J-S34020-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JERRY ALLEN REED

Appellant No. 2023 MDA 2014

Appeal from the Judgment of Sentence September 5, 2014

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0000323-2014

CP-36-CR-0005013-2012

BEFORE: BOWES, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.: FILED SEPTEMBER 09, 2015

Jerry Allen Reed appeals the judgment of sentence entered September 

5, 2014, in the Lancaster County Court of Common Pleas, made final by the 

denial of post-sentence motions on October 1, 2014. Reed was charged with 

multiple offenses in two separate informations for the sexual assault of his 

minor daughter, A.G., which are as follows: (1) the charges at Docket No. 

323-2014, arose from sexual acts that occurred in 2007, when A.G. was 14 

years old; and (2) the charges at Docket No. 5013-2012, arose from sexual 

acts that occurred in 2010, when A.G. was 17 years old. After a jury found 

Reed guilty of all charges, the trial court imposed an aggregate sentence of 

21 to 50 years’ imprisonment. On appeal, Reed challenges the trial court’s 

ruling permitting the Commonwealth to introduce evidence of prior bad acts, 
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and the court’s denial of his motion to sever the cases for trial. Based on 

the following, we affirm.

The facts underlying this appeal are as follows. Reed is the uncle of 

K.G., the mother of A.G., who is the victim in the present case. K.G. claims 

that Reed raped her twice, the first time in 1980, when she was 16 years 

old, and the second time in 1992, when she was 28 years old. The first 

incident occurred at her parents’ home in Reading, Pennsylvania, when she 

was home alone. K.G. contends Reed entered the house without her 

knowledge or consent, and “engaged in sexual intercourse with [her] against 

her will.” Trial Court Opinion, 10/31/2014, at 15. Although she told her 

mother about the incident, no criminal investigation was conducted. The 

second incident occurred at Reed’s home in Lancaster, Pennsylvania. K.G. 

claims she met with Reed to discuss her father (Reed’s brother), but he 

“grabbed hold of her and forcibly engaged in sexual intercourse with her.” 

Id. at 15. Again, K.G. did not report the incident to police. However, as a 

result of the second rape, she became pregnant with A.G. A.G. is, therefore, 

both Reed’s daughter and great-niece.1

The charges herein arose from Reed’s sexual abuse of A.G. in July of 

2007 and November of 2010. The charges at Docket No. 323-2014, resulted 

from the following incident:

____________________________________________

1 Reed does not dispute he is the father of A.G. N.T., 4/29/2014, at 345.
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[O]n July 1, 2007, at 10:30 p.m., [Reed] told A.G., then 14 

years old, to go to his garage located to the rear of the home, 

and she complied.4 Once inside the garage, [Reed] exposed his 

penis, told her to grasp it and she did. [Reed] then told A.G. to 

perform oral sex on him but she refused. A.G.’s two brothers 

and a friend observed what was going on in the garage through 

a peephole and banged on the door until [Reed] allowed A.G. to 

exit the garage. A.G. allegedly did not know [Reed] was her 

father at that time, although [Reed] knew A.G. was his 

daughter. No criminal charges were filed against [Reed] at that 

time. 

__________

4

 The evidence suggests that the victim, A.G., had some mental 

deficiencies. [The parties stipulated at trial that A.G. “has an IQ 

of 69 and functions at a range of mild mental retardation.” N.T., 

4/28/2014, at 73.].

Trial Court Opinion, 10/31/2014, at 2 (record citations omitted). Although 

A.G., accompanied by her mother, K.G., reported the incident to police, the 

investigation was initially closed after A.G. repeatedly failed to appear for a 

forensic interview. Id. at 11. 

The charges at Docket No. 5013-2012, resulted from an assault that 

occurred in November of 2010. The trial court summarized the 

circumstances regarding this incident as follows:

In November 2010, K.G. and her family were living in a motel in 

Lancaster. A.G. had gone to Florida to visit her sister. At the 

time, she had her 18-month-old daughter with her. When she 

returned from Florida in November of 2010, [Reed] picked her 

and her daughter up at the Philadelphia Airport and took them 

back to his apartment [in] Lancaster City. [A.G.] and her 

daughter spent the next two weeks at [Reed’s] home during 

which time he forcibly engaged in sexual intercourse with A.G. 

six or seven times, at least once while her young child was in the 

room. [Reed] held A.G. down, and she could not move or get 

up, although she screamed. Fear kept [A.G.] from telling 

anyone about what was going on. A.G. eventually called her 
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mother who took A.G. and her child to live with her [when she 

moved from the hotel into a house].

