Commonwealth v. Wayne

COMMONWEALTH OF PENNSYLVANIA v. SEAN WAYNE Appellant

J-S71021-19

No. 3651 EDA 2018

SUPERIOR COURT OF PENNSYLVANIA

FEBRUARY 6, 2020

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered November 9, 2018

In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0009331-2016

BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY MURRAY, J.:

Sean Wayne (Appellant) appeals from the judgment of sentence imposed after a jury convicted him of unlawful contact with a minor, indecent assault of a person less than 13 years of age, and corruption of minors.¹ We affirm in part and vacate in part.

The trial court summarized the relevant underlying facts as follows:

[The victim,] D.M., who was eleven at the time of trial,² testified that Appellant was her [maternal] aunt's boyfriend [at the time of the crimes]. When [D.M.] was nine years old, and in the third grade, Appellant touched her chest, buttocks and vagina. He did so in more than one location in the house [in which D.M.,Appellant, D.M.'s aunt, and several of D.M.'s siblings and cousins] resided[,] and on more than one occasion[.³]

The first incident occurred in the hallway just outside the bathroom in the home where [D.M.] and Appellant resided. On that occasion, Appellant stopped D.M. with his arm, the[n] touched her buttocks and vagina outside of her clothes. He stopped when she told him to. After the incident, D.M. told her oldest brother, Q.M., who was about 11 years old.

The second incident occurred in the kitchen, when D.M. went to get some food. Appellant touched D.M. on her chest, outside of her clothes. There were more than five other occasions when Appellant touched D.M. on her chest, outside [of] her clothes, in the kitchen. At some point[,] Appellant also touched D.M. under her clothes. Appellant would ask D.M.: "Does that feel good?"

In addition to touching her, Appellant exposed his genitals to D.M. and showed her pictures of naked girls on his phone. [Following the assaults,] D.M.'s behavior markedly changed and she started acting out in school. When her school counsellor, Jennifer Manness, asked her why she was misbehaving, D.M. disclosed what Appellant had done to her.

The Commonwealth also presented the transcript of Appellant's [prior] guilty pleas[, in December 2012,] to charges of indecent assault and corrupting the morals of a minor on two cases.⁴

Appellant presented testimony from his sister as to the nature of the household, name[ly] that there were numerous people always around, making it unlikely that Appellant was ever alone with D.M.

Trial Court Opinion, 2/25/19, at 2-3 (footnotes added, citations to record omitted).

In July 2016, the Commonwealth charged Appellant with the above-mentioned offenses, as well as two others that were subsequently nolle prossed. On March 20, 2017, the Commonwealth filed a Motion in Limine to Admit Other Acts/Crimes Evidence Pursuant to Pa.R.E. 404(b)⁵ (the "Rule 404(b) Motion"), seeking to introduce the prior crimes evidence at trial. The Commonwealth asserted in this motion, in relevant part, as follows:

[T]he following shared characteristics and striking similarities[, i.e., between the assaults that Appellant perpetrated on the P. sisters and D.M.,] establish a nexus and relate these alleged crimes as part of a common plan, scheme, and design:

1. All of the victims [that Appellant] sexually assaulted were black females;2. All of the victims were known to [Appellant] in his role as their maternal aunts' boyfriend;

3. The victims were [all] between ages the ages of 6-9;

4. All of the assaults occurred in the houses where [Appellant] resided with the victims;

5. [Appellant] committed similar acts against each victim - touching their vaginas under their clothing, exposing his penis to the victims, and making the victims touch his penis[.]

Rule 404(b) Motion, 3/20/17, at 8. The Commonwealth asserted that the prior crimes evidence was relevant and admissible under Rule 404(b), and that its probative value significantly outweighed its potential for unfair prejudice. The trial court conducted a hearing on the matter, at the close of which the court granted the motion.

The case proceeded to a jury trial. Relevant to this appeal, the trial court issued jury instructions concerning credibility assessments, conflicting testimony, and the limited purpose for which the jury could consider the prior crimes evidence. See N.T., 6/6/18, at 50-53, 55. The jury found Appellant guilty of all counts. Prior to sentencing, the trial court ordered the preparation of a pre-sentence investigation report (PSI), as well as a mental health evaluation report.

