J-S38032-18

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

Appellee

:

:

:

IN THE SUPERIOR COURT OF 

PENNSYLVANIA

:

v. :

:

SETH A. TRAVIS, :

:

Appellant : No. 1914 WDA 2017

Appeal from the Judgment of Sentence December 8, 2017

in the Court of Common Pleas of McKean County

Criminal Division, at No. CP-42-CR-0000219-2016

BEFORE: BOWES, NICHOLS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED: August 7, 2018

Seth A. Travis (Appellant) appeals from the judgment of sentence 

entered on December 8, 2017, following his jury convictions for rape, indecent 

assault, and simple assault. Upon review, we affirm.

We offer the following factual summary based upon the testimony at 

trial. On April 11, 2016, Appellant, who was 19 years old at the time, sent a 

Facebook friend request to T.V., who was 22 years old at the time. T.V. 

accepted Appellant’s friend request, and the two of them “started messaging 

back and forth,” which led to their exchanging cell phone numbers and 

subsequent texting. N.T., 6/26/2017, at 60. Appellant then met T.V. at her 

father’s house around 11:00 p.m. that night, and the two walked to 

Appellant’s house. Appellant had told T.V. that his mother would be at the 

house, but when she got there, Appellant’s mother was not home. After 
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arriving, Appellant wanted to change clothes, and T.V. testified that she “was 

upstairs playing on [her] phone sitting on [Appellant’s] bed.” Id. T.V. then 

testified to the following.

[Appellant] had then taken my phone and set it on the stand or 

somewhere next to his bed and then he had started kissing me 

and I was telling him “no” and trying to get him off me. He had 

grabbed [m]y hand and [] my hair and was fighting back with me 

holding me down so he could get my pants [] off...

***

Then when he got them off he began to have sexual contact[1]

with me and then when he was done I told him that I had to leave 

because I had to do laundry for work but he wanted me to stay. 

So I told him that my dad was coming to meet me and he then 

walked me downstairs so I could leave.

Id. at 60-61.

T.V. testified that she left Appellant’s house and called her friend, 

Georgia Moore, to pick her up. T.V. and Moore went to Moore’s house where 

T.V. explained what happened. T.V. and Appellant also exchanged text 

messages. T.V. texted to Appellant, “I told you no so many times and you 

didn’t like that answer.” Id. at 79 (emphasis added). Appellant responded, 

“Huh, and I didn’t hear you say no.” Id. at 80. T.V. texted, “I said it a million 

times when you were kissing on me and everything I told you I don’t just ... 

sleep with people.” Id. Appellant responded, “I’m deaf in one ear and my 

other can hear some I’m sorry.” Id.

 

1 T.V. later testified that this meant that “[h]e put his penis in her vagina.” 

Id. at 73.
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Moore called T.V.’s stepmother who called police. Sergeant Raymond 

Douglas went to Moore’s house, and then transported T.V. and Moore to the 

hospital. After being treated at the hospital, T.V. provided a statement to 

Sergeant Douglas. Sergeant Douglas interviewed Appellant the following 

morning, where he told police that he and T.V. had consensual sex the night 

before. Appellant also told police that “[h]e had trouble hearing sometimes.” 

Id. at 143. Appellant was then arrested and charged in connection with this 

incident.

Prior to trial, counsel for Appellant filed a motion in limine to exclude 

evidence of Appellant’s prior juvenile adjudication for sexual assault. That 

adjudication occurred in 2013, when Appellant was 16 years old, and involved 

17-year-old victim, B.B. The trial court heard argument on this motion, and 

on June 19, 2017, the trial court denied Appellant’s motion. 

A jury trial was held on June 26 and 27, 2017. In addition to the 

testimony by T.V., the jury also heard testimony from Moore and the nurses 

who cared for T.V. at the hospital. Further, B.B. and Officer Steven Green, 

who interviewed Appellant about the incident with B.B., testified as permitted 

after Appellant’s motion in limine had been denied. 