A.G. discovered she was pregnant in December 2010. 

After contacting the police, A.G. underwent a forensic 

examination at Lancaster County Children’s Alliance on 

December 14, 2010, where she revealed the sexual abuse 

perpetrated upon her by [Reed] between November 15, 2010, 

and November 29, 2010. However, A.G. was initially reluctant 

to press charges against [Reed]. With the birth of her second 

child, C.G., on August 2, 2011, and a confirmed paternity test 

showing [Reed], her father/great-uncle as the father of that 

child,13 A.G. decided she “had to get something done about it.” 

__________

13 Forensic scientist and paternal DNA analyst Season Elizabeth 

Seferyn testified that she tested the buccal swab samples from 

[Reed], the victim, A.G., the victim’s mother K.G., and the 

victim’s daughter, C.G. Ms. Seferyn concluded that [Reed] is the 

biological father of A.G. and C.G. ... The relative probability of 

paternity for each is 99.9999%.

Id. at 11-12 (record citations and some footnotes omitted).

On August 21, 2012, Reed was charged, at Docket No. 5013-2012, 

with rape, incest, sexual assault, unlawful contact with minor, and corruption 

of minors2for the incident that occurred in November of 2010. Thereafter, 

on December 18, 2013, Reed was charged, at Docket No. 323-2014, with 

attempted involuntary deviate sexual intercourse, unlawful contact with a 

minor, indecent assault, corruption of minors and indecent exposure3for the 

____________________________________________

2 18 Pa.C.S. §§ 3121(a)(1), 4302, 3124.1, 6318, and 6301, respectively.

3 18 Pa.C.S. §§ 901 and 3123, 6318, 3126(a)(8), 6301, and 3127, 

respectively.
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incident that occurred in July of 2007. On February 12, 2014, the 

Commonwealth filed notice of its intent to consolidate the cases for trial. 

Relevant to this appeal, in October 2013 and January 2014, the 

Commonwealth filed three separate notices of its intent to introduce 

evidence of Reed’s prior bad acts. Specifically, the Commonwealth intended 

to present evidence of (1) Reed’s alleged sexual assault of K.G. in 1980 and 

1992, (2) Reed’s alleged sexual assault of another niece, D.B., when she 

was eight to 14 years old,4and (3) Reed’s alleged sexual assault of the 

victim, A.G., when she was five years old.5 See Commonwealth’s 

Memorandum of Law in Support of its Rule 404(b) Motions, 4/7/2014, at 2-

4. In response, on February 20, 2014, Reed filed a motion in limine seeking 

to exclude this evidence. Additionally, Reed filed another pre-trial motion 

that same day seeking both suppression of statements he made to police, 

and severance of the cases for trial. Following a March 28, 2014, hearing on 

all of the pre-trial motions, the court denied Reed’s request to suppress 

evidence and sever the cases for trial. However, the trial court directed the 

____________________________________________

4 The assault of D.B. led to criminal charges against Reed. However, after a 

trial resulted in a hung jury, Reed was not re-tried. See Commonwealth’s 

Notice of Intent to Introduce Evidence of Prior Bad Acts, 1/14/2014, at ¶ 4.

5 The Commonwealth averred that when A.G. was five years old, she 

reported to her grandmother that Reed had “touched her ‘coochie’ (vaginal 

area).” Trial Court Opinion, 10/31/2014, at 17. Although the incident was 

reported to the Children and Youth Agency, no criminal charges were filed. 

Id. 
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parties to submit briefs on the issue of the admissibility of prior bad acts 

evidence. Thereafter, on April 17, 2014, the court entered an order denying 

in part and granting in part Reed’s motion in limine. Specifically, the court 

ruled that evidence of Reed’s prior sexual assault of K.G. and A.G. would be 

admissible in the Commonwealth’s case-in-chief. However, with regard to 

Reed’s prior assault of D.B., the court ruled that the evidence would not be 

admissible in the case-in-chief, but reserved judgment on whether the 

evidence might be admissible in rebuttal. See Order, 4/17/2014.