On November 9, 2018, the trial court sentenced Appellant to 2½ to 7 years in prison on the unlawful contact with a minor conviction, a consecutive term of 2½ to 7 years in prison on the corruption of minors conviction, and a concurrent term of 3½ to 14 years in prison on the indecent assault conviction,resulting in an aggregate prison term of 5 to 14 years. Relevant to this appeal, these sentences were above the recommended ranges of the Sentencing Guidelines, which called for a sentence range of 6 to 14 months in prison, plus or minus 6 months.

Appellant timely filed a post-sentence motion, asserting that the aggregate sentence was manifestly excessive and unjust, and that the jury's verdicts were against the weight of the evidence. The trial court denied the motion without a hearing. Appellant filed a timely notice of appeal, followed by a court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The trial court then issued a Rule 1925(a) opinion.

Appellant now presents the following issues for our review:

A. Whether the motion court erred by permitting the admission of other crimes evidence against Appellant pursuant to Pennsylvania Rule[] of Evidence 404(b)?

B. Did the trial court abuse its discretion by refusing to grant a new trial, as the verdict was against the weight of the evidence?

C. Whether the sentencing court abused its discretion by entering manifestly excessive and clearly unreasonable sentences, where the sentences violated the Sentencing Guidelines, where the trial court overly focused on the offenses and ignored Appellant's mitigating circumstances, [and] where the sentences greatly exceeded the Sentencing Guidelines?

Brief for Appellant at 8 (capitalization and answers to questions omitted).

In his first issue, Appellant argues that the trial court erred in granting the Commonwealth's Rule 404(b) Motion and ruling that the prior crimes evidence was admissible where:

(1) the respective sexual assaults were insufficiently factually similar to show a common plan or scheme by Appellant, and;

(2) the prejudicial impact of the prior crimes evidence greatly outweighed its limited probative value, particularly where this evidence was

(i) introduced to show Appellant's propensity to sexually assault minor girls;

(ii) superfluous in light of the Commonwealth's numerous witnesses who testified to the alleged sexual assaults of D.M.

See Brief for Appellant at 18-22. We disagree.

Our standard of review is as follows:

The admission of evidence is committed to the sound discretion of the trial court, and a trial court's ruling regarding the admission of evidence will not be disturbed on appeal unless that ruling reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support to be clearly erroneous.

Commonwealth v. Cosby, 2019 PA Super 354, at *47 (Pa. Super. 2019) (citation omitted).

Under Rule 404(b), evidence of prior bad acts can be admitted to show a common plan or scheme where the probative value of such evidence outweighs its potential for unfair prejudice. Pa.R.E. 404(b)(2). "'Unfair prejudice' means a tendency to suggest a decision on an improper basis or to divert the jury's attention away from its duty of weighing the evidence impartially." Commonwealth v. Dillon, 925 A.2d 131, 141 (Pa. 2007) (quoting Pa.R.E. 403, Comment). "Additionally, when weighing the potentialfor prejudice, a trial court may consider how a cautionary jury instruction might ameliorate the prejudicial effect of the proffered evidence." Id.

To determine whether the common plan or scheme exception of Rule 404(b) applies, the trial court must "examine 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." Cosby, 2019 PA Super 354, at *49 (citation omitted); see also Commonwealth v. Ivy, 146 A.3d 241, 253 (Pa. Super. 2016) (explaining that the circumstances of the crimes need not be identical, but there must be a "logical connection between them."). The court can look to factors such as, inter alia, age, race, relationship, and the specific acts that are committed. See Commonwealth v. Luktisch, 680 A.2d 877, 879 (Pa. Super. 1996).

Appellant attempts to distinguish his situation from this Court's decision in Commonwealth v. O'Brien, 836 A.2d 966 (Pa. Super. 2003). The O'Brien Court reversed a trial court's ruling excluding evidence of the defendant's prior sexual assaults of two minor boys, where the defendant was accused of sexually assaulting a third minor boy. Id. at 970. This Court discerned a logical connection to demonstrate a common plan because the victims were within the same age range, each boy's parents were friends of the defendant, each boy had similar personal characteristics, each of the assaults occurred in the defendant's home, and the respective sexual actswere similar in nature. Id.; see also Commonwealth v. Aikens, 990 A.2d 1181, 1185 (Pa. Super. 2010) (where the defendant was convicted of sexually assaulting his minor, biological daughter, holding that the trial court properly admitted evidence that the defendant had previously sexually assaulted a different biological daughter as proof...