B.B. told the jury that Appellant invited her over to his house for dinner. 

B.B. testified that her mother called Appellant’s mother to make sure this was 

okay, and according to B.B., Appellant’s mother said yes. Appellant and B.B. 

walked to Appellant’s house, where his mother and grandmother were home. 
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The two went to Appellant’s room, where Appellant proceeded to have sex 

with her. B.B. testified that she was screaming and trying to push him off. 

According to Appellant, if B.B. said “no,” “he did not hear her.” N.T., 

6/27/2017, at 107.

The jury found Appellant guilty of all charges in connection with the rape 

of T.V. On December 8, 2017, Appellant was sentenced to an aggregate term 

of 7 to 14 years of incarceration. Appellant timely filed a notice of appeal, and 

both Appellant and the trial court complied with Pa.R.A.P. 1925.

On appeal, Appellant argues that “the trial court erred by permitting the 

Commonwealth to introduce evidence at trial of Appellant’s prior juvenile 

adjudication for sexual assault.” Appellant’s Brief at 4. We consider this issue 

mindful of the following. 

The admission or exclusion of evidence is a matter vested in the 

trial court’s sound discretion, and we may reverse the court’s 

ruling only upon a showing of a clear abuse of that discretion. An 

abuse of discretion is not merely an error of judgment, but is 

rather the overriding or misapplication of the law or an exercise 

of judgment that is manifestly unreasonable, or the result of bias, 

prejudice, ill-will or partiality, as shown by the evidence of record. 

Our scope of review is limited to an examination of the trial court’s 

stated reason for its decision. 

Commonwealth v. Wattley, 880 A.2d 682, 685 (Pa. Super. 2005).

Relevance is the threshold for admissibility of 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 that is not relevant is not admissible.” Pa.R.E. 402. In 

addition, “[t]he 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 
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jury, undue delay, wasting time, or needlessly presenting 

cumulative evidence.” Pa.R.E. 403; see Commonwealth v. 

Kouma, 53 A.3d 760, 770 (Pa. Super. 2012) (stating that even 

when evidence meets the relevance requirements, “such evidence 

may still be excluded where its probative value is outweighed by 

the danger of unfair prejudice[]”).

However, [e]vidence will not be prohibited merely 

because it is harmful to the defendant. [E]xclusion is 

limited to evidence so prejudicial that it would inflame 

the jury to make a decision based on something other 

than the legal propositions relevant to the case.... This 

Court has stated that it is not required to sanitize the 

trial to eliminate all unpleasant facts from the jury’s 

consideration where those facts are relevant to the 

issues at hand[.]

Kouma, 53 A.3d at 770 (citation omitted); see Pa.R.E. 403, cmt. 

(defining “unfair prejudice” as “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. McCarthy, 180 A.3d 368, 377 (Pa. Super. 2018) (some 

citations omitted). 

Our rules provide further direction when the evidence relates specifically 

to other crimes, wrongs, or acts, such as a prior adjudication.

(b) Other crimes, wrongs, or acts.

(1) Evidence of other crimes, wrongs, or acts is not 

admissible to prove the character of a person in order to 

show action in conformity therewith.

(2) Evidence of other crimes, wrongs, or acts may be 

admitted for other purposes, such as proof of motive, 

opportunity, intent, preparation, plan, knowledge, identity 

or absence of mistake or accident.

(3) Evidence of other crimes, wrongs, or acts proffered 

under subsection (b)(2) of this rule may be admitted in a 
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criminal case only upon a showing that the probative value 

of the evidence outweighs its potential for prejudice.

Pa.R.E. 404 (b)(1)-(3). Further, 

while evidence of prior bad acts may be relevant and admissible, 

there is the potential for misunderstanding on the part of the jury 

when this type of evidence is admitted. This evidence must, 

therefore, be accompanied by a cautionary instruction which fully 

and carefully explains to the jury the limited purpose for which 

that evidence has been admitted.

