J-S22035-15 

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 

*Retired Senior Judge assigned to the Superior Court. 

COMMONWEALTH OF PENNSYLVANIA, 

 Appellee 

v. 

R.S., 

 Appellant 

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IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 

No. 1733 WDA 2014 

Appeal from the Judgment of Sentence Entered October 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 sentence entered on 

October 27, 2014, following his convictions for various 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 assault 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 hand. 

Subsequent assaults, which took place every other weekend 

while A.S. visited the home, escalated into Appellant forcing A.S. 

to touch his penis and Appellant ejaculating after he penetrated 

A.S.’s vagina and buttocks. Appellant also ejaculated in A.S.’s 

mouth and forced her to swallow his semen. After the 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. 

 
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 On September 6, 2013, the Commonwealth filed a Motion 

to Introduce Evidence Of Other Crimes, Wrongs or Bad Acts 

Pursuant To Pennsylvania Rules of Evidence 404(b). On 

September 11, 2013, during a hearing on an unrelated 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 related to the 

abuse of his granddaughter]. On January 15, 2014, [Appellant] 

was sentenced to [an aggregate term of 162 to 324 months’ 

imprisonment. Appellant was also classified as a Sexually 

Violent Predator]. 

Trial Court Opinion, 12/4/2014, at 1-2. 

 Appellant filed his original notice of appeal on June 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 court, and Appellant filed a 

timely notice of appeal and Pa.R.A.P. 1925(b) statement, addressing the 

same issue he raised in his original appeal: 

 Whether the trial court abused its discretion in granting the 

Commonwealth’s motion to introduce evidence of other crimes, 

wrongs or bad acts pursuant to Pennsylvania Rule of Evidence 

404(b) thereby preventing [Appellant] from testifying on his own 

behalf. 
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Appellant’s Brief at 3 (unnecessary capitalization and suggested answer 

omitted). 

 Appellant’s argues that the trial court’s erroneous grant of the 

Commonwealth’s Rule 404(b) motion precluded him from testifying on his 

own behalf at trial. Appellant’s Brief at 7. Appellant is not entitled to relief.

 The certified record reveals the following facts. Prior to trial, the 

Commonwealth sought to introduce Appellant’s 1989 conviction for sexually 

assaulting his then-minor daughter, arguing that, although it occurred 22 

years before the instant offense, the prior conviction was relevant and its 

probative value outweighed any prejudicial effect. Appellant argued that his 

prior conviction was prohibited prior bad acts evidence. N.T., 9/24/2013, at 

47-49. The trial court determined that the evidence was admissible under 

Pa.R.E. 404(b) as substantive proof of a common plan or scheme of sexual 

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

 

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 (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 order to show 

that on a particular occasion the person acted in accordance with 

the character. 

(2) Permitted Uses. This 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. 
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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 decision to waive his right 

to testify was based upon the trial court’s grant of the Commonwealth’s 

404(b) motion. The trial court’s order permitted the Commonwealth to 

introduce the prior conviction substantively. The Commonwealth did not 

introduce the evidence. Additionally, even if the evidence had been 

introduced, we fail to see how the grant of the motion in any way impacted 

Appellant’s right to testify. Accordingly, we determine 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).
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