J-A23005-13

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

WILLIAM J. LYNN,

Appellant No. 2171 EDA 2012

Appeal from the Judgment of Entered Sentence July 24, 2012

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0003530-2011

BEFORE: BENDER, P.J.E., DONOHUE, J., and MUSMANNO, J. 

MEMORANDUM BY BENDER, P.J.E.: FILED December 22, 2015

Appellant, William J. Lynn, appeals from the judgment of sentence of 3 

– 6 years’ incarceration, imposed following his conviction for endangering 

the welfare of children (EWOC).1 The instant case is on remand from our 

Supreme Court, see Commonwealth v. Lynn, 114 A.3d 796 (Pa. 2015), 

for consideration of issues originally raised but not decided by our Court, 

see Commonwealth v. Lynn, 83 A.3d 434 (Pa. Super. 2013). After careful 

review, we conclude that the trial court abused its discretion by admitting a 

high volume of unfairly prejudicial other-acts evidence and, on that basis, 

we vacate Appellant’s judgment of sentence and remand for a new trial.

Factual Background

____________________________________________

1 18 Pa.C.S. § 4304. 
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Appellant, Monsignor William J. Lynn, served as Secretary for Clergy 

(“Secretary”) for the Archdiocese of Philadelphia (“Archdiocese”) from June 

of 1992 until June of 2004. During that time, Appellant was responsible for, 

inter alia, handling clergy sexual abuse issues that arose within the 

Archdiocese. In that capacity, Appellant supervised a priest, Edward V. 

Avery (“Avery”), who molested a ten-year-old altar boy at St. Jerome’s 

Parish in 1999. In his capacity as Secretary, Appellant placed Avery in a 

rectory at St. Jerome’s following allegations of sexual abuse that came to 

light in 1992, regarding Avery’s conduct at another parish between 1978 and 

1981. The jury in this case ultimately convicted Appellant of EWOC for his 

deficient supervision of Avery. A full summary of the facts relating to 

Appellant’s supervision of Avery can be found in our December 26, 2013 

Opinion. See Lynn, 83 A.3d at 437-45. Additionally, our Supreme Court 

also provided its own summary of this evidence, and related matters, in its 

April 27, 2015 decision. See Lynn, 114 A.3d at 798-808. 

Procedural History

As we noted in our previous opinion: 

This case was initiated by a criminal complaint charging 

Appellant with two counts each of EWOC, 18 Pa.C.S. § 4304, and 

conspiracy to commit EWOC, 18 Pa.C.S. § 903, relating to his 

supervision of Avery and another priest, Reverend James 

Brennan (“Brennan”). Initially, both Avery and Brennan were 

scheduled to be tried alongside Appellant as co-defendants. 

However, Avery pled guilty to involuntary deviate sexual 

intercourse[, 18 Pa.C.S. § 3123,] and conspiracy to commit 

EWOC on March 22, 2012, after the jury had been selected but 
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before the Commonwealth began presenting its case. Brennan 

remained as Appellant's co-defendant until the case concluded. 

Appellant's and Brennan's jury trial commenced on March 

26, 2012. The Commonwealth rested its case on May 17, 2012 

and, at that time, the trial court granted Appellant's motion for 

judgment of acquittal with regard to the Brennan-related 

conspiracy count, but denied the motion with respect to the 

remaining counts. The trial ended on June 22, 2012, when the 

jury returned a verdict of guilty with respect to the Avery-related 

EWOC charge, and acquitted him of the Avery-related conspiracy 

and Brennan-related EWOC charges.17 Appellant did not file 

post-sentence motions. 

___

17 The jury failed to reach a verdict on any of the charges 

pending against Brennan.

___

On July 24, 2012, the trial court sentenced Appellant to a 

term of 3–6 years' incarceration for EWOC, graded as a thirddegree felony.18

 Appellant filed a timely notice of appeal on 

August 8, 2012, and complied in a timely fashion with the trial 

court's order to file a concise statement of errors complained of 

on appeal pursuant to Pa.R.A.P. 1925(b). The trial court 

eventually filed its 1925(a) opinion on April 12, 2013.

