from the Judgment of Sentence April 21, 2015 In the Court of
Common Pleas of Washington County Criminal Division at No(s):
BEFORE: OLSON, STABILE and STRASSBURGER, [*] JJ.
John Yocolano, appeals from the judgment of sentence entered
on April 21, 2015, following his jury trial convictions for
three counts of indecent assault, two counts of sexual
assault, and one count each of rape, kidnapping, involuntary
deviate sexual intercourse (IDSI), aggravated assault, simple
assault, unlawful restraint, terroristic threats, and false
imprisonment. Upon careful consideration, we are
constrained to vacate the judgment of sentence and remand for
a new trial.
summarize the facts as presented at trial as follows. A.A.
and Appellant had a tumultuous romantic relationship over the
course of several years. In 2010, A.A. and Appellant lived
together. On December 19, 2010, police responded to a call
stating that Appellant had an altercation with A.A. wherein
Appellant kicked in an exterior door, breaking the lock and
then chased A.A. around her father's house. A.A. ended
her relationship with Appellant, but then resumed it several
December 2011, Appellant and A.A. moved in to an apartment
together after A.A. found out that she was pregnant. On March
13, 2012, Appellant threatened A.A. with a machete during a
verbal altercation. Police responded to the scene, but no
criminal charges were filed. Appellant and A.A. continued
living together and their son was born in May 2012.
16, 2012, A.A. called the police in response to another
argument, but after the altercation, she continued living
with Appellant. On July 27, 2012, police responded to an
emergency call from A.A. claiming that Appellant expressed
suicidal thoughts and left the residence following an
argument between the parties.
August 2012, the parties became engaged to be married. On
September 1, 2012, A.A. filed a police report claiming
Appellant threatened and choked her. Police recommended that
A.A. file a petition for Protection from Abuse (PFA), but she
did not. On September 19, 2012, Appellant punched A.A. in the
head and stomach and threatened to kill her and her family.
On September 21, 2012, police responded to a call from
Appellant wherein he claimed A.A. and their child were
missing for two days. Upon investigation, police found A.A.
at her father's house along with the couple's child.
On October 4, 2012, A.A. obtained a final PFA against
Appellant. In November 2012, the parties again attempted
reconciliation, but A.A. and the couple's child moved in
with another man.
December 2012, A.A. filed a petition to withdraw the PFA
against Appellant and a hearing was scheduled in January
2013. When A.A. relayed this information to Appellant, he
became angry. At the time, the parties' son was in
Appellant's custody and he told A.A. to retrieve the
child. A.A. testified that when she arrived at
Appellant's residence, he lured her inside, locked the
door, punched her in the face, and began strangling her. A.A.
stated that Appellant carried her to the bedroom where he
tied her wrists and ankles with an electrical cord and
forcibly removed her clothes. Over the next few hours,
Appellant removed and retied the bindings several times while
forcing multiple acts of vaginal and oral intercourse on A.A.
Following the assault, Appellant instructed A.A. to shower.
When A.A.'s friend came to Appellant's residence to
inquire about her whereabouts, A.A. escaped and went directly
to local police to report the incident. She was taken by
ambulance to the hospital where medical staff documented
bruises to A.A.'s neck, face, ankles, and wrists. A rape
examination kit was performed which revealed the presence of
Appellant's semen and DNA. Appellant was arrested and the
Commonwealth filed a criminal information against Appellant
charging him with the aforementioned offenses.
to and during trial, the trial court ruled on several
evidentiary matters that are the subject of this appeal. On
November 7, 2014, the Commonwealth filed a motion in
limine to exclude the report and testimony of
Appellant's proffered expert, Cyril H. Wecht, M.D., who
opined about the cause and manner of A.A.'s
injuries. The Commonwealth's motion claimed that
Appellant did not establish that Dr. Wecht qualified as an
expert. Moreover, the Commonwealth maintained that Dr.
