Commonwealth v. Gilliam

249 A.3d 257

COMMONWEALTH of Pennsylvania

v.Kevin Eugene GILLIAM, Appellant

Commonwealth of Pennsylvania

v.Kevin Eugene Gilliam, Appellant

No. 2092 MDA 2019

No. 2093 MDA 2019

Superior Court of Pennsylvania.

Argued February 2, 2021

Filed March 12, 2021

Reargument Denied May 19, 2021

Shawn Michael Stottlemyer, Carlisle, for appellant.

Megan Ann McGoron, Bellefonte, for appellee.

BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.

OPINION BY MURRAY, J.:

In these consolidated appeals, Kevin Eugene Gilliam (Appellant) appeals from the judgment of sentence imposed after a jury convicted him of two counts of indecent assault without consent and one count of aggravated indecent assault without consent;¹ the trial court also convicted Appellant of three counts of summary harassment.² Upon careful review, we affirm.

Appellant, a licensed massage therapist, owned and operated a spa located in State College, Pennsylvania. In January 2017, two of Appellant's female clients, J.G. and K.J. (collectively, "the victims"), reported to police that Appellant had inappropriately touched their genitals and breasts during massages, without their consent.³

In March 2017, the Commonwealth charged Appellant with several counts of indecent assault, aggravated indecent assault and harassment. These offenses were charged in two separate informations, respectively docketed at 14-CR-355-2017 (pertaining to J.G.), and 14-CR-320-2017 (pertaining to K.J.) (collectively referred to as the "trial court dockets"). Upon motion of the Commonwealth, the trial court dockets were joined.

On September 12, 2018, the Commonwealth filed motions in limine , including a motion to admit evidence of Appellant's other bad acts, pursuant to Pennsylvania Rule of Evidence 404(b)⁴ (the " Rule 404(b) motion"). Specifically, the Commonwealth sought to introduce the following:

Prior Act # 1: Victim [S.S. ]

In 2013, [S.S.] went to [Appellant's] place of business on numerous occasions for massages. [S.S.] was a regular customer for two years, receiving massages from [Appellant] without any inappropriate touching and he would never massage her higher than about ¾ up her leg. However, on one occasion, [Appellant] touched her the entire way up her leg and touched her vagina. She never went back for another massage. [S.S.] came forward after [Appellant] was charged in the present cases.

Prior Act # 2: Victim [A.W. ]

In 2015, [A.W.] was a graduate student at Penn State University. She went to [Appellant's] place of business for pain management massages. As a regular customer, [A.W.] trusted [Appellant]. At an evening appointment, [A.W.] was alone at the spa with [Appellant]. During a massage, [Appellant] rubbed [A.W.’s] vagina. [A.W.] never went back but did receive a call from [Appellant] asking if she was okay. She came forward after [Appellant] was charged in the present cases.

Prior Act # 3: Victim [E.G. ]

In 2012, [E.G.] went to [Appellant's] place of business for pain management massages. She bought a package for massages after she had gone a few times and received massages without incident. [Appellant] would typically massage her ¾ of the way up her leg and stop. On the last occasion when [E.G.] went for a massage, [Appellant] was massaging up her legs and went the entire way up her leg and touched her vagina. He also massaged the middle of her back and touched her breasts on both sides. [E.G.] never went back to the spa.

Prior Act # 4: Victim [D.D. ]

In 2012, [D.D.] was working at [Appellant's] spa as an intern while she was a student. [Appellant] asked her to do massages on customers. As part of [D.D.’s] training to do massages on others, [Appellant] insisted on giving [D.D.] massages. During a massage, [Appellant] went too high up on [D.D.’s] leg and almost touched her vagina. While working on [D.D.’s] back during the massage, [Appellant] also touched the sides of both of [D.D.’s] breasts. [D.D.] came forward after [Appellant] was charged in the present cases.

All of the victims were females that went to [Appellant] for massages and [ ] after [Appellant] would gain their trust after a few sessions, he would inappropriately touch their vaginas and breasts while alone in the massage room. In the case of each victim, [Appellant] would use a "grooming" process to make the individual feel comfortable and gain their trust. After several massages without incident, [Appellant] would inappropriately touch the victim while alone in the massage room.

Motion in Limine , 9/12/18, at 6-7 (paragraph numbering and breaks omitted).

Appellant filed a response in opposition to the Rule 404(b) motion, asserting that the probative value of the proffered evidence was greatly outweighed by the potential prejudice to Appellant. The trial court conducted a hearing on the matter on September 19, 2018. One day later, the trial court entered an opinion and order granting the Rule 404(b) motion.