___

18 EWOC is a third-degree felony, rather than a firstdegree misdemeanor, “where there is a course of conduct 

of endangering the welfare of a child[.]” 18 Pa.C.S. § 

4304(b).

___

Lynn, 83 A.3d at 445.

Appellant originally presented ten questions for our review, which fall 

generally into four categories: First, Appellant challenged the sufficiency of 

the evidence supporting his conviction. Appellant’s Brief, at 16-40. Second, 

Appellant asserted the trial court abused its discretion by improperly 

charging the jury. Id. at 40-54. Third, he claimed the trial court abused its 
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discretion by improperly admitting evidence of twenty-one instances of 

other-acts under Pa.R.E. 404(b)(2). Id. at 54-68. Fourth, Appellant 

claimed the trial court abused its discretion when it denied his motion for a 

mistrial following prosecutorial misconduct that purportedly occurred during 

the Commonwealth’s closing argument. Id. at 68-70.

In an opinion filed on December 26, 2013, this Court reversed 

Appellant’s conviction on sufficiency grounds, concluding that Appellant was 

not a “supervisor” within the meaning of the EWOC statute and, therefore, 

that he could not be charged as a principal thereunder. See Lynn, 83 A.3d 

at 453-54. Additionally, we held that there was insufficient evidence to hold 

him accountable as an accomplice to Avery’s commission of an EWOC 

offense. Id. at 457. Consequently, this Court did not address Appellant’s 

non-sufficiency related claims. This Court also did not address certain 

aspects of Appellant’s sufficiency-related claims, particularly with respect to 

whether Appellant possessed the requisite mens rea to commit EWOC as a 

principal.

Following our decision, the Commonwealth petitioned Pennsylvania’s 

Supreme Court for allowance of appeal. The Supreme Court granted that 

petition on May 8, 2014, accepting for review the following issues:

(1) Was the evidence insufficient to prove endangering the 

welfare of children because defendant did not have direct contact 

with children?

(2) Assuming arguendo defendant could not endanger the 

welfare of children in his individual capacity, but as part of a 

general scheme placed a known sexual predator under his 
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control in a position that promoted the risk of further sexual 

assaults, was the evidence sufficient to convict him as an 

accomplice?

Commonwealth v. Lynn, 91 A.3d 1233 (Pa. 2014) (per curiam order). 

In an opinion issued on April 27, 2015, the Supreme Court reversed 

our December 26, 2013 decision, finding that this Court “erred in holding 

that the EWOC statute required evidence of direct supervision of children 

and overturning Appellee's conviction on that basis[,]” Lynn, 114 A.3d at 

827, because “the statute is plain and unambiguous that it is not the child 

that Appellee must have been supervising, but the child's welfare,” id. at 

823. The Supreme Court declined to answer the second issue upon which it 

granted the Commonwealth’s petition for allowance of appeal, because the 

Court ostensibly found that “the Commonwealth's evidence was sufficient to 

sustain the conviction for EWOC as a principal.” Id. at 827. Finally, the 

Supreme Court remanded “for further proceedings consistent with” its 

opinion. Id.

Following our Supreme Court’s decision, the parties flooded this Court 

with numerous filings seeking to litigate, inter alia, whether this panel could 

still address aspects of Appellant’s sufficiency claim(s) that were left 

unanswered by our December 26, 2013 opinion, and which were ostensibly 

outside the scope of our Supreme Court’s granting of the Commonwealth’s 

petition for allowance of appeal. See Appellant’s Application for Additional 

Briefing, 5/11/2015; and see Commonwealth’s Answer to Application for 

Additional Briefing, 5/18/2015. In response, by order dated June 16, 2015, 
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this Court directed the parties, pursuant to Appellant’s request, to provide 

supplemental briefing on the matter. See Order, 6/16/15, at 1-3. The 

parties complied in a timely fashion; Appellant filed a supplemental brief on 

June 30, 2015, and the Commonwealth filed its reply on August 5, 2015. 

Appellant’s original brief presented the following questions for our 

review:

1. Whether the pre-amended version of 18 Pa.C.S.A. § 4304 

(endangering the welfare of children) (“EWOC”) did not properly 

apply to Appellant, Msgr. William Lynn, who was not a parent, 

guardian or other person supervising the welfare of a child and 

who had no direct involvement with the child, never met and 

never knew the child, and whether Appellant’s trial as a 

supervisor under EWOC was a violation of the ex post facto

clauses of the U.S. and Pennsylvania Constitutions?