Wecht's report was inadmissible because it offered an
opinion on A.A.'s credibility. See
Commonwealth's Motion in Limine to Exclude
Defendant's Report and Testimony, 11/7/2014, at ¶ 8;
id. at Exhibit 1. The trial court held a hearing on
the admissibility of Dr. Wecht's report on December 1,
2014. By order entered on December 2, 2014, the trial court
granted the Commonwealth's request to preclude Dr.
Wecht's report and testimony, concluding "the
proposed expert testimony is not necessary to explain injury
or lack of injury and that the proposed testimony would
invade the province of the jury regarding [A.A.'s]
credibility." Order, 12/2/2014, (unpaginated) at 1.
December 18, 2014, the Commonwealth filed a notice of intent
to permit the use of prior bad acts evidence pursuant to
Pa.R.E. 404(b). The Commonwealth sought to use three police
reports related to the March 13, 2012, September 1, 2012, and
September 21, 2012 incidents, as detailed above. On December
19, 2014, the Commonwealth filed an amended notice of intent
to permit the use of additional prior bad acts evidence.
Therein, the Commonwealth sought to use two police reports
related to the July 16, 2012 and July 27, 2012 incidents, as
set forth previously. The Commonwealth also filed a motion
in limine to support the admission of evidence
relating to the episodes of domestic abuse as prior bad acts
under Rule 404(b). Following argument, the trial court
entered an order on December 24, 2014, granting the
Commonwealth's request to use the prior bad acts
evidence. On January 2, 2015, the Commonwealth filed a second
amended notice of intent to use prior bad acts. In that
filing, the Commonwealth sought to introduce the police
report from the December 2010 incident wherein police
responded to a call that Appellant chased A.A. after kicking
open her father's front door. The Commonwealth also
sought to use the October 2012 PFA filed by A.A. against
Appellant. The trial court never entered a new order, or
amended its December 24, 2014 order, to include the prior bad
acts presented in the Commonwealth's second amended Rule
trial commenced on January 12, 2015. After A.A. testified,
Appellant sought leave to recall her and ask about three
statements posted to her Facebook account in the weeks
following the incident at issue. The trial court denied
Appellant relief. On the fourth day of trial, the
Commonwealth sought to use two additional unrelated PFAs
(filed against Appellant by women other than A.A.) which the
prosecution claimed it had just discovered. The trial court
ruled that the Commonwealth could only use these PFAs on
cross-examination if Appellant testified. Appellant, however,
did not testify. At the conclusion of trial, the jury
convicted Appellant of all charges. On April 21, 2015, the
trial court sentenced Appellant to an aggregate sentence of
18 to 36 years of imprisonment. This timely appeal
appeal, Appellant presents the following issues for our review:
1. Did the trial judge commit an abuse of discretion by
denying  Appellant his right to rebut the
Commonwealth's 404(b)/prior bad act evidence?
2. Did the trial judge commit an abuse of discretion by
prohibiting Appellant from re-calling [A.A.] upon the
discovery of new evidence, mid-trial, which demonstrated
clear motive to lie and which squarely supported 
3. Did the trial judge commit an abuse of discretion by
permitting a Commonwealth lay witness to testify to expert
opinions  in clear violation of Pennsylvania Rule of
4. Did the trial judge commit an abuse of discretion by
permitting the Commonwealth's use of two [PFAs] involving
other individuals which were produced to the defense for the
first time on the 4th day of a 5 day trial - which
prevented  Appellant from testifying in his own defense?
5. Did the cumulative effect of all the errors on evidentiary
rulings deprive Appellant of a fair trial?
Appellant's Brief at 6-7.