The cases proceeded to a jury trial in April of 2014. On April 29, 2014, 

the jury returned a verdict of guilty on all charges. The trial court, 

thereafter, directed that Reed undergo an assessment by the Sexual 

Offenders Assessment Board (“SOAB”) to determine whether he met the 

criteria for classification as a sexually violent predator (“SVP”) under the 

Sexual Offenders Registration and Notification Act (“SORNA”), 42 Pa.C.S. §§ 

9799.10-9799.14.

On September 5, 2014, the trial court held a combined SVP/sentencing 

hearing. After considering testimony by the SOAB evaluator, the court first 

determined that Reed met the criteria for classification as a sexually violent 

predator. Next, the court proceeded to sentence Reed to an aggregate term 

of 21 to 50 years’ imprisonment.6 Reed filed a timely post-sentence motion, 

____________________________________________

6 At Docket No. 5013-2012, the court imposed a sentence of eight and onehalf to 20 years’ imprisonment for the charge of rape and a consecutive term 

(Footnote Continued Next Page)
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in which he challenged both the weight and sufficiency of the evidence, as 

well as the court’s denial of his pre-trial motions, and requested modification 

of his sentence. By order entered October 31, 2014, the court denied Reed’s 

post-sentence motion, and this timely appeal followed.7

Reed’s first issue on appeal challenges the trial court’s denial of his 

motion in limine to preclude evidence of his purported prior assault of K.G.8

(Footnote Continued) _______________________

of five to 10 years’ imprisonment for the charge of incest. Additionally, the 

court imposed concurrent sentences of eight and one-half to 20 years for 

unlawful contact with minors and one and one-half to five years for 

corruption of minors. The sexual assault charge merged for sentencing 

purposes. 

At Docket No. 323-2014, the court imposed concurrent sentences of 

seven and one-half to 20 years’ imprisonment for attempted IDSI, seven 

and one-half to 20 years’ imprisonment for unlawful contact with minors, 

one to two years for indecent assault, one and one-half to five years for 

corruption of minors, and one to five years for indecent exposure. The court 

further directed that the charges at each docket run consecutive to one 

another. 

7 On November 24, 2014, the trial court ordered Reed to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

Reed complied with the court’s directive and filed a concise statement on 

December 15, 2014. Thereafter, the court entered a Rule 1925(a) opinion 

relying on its October 31, 2014, opinion that denied Reed’s post-sentence 

motions.

8 Although Reed also challenges the court’s ruling permitting evidence 

regarding the alleged sexual assault on A.G. when she was five years old, as 

the Commonwealth notes in its brief, no evidence or testimony regarding 

that incident was presented at trial. Accordingly, Reed cannot demonstrate 

that he was harmed by the court’s pretrial ruling, and we need not address 

this claim on appeal.

 
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Our review of an evidentiary claim is well-established:

Admission of evidence rests within the discretion of the trial 

court, and we will not reverse absent an abuse of discretion. 

“Discretion is abused when the course pursued represents not 

merely an error of judgment, but where the judgment is 

manifestly unreasonable or where the law is not applied or 

where the record shows that the action is a result of partiality, 

prejudice, bias or ill will.” 

Commonwealth v. Kinard, 95 A.3d 279, 284 (Pa. Super. 2014) (en banc) 

(internal citations omitted).

Pennsylvania Rule of Evidence 404(b) prohibits evidence of a 

defendant’s prior bad acts “to prove a person’s character” or demonstrate 

“that on a particular occasion the person acted in accordance with the 

character.” Pa.R.E. 404(b)(1). Nevertheless, the Rule further provides that 

prior bad acts 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)(2). 

Where, as here, the prior bad acts evidence is proffered under the 

common plan or scheme exception, we must bear in mind the following:

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 that the evidence reveals criminal 

conduct which is distinctive and so nearly identical as to 

become the signature of the same perpetrator. Relevant 
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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., 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, 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 
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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).

Com. v. Tyson, ___ A.3d ___, ___, 2015 PA Super 138, *3-4 (Pa. Super. 

2015).

Here, Reed contends the trial court erred when it determined the 

evidence was admissible pursuant to the common plan, scheme or design 

exception. Specifically, he asserts the prior bad acts do not share a “unique 

similarity” in facts with the present charges, and, indeed, “[t]he only 

constant was the nature of the familial relationship [Reed] shared with A.G. 

and K.G.” Reed’s Brief at 12. Moreover, Reed states the “locations, dates, 

and circumstances of the acts as to K.G. and A.G. were markedly different.” 

