluding evidence of prior crimes. Trial Court Opinion, 9/18/13, at 4. Although there is one central similarity alleged between Tyson's prior rape conviction and the current matter, i.e., a sleeping victim, I cannot conclude, based on my review of the certified record and pertinent case law, that the trial court abused its discretion in refusing to focus solely on this similarity in making its decision.

Based on the foregoing, I would conclude that the trial court did not abuse its discretion by excluding the evidence of Tyson's prior rape conviction and would therefore affirm.

Bender, P.J.E. and Ott, J. join this Dissenting Opinion.


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