2. Whether the trial court erred in allowing the jury to deliberate 

on whether Appellant can be liable for EWOC as a principal or an 

accomplice when the Commonwealth failed to provide sufficient 

evidence to meet its burden of proving that Appellant violated 

each element of the crime, as either a principal or an 

accomplice?

3. Whether the lower court's refusal to provide a jury instruction 

on the definition of person supervising the welfare of a child 

consistent with Commonwealth v. Brown, 721 A.2d 1105 (Pa. 

Super. 1998)[,] and the model jury charge was reversible error 

mandating a new trial?

4. Whether the lower court's jury charge on the EWOC element 

of “knowingly,” which provided two directly conflicting 

definitions, was reversible error mandating a new trial?

5. Whether the lower court’s jury charge on the EWOC element 

of “duty of care,” which presupposed that the duty of care 

element was met and provided examples from civil, rather than 

criminal, law was reversible error mandating a new trial?

6. Whether the lower court’s undue emphasis on accomplice 

liability, as well as an erroneous definition of accomplice intent, 
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during its jury charge was reversible error mandating a new 

trial?

7. Whether the lower court’s jury charge about Appellant’s 

liability for endangering other unnamed minors supervised by 

Edward Avery, when there is no support in Pennsylvania law that 

EWOC applies to unknown and unknowable children, is reversible 

error mandating a new trial?

8. Whether the lower court’s jury instruction on whether 

endangering the welfare of a child behavior must be criminal, 

which permitted the jury in this case to wrongly infer that 

Appellant violated EWOC, even though there is no underlying 

criminal conduct that Appellant was aware of, was reversible 

error mandating a new trial?

9. Whether it was abuse of discretion for the lower court to 

admit evidence of acts of abuse by 21 other priests, dating to 

the late 1940's, pursuant to [Pa.R.Evid. 404(b)], and did the 

[c]ourt err in holding that this evidence passed the 

probative/prejudicial test of Pa.R.Evid. 403?

10. Whether it was abuse of discretion for the lower court not to 

grant a mistrial on the basis of the Commonwealth’s highly 

prejudicial summation which included numerous statements not 

supported by the trial record?

Appellant’s Brief, at 4-5. 

Collateral Estoppel/Issue preclusion

The first matter we will address is whether Appellant is precluded from 

arguing certain sufficiency claims due to the prior decision of our Supreme 

Court. It is undisputed that Appellant cannot re-litigate his sufficiency claim 

as it pertains to the matter of statutory interpretation that formed the 

explicit basis of the Supreme Court’s reversal of our prior decision. The 

Supreme Court specifically granted the Commonwealth’s petition for 

allowance of appeal on that basis, and decided squarely against this Court’s 

interpretation of the EWOC statute.
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Appellant contends, however, that his statutory construction 

argument—based on the theory that he was not within the class of persons 

held accountable under the statute—was not the only sufficiency issue that 

he raised regarding his culpability as a principal to EWOC when his appeal 

was originally before this Court. At that time, Appellant also presented 

claims pertaining to the mens rea element of EWOC, i.e., whether Appellant 

knowingly endangered the welfare of children and, separately, whether he 

owed a duty of care to the victim. Appellant argues that he is now entitled 

to a decision on the merits of these ostensibly distinct sufficiency claims 

because this Court did not address them in our December 26, 2013 opinion, 

and because they were not included within the Supreme Court’s granting of 

the Commonwealth’s petition for allowance of appeal. The Commonwealth 

regards our Supreme Court’s decision as precluding Appellant from asserting 

any other sufficiency claims on remand. 

Generally speaking, 

the doctrine of collateral estoppel, or issue preclusion, applies 

where the following four prongs are met:

(1) An issue decided in a prior action is identical to one 

presented in a later action;

(2) The prior action resulted in a final judgment on the 

merits;

(3) The party against whom collateral estoppel is asserted 

was a party to the prior action, or is in privity with a party 

to the prior action; and

(4) The party against whom collateral estoppel is asserted 

had a full and fair opportunity to litigate the issue in the 

prior action.
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Rue v. K-Mart Corp., 713 A.2d 82, 84 (Pa. 1998) (emphasis added). 