Commonwealth v. Weiss, 81 A.3d 767, 798 (Pa. 2013) (internal citations 

and quotation marks omitted). See also Commonwealth v. Cousar, 154 

A.3d 287, 304 (Pa. 2017) (stating that “where evidence of a defendant’s prior 

bad acts is admitted, the defendant is entitled to a jury instruction that the 

evidence is admissible only for a limited purpose”). 

Here, the trial court concluded that this case was analogous to 

Commonwealth v. Tyson, 119 A.3d 353 (Pa. Super. 2015) (en banc),2 “as 

there is no issue of identity [of the perpetrator,] but evidence of the prior 

crime is permitted on the issue of ‘mistake or accident’ as to consent and also 

on the issue of ‘common plan or scheme.’” Trial Court Order, 6/20/2017.

Despite the fact that the trial court permitted admission of this evidence 

pursuant to two different Pa.R.E. 404(b)(2) exceptions, the trial court 

provided a cautionary instruction as to the absence of mistake exception only. 

See N.T., 6/26/2017, at 104 (instructing the jury prior to Officer Green’s 

testimony that this evidence may be considered only for the limited purpose 

 

2 This case will be discussed in detail infra.
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of whether Appellant mistakenly believed that T.V. consented); N.T., 

6/27/2017, at 39-40 (instructing the jury after the close of evidence that this 

evidence was to be used only to show that Appellant “did not mistakenly 

believe that [T.V.] gave consent” and that “must not be considered by [the 

jury] in any way than for the purpose [the trial court] just stated”) (emphasis 

in original). 

Based on the foregoing, it is apparent the evidence was admitted only 

pursuant to the absence of mistake exception. Thus, despite the fact that 

Appellant spends a significant portion of his brief arguing that the trial court 

erred in admitting this evidence pursuant to the common plan or scheme 

exception, see Appellant’s Brief at 17-29, we will not consider that argument 

on appeal because that was not a basis for the admission of this evidence.

We now turn to the basis upon which this evidence was admitted, the 

absence of mistake exception. With respect to this exception, this Court has 

held that 

evidence may be admitted under the “absence of mistake or 

accident” exception where “the manner and circumstances” of two 

crimes are “remarkably similar.” Commonwealth v. 

Boczkowski, [] 846 A.2d 75, 86 ([Pa.] 2004). In Boczkowski, 

our Supreme Court held that evidence related to the death of the 

defendant’s first wife was admissible in the trial against him for 

the murder of his second wife, where both women died of 

drowning under very similar circumstances. Id. Our Supreme 

Court thus ruled that the evidence was relevant to prove that the 

second death was a homicide, rather than (as the defendant 

claimed) an accident.

Commonwealth v. Kinard, 95 A.3d 279, 294–95 (Pa. Super. 2014).
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Here, the trial court concluded that the situation in this case is analogous 

to this Court’s decision in Tyson, supra. The facts of Tyson are the following:

On July 31, 2010, [the victim, G.B.,] left work because she felt ill 

after donating plasma. G.B. asked [Tyson], whom she knew 

casually, to bring her some food. [Tyson] 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 [Tyson] 

having vaginal intercourse with her. [Tyson] told G.B. she had 

taken her pants off for him. G.B. claims she told [Tyson] 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 

[Tyson] naked. G.B. claims she told [Tyson] she did not want to 

have sex with him and returned to bed. Shortly thereafter, G.B. 

claims, she woke up; and [Tyson] was again having vaginal 

intercourse with her. G.B. told [Tyson] to stop and asked him what 

he was doing. [Tyson] told G.B. her eyes were open the whole 

time. G.B. told [Tyson] to leave her apartment. G.B. then went to 

a hospital for treatment.

Tyson, 119 A.3d at 356.

Prior to Tyson’s trial, the Commonwealth filed a motion in limine seeking 

to introduce evidence of Tyson’s 2001 rape conviction on the basis that the 

instant rape was part of a “common scheme or plan” and that Tyson’s defense 

that he believed G.B. consented was less likely to be a mistake (i.e. absence 

of mistake exception). Id. The trial court declared Tyson’s prior conviction 

inadmissible, and the Commonwealth filed an interlocutory appeal. On appeal, 

this Court reversed. First, this Court concluded that Appellant’s prior rape 

conviction was relevant.