Id. at 13. For example, K.G. testified Reed first assaulted her at her 

parents’ home when she was 16 years old, and, later, at his home when she 

was 28 years old. Conversely, the first alleged sexual assault of A.G., an 

attempted involuntary deviate sexual intercourse, occurred in Reed’s garage, 

when A.G. was 14 years old. Moreover, the second incident, a purported 

rape, occurred at Reed’s home when A.G., then 17 years old, was staying 

with him. Accordingly, Reed contends the acts were not sufficiently similar 

to demonstrate a common plan, scheme or design. Additionally, Reed 

argues any probative value assigned to the testimony regarding his prior bad 

acts was far outweighed by the danger of unfair prejudice. Id. at 16. 

Specifically, he contends the remoteness in time of the prior incidents is 

“substantial.” Id. at 17.
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The trial court concluded, however, that evidence of Reed’s prior 

sexual assault of K.G., the victim’s mother, was admissible to demonstrate a 

common plan, scheme or design. In particular, the court emphasized the 

following:

[T]here were strong similarities between [Reed’s] conduct on 

A.G. and his prior conduct on A.G.’s mother, K.G. K.G., like 

A.G,. was a minor female at the time of the first assault. K.G., 

like A.G., was a niece of [Reed’s]. [Reed] used the family 

relationship and opportunity to be alone with K.G. to force her to 

engage in incestuous sexual intercourse with him, just as he 

used the same factors to isolate and assault A.G. Both K.G. and 

A.G. indicate[d] they were held down by [Reed] during the 

assaults. K.G., like A.G., got pregnant as a result of the 

assaults.

Trial Court Opinion, 10/31/2014, at 20. 

We find this Court’s decision in Commonwealth v. Aikens, 990 A.2d 

1181 (Pa. Super. 2010), appeal denied, 4 A.3d 157 (Pa. 2010), instructive. 

In that case, the appellant was convicted of, inter alia, indecent assault for 

the sexual abuse of his 14-year-old daughter, T.S. Id. at 1182. At trial, the 

Commonwealth presented the testimony of V.B., the appellant’s then 32-

year old daughter by another woman, who claimed appellant had sexually 

abused her when she was 15 years old. On appeal, the appellant challenged 

the court’s admission of this evidence under the common plan, scheme or 

design exception. In concluding the ruling was not an abuse of discretion, a 

panel of this Court stated:

In both cases, the victims were of like ages: T.S. was fourteen 

years old, and V.B. was fifteen years old. Both victims were 

Appellant’s biological daughters. Appellant initiated the contact 
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during an overnight visit in his apartment. He began the sexual 

abuse by showing the girls pornographic movies. The assaults 

occurred in bed at night. While Appellant raped V.B. and 

indecently assaulted T.S., T.S. stopped Appellant from disrobing 

her and committing the more serious sexual assault. In 

addition, Appellant mimicked the grinding movements of sexual 

intercourse on T.S. in order to sexually gratify himself. These 

matching characteristics elevate the incidents into a unique 

pattern that distinguishes them from a typical or routine childabuse factual pattern. Hence, we reject Appellant's position that 

we are pigeonholing sexual abuse cases to such an extent that 

any prior instance of child abuse would be admissible in a 

subsequent child abuse prosecution. See also Commonwealth 

v. Hughes, 521 Pa. 423, 555 A.2d 1264 (1989) (evidence about 

prior rape correctly allowed at rape-murder trial since crimes 

were committed in similar geographic location, at similar time, 

characteristics of victim matched, and defendant used same 

method of attack). As was the case in Hughes, the similarities 

at issue herein were “not confined to insignificant details that 

would likely be common elements regardless of who committed 

the crimes.” Id. at 1283. 

Concededly, the time lapse at issue in this case was lengthy. 

V.B.’s abuse started in fall 1986 and ended in approximately 

1990. N.T. Motion, 7/29/02, at 4. The rape introduced at this 

trial occurred fifteen years prior to the assault at issue. Id. at 3. 

Thus, there was a ten-to-eleven-year period between the end of 

that abuse and the present abuse. However, as we noted 

[supra,] remoteness is merely one factor to be considered in 

determining admissibility; the importance of the gap in time is 

inversely proportional to the similarity between the crimes. In 

this case, the parallels are striking. The abuse was perpetrated 

in an identical manner on victims with identical characteristics 

and in an identical setting. The only exception was that the 

victim herein was able to stop the abuse from escalating. 

