Argued December 3, 2014
[Copyrighted Material Omitted]
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.
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). 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. 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.
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
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 ...