Instantly, the record reveals the following factual similarities 

between the present case and [Tyson’s] prior rape conviction. In 

each case, [Tyson] was acquainted with the victim—a black 

female in her twenties—and he was an invited guest in the victim’s 

home. [Tyson] was aware that each victim was in a weakened or 
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compromised state. Each victim ultimately lost consciousness. In 

each case, the victim awoke in her bedroom in the early morning 

hours to find [Tyson] having vaginal intercourse with her. The 

evidence of [Tyson’s] prior rape passes the basic relevance 

threshold, as it tends to increase the probability that [Tyson] 

knowingly had non-consensual sex with G.B. in the present case. 

Tyson, 119 A.3d at 360 (citations omitted). With respect to the absence of 

mistake exception, this Court concluded that 

the trial court should have declared the evidence of [Tyson’s] prior 

rape conviction admissible under the absence of mistake or 

accident exception to Rule 404. [Tyson] disputes G.B.’s account 

that she was asleep when [Tyson] initiated sexual intercourse with 

her—[Tyson] maintains he thought G.B. consented to the act. 

Given the relevant similarities between the two incidents, 

evidence of [Tyson’s] prior rape would tend to prove he did not 

“mistakenly believe” G.B. was awake or gave her consent. [Tyson] 

was invited into G.B.’s home for another reason, [Tyson] knew 

G.B. was in a compromised state, and G.B. awoke to find [Tyson] 

having vaginal intercourse with her. [Tyson’s] prior conviction 

would likewise show he had been invited into the home of an 

acquaintance, knew the victim was in a compromised state, and 

had [nonconsensual] sex with the victim while the victim was 

unconscious. The prior conviction would tend to prove [Tyson] was 

previously in a very similar situation and suffered legal 

consequences from his decision to have what proved to be 

nonconsensual vaginal intercourse with an unconscious victim. 

Thus, the evidence would tend to show [Tyson] recognized or 

should have recognized that, as with [his prior victim], G.B.’s 

physical condition rendered her unable to consent. The jury must 

have a chance to decide if [Tyson], in light of his past legal 

experience and conviction for a substantially similar criminal 

episode, could have reasonably concluded G.B.’s consent was 

possible under comparable circumstances.

... [C]ertain differences between the two incidents—such as 

the exact reason the victim was in a compromised state—are not 

essential to the question of whether [Tyson] mistakenly believed 

G.B. consented to sexual intercourse. The evidence of [Tyson’s] 

prior crime is highly probative of the fact that [Tyson] could not 

have reasonably believed G.B. was conscious enough to give her 

consent. Rather, the evidence of the prior conviction tends to 
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prove [Tyson] intentionally exploited another opportunity to take 

advantage of a woman sexually, when he knew the woman was in 

a diminished state. The prior crime at issue fits within the absence 

of mistake or accident exception to Rule 404. Given the 

established similarity between the incidents, we conclude 

[Tyson’s] prior conviction is highly probative on the issue of 

consent, but not so remote in time[3] or unduly prejudicial as to 

bar its admission under the absence of mistake or accident 

exception to Rule 404. 

Tyson, 119 A.3d at 362-63 (citations omitted; emphasis in original).

In weighing the probative value of this prior conviction with the 

prejudicial effect of its admission, this Court opined as follows.

[T]he probative value of [Tyson’s] prior conviction outweighs its 

potential for unfair prejudice. The prior conviction should not be 

shielded from the factfinder merely because it is harmful to 

[Tyson]; the question is whether evidence of [Tyson’s] prior 

conviction would be unduly prejudicial. The substantial similarity 

between the two incidents gives the evidence of [Tyson’s]

previous crime considerable probative value. In light of the 

important similarities, the nature of [Tyson’s] prior crime alone 

does not render it unduly prejudicial. See Commonwealth v. 