Hence, the fact that V.B.’s abuse occurred remotely to that in 

the present case was not determinative of the issue. In addition, 

since the crimes were comparable, the probative value of the 

evidence of V.B.’s abuse outweighed its prejudicial impact.

Id. at 1185-1186.
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We find the same true here. While the particular circumstances 

surrounding the prior incidences were not identical, with respect to both K.G. 

and A.G., Reed preyed upon his teenaged nieces, who were both about the 

same age at the time he first vaginally raped them by holding them down.9 

See N.T., 4/28/2014, at 82, 152. Moreover, both rapes involved physical 

force, as opposed to only intimidation. See id. at 87, 155. Although K.G. 

was 28 years old the second time Reed raped her, he was able to get her 

alone only after taking advantage of their familial relationship. Indeed, K.G. 

testified she only agreed to meet with Reed at his house, upon his 

suggestion, to discuss her strained relationship with her own father. Id. at 

153. Further, as a result of that assault, K.G. became pregnant with the 

victim herein, A.G. Accordingly, we find no abuse of discretion on the part 

of the trial court in admitting evidence of Reed’s sexual assault of the 

victim’s mother under the common plan, scheme and design exception. 

Nonetheless, prior bad acts evidence is admissible in a criminal case 

“only if the probative value of the evidence outweighs its potential for unfair 

prejudice.” Pa.R.E. 404(b)(2). With respect to this balancing test, the trial 

court opined:

____________________________________________

9 We note, too, that both K.G. and A.G. were teenaged mothers at the time 

they were raped. The first time Reed forced K.G. to have sex, she was alone 

at her parents’ home with her infant son. See N.T., 4/28/2014, at 152. 

Similarly, the first time, Reed forced A.G. to have sex with him, she was 

staying at his house with her one-year-old daughter. Id. at 84-87.
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In the instant case, I found that the probative value of the 

evidence outweighed its prejudicial effect. Although evidence of 

the prior sexual assaults on the victim, A.G., and her mother, 

K.G., may have been prejudicial, it was not unduly so. As the 

comment to Rule 403 instructs, “‘[u]nfair 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.” Pa.R.E. 403 cmt. The sexual assault evidence, 

introduced for legitimate purposes, was not so prejudicial that it 

likely diverted the jury’s attention away from its duty of 

weighing the evidence impartially. 

Moreover, “[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.” 

Commonwealth v. Gordon, 543 Pa. 513, 521, 673 A.2d 866, 

870 (1996). Here, the Commonwealth was required to prove 

the elements of rape, indecent assault, IDSI, sexual assault, 

unlawful contact and indecent exposure, which include forcible 

compulsion and non-consensual touching. [Reed] denied that 

the contact occurred, and since the uncorroborated testimony of 

the victim in this case might have reasonably led a jury to 

determine that there was a reasonable doubt as to whether 

[Reed] committed the crimes charged, it was fair to conclude 

that the other crimes evidence was necessary for the prosecution 

of the case. Without doubt, the other crimes evidence was 

prejudicial to [Reed]. That is what it is designed to be. On the 

facts of this case, however, it was not unduly prejudicial, as it 

was required for the Commonwealth’s case. 

Trial Court Opinion, 10/31/2014, at 24-25. 

We agree. While Reed emphasizes the “remoteness of time” between 

the sexual assault against A.G., and his prior assault of her mother, we find 

that the probative value of the prior bad acts evidence outweighed any 

potential prejudice. Indeed, the remoteness of time between the acts was 

solely the result of Reed’s decision to sexually abuse and impregnate one 

niece, and subsequently, sexually abuse and impregnate the daughter born 

as a result of the first assault. Although the evidence demonstrated the 
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baby born to A.G. in 2011 was Reed’s biological child, the only evidence that 

the pregnancy was the result of a rape was A.G.’s own testimony. 

Accordingly, the testimony of her mother, that A.G., too, was the product of 

a rape by the same defendant, was of significant probative value. 

Therefore, Reed’s challenge to the trial court’s admission of testimony 

regarding his prior bad acts fails.

In his second issue, Reed argues the trial court erred in denying his 

motion to sever the cases for trial. Our review of such a claim is wellsettled: 

In reviewing a trial court decision to consolidate or to sever 

offenses for trial, our standard is abuse of discretion. Offenses 

charged in separate informations may be tried together if they 

are “based on the same act or transaction” or if “the evidence of 

each of the offenses would be admissible in a separate trial for 

the other and is capable of separation by the jury so that there is 

no danger of confusion.” Pa.R.Crim.Pro. 582(A)(1). The court 

has discretion to order separate trials if “it appears that any 

party may be prejudiced” by consolidating the charges. 