The matter proceeded to a jury trial, commencing on September 24, 2018. The Commonwealth presented the testimony of, inter alia , the victims and two of the women identified in the Rule 404(b) motion, S.S. and E.G. The Commonwealth also called Nick Peters (Peters), whom the trial court qualified as an expert in the field of massage therapy techniques and protocol.

During S.S.’s testimony, she improperly opined on the credibility of the victims’ accusations against Appellant. In response, Appellant's counsel moved for a mistrial at sidebar. The trial court declined to grant a mistrial; however, it issued a cautionary instruction to the jury, explaining the limited purpose for which it could consider S.S.’s testimony.

Trial resumed and Appellant testified that he never inappropriately touched the victims. Appellant asserted it would have been impossible for him to do so, as he always properly draped his clients with sheets that covered their intimate areas. At the close of trial, the jury found Appellant guilty of aggravated indecent assault without consent and indecent assault without consent at Docket 320, pertaining to K.J., and guilty of indecent assault without consent at Docket 355, pertaining to J.G. (the jury acquitted Appellant of the aggravated indecent assault of J.G.).

On November 28, 2018, the Commonwealth gave Appellant notice of its intent to seek a 25-year mandatory minimum sentence (Notice), under 42 Pa.C.S.A. § 9718.2 (pertaining to recidivist sexual offenders). Sentencing occurred on December 13, 2018; there, Appellant objected to the application of section 9718.2. The trial court rejected Appellant's argument and imposed an aggregate prison sentence of 25 to 50 years, pursuant to section 9718.2.

On December 26, 2018, Appellant filed a timely post-sentence motion claiming that the jury's verdict was against the weight of the evidence. By an opinion and order entered on March 26, 2019, the trial court denied the post-sentence motion. Appellant did not file a notice of appeal.

The trial court subsequently reinstated appellant's direct appeal rights, nunc pro tunc , in response to a petition filed by Appellant under the Post Conviction Relief Act. See 42 Pa.C.S.A. §§ 9541 - 9546. Appellant then timely filed notices of appeal,⁵ one at each docket before this Court, i.e. , 2092 MDA 2019 (No. 2092) and 2093 MDA 2019 (No. 2093).⁶ Both Appellant and the trial court have complied with Pa.R.A.P. 1925.⁷

In the appeal at No. 2093, Appellant presents 9 issues for our review:

I. Whether the trial court erred in finding sufficient evidence for conviction for 18 [Pa.C.S.A.] § 3126 §§ A1, indecent assault without consent of other, when the Commonwealth failed to prove that [Appellant] had indecent contact with the complainant?

II. Whether the trial court erred in finding sufficient evidence for conviction for 18 [Pa.C.S.A.] § 3126 §§ A1, indecent assault without consent of other, when the Commonwealth failed to prove that [Appellant] acted with the purpose of arousing sexual desire in the person or the complainant?

III. Whether the trial court abused its discretion in denying [Appellant's] post-sentence motion challenging the weight of the evidence and denying a request for a new trial on the charge of 18 [Pa.C.S.A.] § 3126 §§ A1, indecent assault without consent of other?

IV. Whether the trial court erred in allowing the Commonwealth to present the expert testimony of Nick Peters when the expert's scientific, technical, or other specialized knowledge would not help the trier of fact to understand the evidence or to determine a fact in issue pursuant to Pa.R.E. 702 ?

V. Whether the trial court erred in allowing S.S. to testify pursuant to Pa.R.E. 404(b)(2) when the testimony would not prove a common plan or scheme, absence of mistake, or lack of accident and the probative value of the evidence was outweighed by its potential for unfair prejudice?

VI. Whether the trial court erred in allowing E.G. to testify pursuant to Pa.R.E. 404(b)(2) when the testimony would not prove a common plan or scheme, absence of mistake, or lack of accident and the probative value of the evidence was outweighed by its potential for unfair prejudice?

VII. Whether the trial court erred in failing to grant [Appellant's] motion for a mistrial after testimony was elicited from S.S. that went to [Appellant's] propensity to commit a crime rather than the permissible uses under Pa.R.E. 404(b)(2) ?

VIII. Whether the trial court erred in sentencing [Appellant] to a mandatory term pursuant to 42 Pa[.C.S.A. §] 9718.2 without a hearing when, although conceding that the elements of the purported conviction were present, [Appellant] challenged whether or not his purported previous conviction in New York was in fact a conviction?

IX. Whether the trial court erred in sentencing [Appellant] to a mandatory term pursuant to 42 Pa[.C.S.A. §] 9718.2 when the issue of whether or not [Appellant] had a previous conviction mandating a minimum sentence was not presented to the finder of fact and proven beyond a reasonable doubt pursuant to Alleyne v. United States [, 570 U.S. 99,

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