Appellant's issues challenge evidentiary rulings by the
trial court. Thus, our standard of review is as follows:
The admissibility of evidence is a matter for the discretion
of the trial court and a ruling thereon will be reversed on
appeal only upon a showing that the trial court committed an
abuse of discretion. An abuse of discretion may not be found
because an appellate court might have reached a different
conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or
ill-will, or such lack of support so as to be clearly
In the event of an erroneous admission of evidence, a verdict
can still be sustained if the error was harmless. An error is
harmless if it could not have contributed to the verdict, or
stated conversely, an error cannot be harmless if there is a
reasonable possibility the error might have contributed to
the conviction. [Our Supreme Court has] found harmless error
(1) the error did not prejudice the defendant or the
prejudice was de minimis;
(2) the erroneously admitted evidence was merely cumulative
of other untainted evidence which was substantially similar
to the erroneously admitted evidence; or
(3) the properly admitted and uncontradicted evidence of
guilt was so overwhelming and the prejudicial effect of the
error was so insignificant by comparison that the error could
not have contributed to the verdict.
The Commonwealth has the burden of proving harmless error
beyond a reasonable doubt.
Commonwealth v. Poplawski, 130 A.3d 697, 716 (Pa.
2015) (internal citations and quotations omitted).
first issue presented, Appellant claims that the trial court
wrongly prohibited him from refuting or rebutting the
Commonwealth's presentation of Rule 404(b) prior bad acts
evidence. Appellant's Brief at 19-20. More specifically,
Appellant claims that the trial court erroneously barred him
from calling witnesses to rebut A.A.'s account of the
December 2010 incident wherein police responded to a call
that Appellant chased A.A. after breaking down her
father's front door. Id. Appellant also argues
that the trial court erroneously denied relief when Appellant
"offered to call three neighbors who lived in the small
apartment complex to testify that they saw [and] heard
nothing" to refute A.A.'s claim "that Appellant
administered prior beatings to [A.A.] in their apartment and
that she would scream for help." Id. at 11.
Appellant claims that the trial court allowed the
Commonwealth to present Rule 404(b) evidence of past
incidents of domestic violence between A.A. and Appellant,
ruling that the testimony was probative of the crimes
charged. In contrast, the trial court prohibited
Appellant's attempts to rebut the accuracy, extent or
severity of the episodes, concluding that such rebuttal
testimony was collateral. Id. at 9-10. Appellant
argues that the same standard should apply to both parties -
if episodic prior bad acts evidence is relevant, then
evidence relating to the same episodes that rebuts an
opponent's proof is also relevant; if the prior bad acts
evidence is collateral, then rebuttal evidence would likewise
be collateral. Id. at 20. Appellant thus claims that
the trial court abused its discretion by precluding rebuttal
witnesses who were prepared to testify that A.A. fabricated
her assertions of past abuse by Appellant. Id. at
Rule of Evidence 404(b), pertaining to prior bad acts
evidence, provides, in pertinent part:
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.
(3) Notice in a Criminal Case. In a criminal case
the prosecutor must provide reasonable notice in advance of
trial, or during trial if the court excuses pretrial notice
on good cause shown, of the general nature of any such
evidence the prosecutor intends to introduce at trial.
Court recently determined:
Evidence of a defendant's distinct crimes are not
generally admissible against a defendant solely to
show his bad character or his propensity for committing
criminal acts, as proof of the commission of one offense is
not generally proof of the commission of another.
However, this general proscription against admission of a
defendant's distinct bad acts is subject to numerous
exceptions if the evidence is relevant for some legitimate
evidentiary reason and not merely to prejudice the defendant
by showing him to be a person of bad character.
that have been recognized as legitimate bases for admitting
evidence of a defendant's distinct crimes include, but
are not limited to:
(1) motive; (2) intent; (3) absence of mistake or accident;
(4) a common scheme, plan or design such that proof of one
crime naturally tends to prove the others; (5) to establish
the identity of the accused where there is such a logical
connection between the crimes that proof of one will
naturally tend to show that the accused is the person who
committed the other; (6) to impeach the credibility of a
defendant who testifies in his trial; (7) situations where
defendant's prior criminal history had been used by him
to threaten or intimidate the victim; (8) situations where
the distinct crimes were part of a chain or ...