Pa.R.Crim.Pro. 583. 

Our Supreme Court has established a three part test, 

incorporating these two rules, for deciding the issue of joinder 

versus severance of offenses from different informations. The 

court must determine 

whether the evidence of each of the offenses would be 

admissible in a separate trial for the other; whether such 

evidence is capable of separation by the jury so as to avoid 

danger of confusion; and, if the answers to these inquiries 

are in the affirmative, whether the defendant will be 

unduly prejudiced by the consolidation of offenses. 

Commonwealth v. Thomas, 879 A.2d 246, 260 (Pa. Super. 2005) (some 

internal citations omitted), appeal denied, 989 A.2d 917 (Pa. 2010).
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Here, Reed argues the court improperly denied his motion to sever the 

cases for trial because the “two dockets do not involve a common 

scheme/plan/design and the evidence of each would not have been 

admissible in a separate trial for the other.” Reed’s Brief at 21. He asserts 

the two alleged assaults on A.G., four years apart, “occurred at different 

time and in different locations.” Id. at 19. He further contends that 

because the only similarity in the crimes was the victim, the evidence of 

each incident would not have been admissible in a trial for the other.

The trial court, however, concluded the cases should be consolidated 

for trial based upon the above-stated three-part test. First, the court found 

“the evidence from the two Informations showed a common scheme, plan or 

design, as well as [Reed’s] identity,” and, therefore, would be admissible in 

a separate trial for the other. Trial Court Opinion, 10/31/2014, 27. Next, 

the court determined “the evidence was capable of separation by the jury” 

because “[t]he offenses occurred at different times and in different places.” 

Id. Lastly, the trial court found Reed would not be “unduly prejudiced by 

the consolidation of the offenses” because the prejudice to him would not be 

any greater than the general prejudice he would suffer by being linked to a 

crime. Id. at 27-28.

Again, we find no error or abuse of discretion on the part of the trial 

court. First, we agree that the evidence of each crime would be admissible 

in a trial for the other. The 2007 incident, in which Reed exposed himself to 

then 14-year-old A.G. and attempted to engage her in oral sex, would 
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clearly be admissible in a trial for the 2010 rape to demonstrate that Reed’s 

“sexual misconduct was of a continuing and escalating nature.” 

Commonwealth v. Dunkle, 602 A.2d 830, 839 (Pa. 1992) (“McCormick on 

Evidence states that prior sexual misconduct with the victim is admissible 

‘[t]o show a passion or propensity for illicit sexual relations with the 

particular person concerned in the crime on trial.’”) (citation omitted). 

Indeed, the jury could infer the 2007 incident did not result in a rape simply 

because Reed was interrupted by A.G.’s brother. Moreover, evidence of the 

later incident would be admissible in a trial for the former to demonstrate 

that when A.G. became impregnated with Reed’s child, it was not the result 

of a consensual act.

Moreover, we agree the crimes are easily separable because they 

occurred three years apart in different locations, and involved different 

sexual acts. Lastly, we agree Reed has failed to demonstrate he was 

prejudiced by the consolidation of the cases for trial. Indeed, with regard to 

the 2007 incident, there were several eyewitnesses to the crime. Further, 

with regard to the 2010 incident, the Commonwealth presented evidence 

that Reed was the biological father of the child born to his 17-year old 

daughter/great-niece nine months later. As our Supreme Court explained in 

Commonwealth v. Lark, 543 A.2d 491 (Pa. 1988):

The “prejudice” of which Rule [583] speaks is not simply 

prejudice in the sense that appellant will be linked to the crimes 

for which he is being prosecuted, for that sort of prejudice is 

ostensibly the purpose of all Commonwealth evidence. The 

prejudice of which Rule [583] speaks is, rather, that which would 
J-S34020-15

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occur if the evidence tended to convict appellant only by showing 

his propensity to commit crimes, or because the jury was 

incapable of separating the evidence or could not avoid 

cumulating the evidence. Such prejudice was not present in the 

instant case.

Id. at 499. Accordingly, we find no abuse of discretion on the part of the 

trial court in denying Reed’s motion to sever the cases for trial.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/9/2015