Frank, [] 577 A.2d 609 ([Pa. Super.] 1990) (holding admission of 

evidence of [Frank’s] prior sexual assaults of children under 

common plan exception was not unduly prejudicial where assaults 

possessed high degree of similarity and court issued cautionary 

instructions). Moreover, to alleviate the potential for unfair 

prejudice, the court can issue a cautionary instruction to the jury, 

to advise the jury of the limited purpose of the evidence and to 

clarify that the jury cannot treat the prior crime as proof of 

[Tyson’s] bad character or criminal tendencies. Jurors are 

presumed to follow the trial court’s instructions. 

Tyson, 119 A.3d at 361–62 (some citations omitted; emphasis in original).

 

3 Tyson’s convictions were five years apart.
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We now analyze the facts in the instant matter. First, as in Tyson, 

Appellant’s conduct that led to his juvenile adjudication, specifically that he 

acknowledges having had sex with B.B. but claims he did not hear her say no, 

is relevant to prove similar circumstances in his rape of T.V. Appellant invited 

both B.B. and T.V. to his home and into his bedroom. There is no question as 

to his identity and both of his victims acknowledge intercourse occurred; the 

contested fact is whether this intercourse was consensual. T.V. and B.B. both 

claimed they said no. Appellant claimed that if they did, he did not hear them.

As in Tyson, the evidence of the prior adjudication “passes the basic relevance 

threshold, as it tends to increase the probability that” Appellant knowingly had 

non-consensual sex with T.V. in this case. 119 A.3d at 360. Similarly, we 

agree that the absence of mistake exception applies in this case. As in Tyson, 

“[g]iven the relevant similarities between the two incidents, evidence of” 

Appellant’s prior adjudication “tend to prove he did not ‘mistakenly believe’” 

that T.V. did not say no. 119 A.3d at 362.

We now consider whether the trial court erred in concluding “the 

probative value of the evidence outweighs its potential for prejudice.” Pa.R.E. 

404(b)(3). Appellant argues that “the Commonwealth’s need for 

corroborating evidence here is clearly distinguishable from the prosecution’s 

need for corroborating evidence [in other cases], where the complainant 

either failed to [report promptly] the assault or there was simply a lack of 

corroborating evidence.” Appellant’s Brief at 33-34.
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In this case, there were text messages between Appellant and T.V. 

corroborating both of their stories, namely that T.V. said no and that 

Appellant claimed he did not hear her. Thus, evidence that Appellant had 

utilized this defense under similar circumstances is certainly probative. 

Accordingly, we hold the trial court did not abuse its discretion.

However, we still must consider whether its admission was “unduly

prejudicial.” Commonwealth v. Gordon, 673 A.2d 866, 870 (Pa. 1996) 

(emphasis in original); Commonwealth v. Diehl, 140 A.3d 34, 41 (Pa. 

Super. 2016)(“The admission of evidence becomes problematic only when its 

prejudicial effect creates a danger that it will stir such passion in the jury as 

to sweep them beyond a rational consideration of guilt or innocence of the 

crime on trial.”).

We recognize rape is a heinous crime that could and should inflame the 

passions of a jury. However, the details of these crimes are not such that it 

was an error of law or abuse of discretion for the trial court to believe a jury 

would be unable to look past the details of the crime and to consider 

Appellant’s prior adjudication only for the purpose for which it was permitted. 

In fact, the trial court provided two specific cautionary instructions to the jury, 

pointing out the limited purpose for which this evidence could be considered. 

“[A] cautionary jury instruction may ameliorate the prejudicial effect of the 

proffered evidence.” Commonwealth v. Hairston, 84 A.3d 657, 666 (Pa. 

2014). “Jurors are presumed to follow the trial court’s instructions.” Id. 
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Accordingly, recognizing that evidence of this nature is always prejudicial, 

based on the facts of this case, we conclude that it was not unduly prejudicial 

here. Thus, the trial court did not abuse its discretion.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/7/2018