J-S22035-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

*Retired Senior Judge assigned to the Superior Cour t. COMMONWEALTH OF PENNSYLVANIA, Appellee

v. R.S., Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1733 WDA 2014 Appeal from the Judgment of Sentence Entered Octobe r 27, 2014,

in the Court of Common Pleas of Erie County, Criminal Division, at No(s): CP-25-CR-0000983-2013 BEFORE: PANELLA, LAZARUS, and STRASSBURGER, JJ.* MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 03, 2015 R.S. (Appellant) appeals from the judgment of sente nce entered on October 27, 2014, following his convictions for var ious sex offenses. After review, we affirm.

The trial court set forth the relevant factual and procedural background of this case as follows. This case involves Appellant’s repeated sexual assa ult of his then[-]six[-]year[-]old granddaughter, A.S., at his residence [in] Venango Township, Erie County, Pennsylvania. During the first assault, Appellant touched A.S.’s vagina with his h and. Subsequent assaults, which took place every other w eekend while A.S. visited the home, escalated into Appella nt forcing A.S. to touch his penis and Appellant ejaculating after he penetrated A.S.’s vagina and buttocks. Appellant also ejaculat ed in A.S.’s mouth and forced her to swallow his semen. After th e assaults, Appellant spanked A.S. and, at times, threatened to harm A.S.’s mother[, Appellant’s former daughter-in-law,] if A. S. told anyone about the assaults.J-S22035-15

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On September 6, 2013, the Commonwealth filed a Mot ion to Introduce Evidence Of Other Crimes, Wrongs or Ba d Acts Pursuant To Pennsylvania Rules of Evidence 404(b). On September 11, 2013, during a hearing on an unrelate d matter, [the trial court] stated it would defer its ruling [on the Rule 404(b) issue] until [the] time of trial. [Following a hearing that occurred on the day of trial, the court granted the Commonwealth’s Rule 404(b) motion.] On September 25, 2013, following a two[-]day jury trial, Appellant was found guilty of [nine sex offenses re lated to the abuse of his granddaughter]. On January 15, 2014, [Appellant] was sentenced to [an aggregate term of 162 to 324 m onths’ imprisonment. Appellant was also classified as a S exually Violent Predator]. Trial Court Opinion, 12/4/2014, at 1-2. Appellant filed his original notice of appeal on J une 23, 2014, and complied with the trial court’s directive to file a statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925( b). That appeal was

dismissed for failure to file a brief. Commonwealth v. Straub , 253 WDA 2014 (Pa. Super. filed June 23, 2014) ( per curiam ). Appellant’s appellate rights were ultimately reinstated by the trial cour t, and Appellant filed a timely notice of appeal and Pa.R.A.P. 1925(b) state ment, addressing the same issue he raised in his original appeal: Whether the trial court abused its discretion in g ranting the Commonwealth’s motion to introduce evidence of othe r crimes, wrongs or bad acts pursuant to Pennsylvania Rule of Evidence 404(b) thereby preventing [Appellant] from testifyi ng on his own behalf.J-S22035-15

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Appellant’s Brief at 3 (unnecessary capitalization and suggested answer omitted). Appellant’s argues that the trial court’s erroneou s grant of the Commonwealth’s Rule 404(b) motion precluded him fro m testifying on his own behalf at trial. Appellant’s Brief at 7. Appell ant is not entitled to relief. The certified record reveals the following facts. Prior to trial, the Commonwealth sought to introduce Appellant’s 1989 c onviction for sexually assaulting his then-minor daughter, arguing that, a lthough it occurred 22 years before the instant offense, the prior convict ion was relevant and its probative value outweighed any prejudicial effect. Appellant argued that his prior conviction was prohibited prior bad acts evid ence. N.T., 9/24/2013, at

47-49. The trial court determined that the evidenc e was admissible under Pa.R.E. 404(b) as substantive proof of a common pla n or scheme of sexual

abuse. 1 Id. at 49-56. Ultimately, the Commonwealth did not present the

1 (b) 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 ord er to show that on a particular occasion the person acted in a ccordance with the character. (2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, inten t, 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 outweig hs its potential for unfair prejudice.J-S22035-15

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evidence of Appellant’s prior conviction at trial. After the Commonwealth rested, Appellant waived his right to testify. N.T. , 9/25/2013, at 3-4, 13-14. Appellant has failed to convince us that his decis ion to waive his right to testify was based upon the trial court’s grant o f the Commonwealth’s 404(b) motion. The trial court’s order permitted t he Commonwealth to introduce the prior conviction substantively. The C ommonwealth did not introduce the evidence. Additionally, even if the evidence had been introduced, we fail to see how the grant of the mot ion in any way impacted Appellant’s right to testify. Accordingly, we deter mine that he is not entitled

to relief. Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/3/2015

Pa.R.E. 404(b).J-S22035-15

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