Initially, we note that the “prior action” for purposes of our analysis is 

the Supreme Court’s April 27, 2015 opinion. Also, there is no dispute with 

regard to the third prong of the Rue issue-preclusion test, as Appellant was 

clearly a party to that action. However, our resolution of the remaining 

three prongs depends on how broadly or narrowly Appellant’s sufficiency 

claims are construed and, ultimately, on the nature of the Supreme Court’s 

decision itself. 

Appellant was convicted of a single offense: EWOC. Appellant argues 

that his mens rea and duty-of-care sufficiency claims pertaining to that 

offense are stand-alone issues. Under that view, Appellant construes the 

Supreme Court’s prior decision in this case as having left these issues

unresolved on the merits and, therefore, now available for consideration on 

remand. The Commonwealth, on the other hand, portrays Appellant’s 

multiple sufficiency claims as a single sufficiency issue subdivided into 

multiple arguments. As such, the Commonwealth contends that the 

Supreme Court’s decision constituted a final judgment on the merits of 

Appellant’s sufficiency issue, which collaterally estops Appellant from raising 

alternative sufficiency arguments on remand. In our view, both theories are 

plausible interpretations of the prior history of this case. 

We recognize that this Court did not address Appellant’s mens rea and 

duty-of-care sufficiency claims in our December 26, 2013 opinion. 

Furthermore, it is apparent that the Supreme Court did not expressly 
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address those matters in its April 27, 2015 opinion, nor did the High Court 

grant review to specifically address them. However, we are nonetheless 

constrained to agree with the Commonwealth that Appellant cannot now 

litigate those claims on remand. In doing so, however, we decline to adopt 

the Commonwealth’s reasoning that all sufficiency matters pertaining to the 

same offense constitute a single sufficiency issue composed of multiple 

arguments. Rather, we look to the Supreme Court’s decision itself and 

conclude that, by the manner in which it disposed of the issues accepted for 

review, the Supreme Court effectively precluded Appellant from arguing his 

mens rea and duty-of-care claims on remand. 

As noted above, our Supreme Court granted review of two questions, 

the first pertaining to Appellant’s culpability as a principal in regard to this 

Court’s (incorrect) decision to construe the EWOC statute as requiring direct 

supervision of children to impose liability for that offense, and the second 

regarding Appellant’s culpability as an accomplice. After resolving the first 

question against Appellant, the Court then declined to address the 

accomplice issue, stating that “[b]ecause we conclude that the 

Commonwealth's evidence was sufficient to sustain the conviction for EWOC 

as a principal, we do not address the separate contention that the evidence 

was insufficient to sustain the EWOC conviction as an accomplice.” Lynn, 

114 A.3d at 827 (emphasis added). 

Because the Supreme Court declined to address the accomplice-toEWOC issue on that basis, we must conclude that the High Court intended its 
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decision to be the final judgment as to any other of Appellant’s sufficiency 

claims attacking his culpability as the principal offender. It would not make 

sense for the Supreme Court to refuse to answer the accomplice question, 

after having granted review of the same, if there were remaining principalbased sufficiency issues left unresolved by its decision. If the Supreme 

Court had anticipated that principal-based sufficiency claims would be 

addressed on remand, it should have reached the accomplice question. If 

the Supreme Court had reached that question, a decision resolved in the 

Commonwealth’s favor (reversing our judgment on accomplice liability) 

would render moot any of Appellant’s remaining principal-based sufficiency 

claims.2 If resolved in Appellant’s favor (affirming our judgment on 

accomplice liability), then Appellant would have, at least, a colorable 

argument that the mens rea and duty-of-care sufficiency claims were ripe 

for review on remand and not precluded by collateral estoppel. However, by 

refusing to answer the accomplice question at all, the Supreme Court has 

telegraphed to this Court that its decision was a final judgment as to all of 

Appellant’s principal-based sufficiency claims. 

This Court cannot explain why the Supreme Court granted review on a 

single, principal-based sufficiency issue pertaining exclusively to statutory 

____________________________________________

2

If Appellant is guilty as an accomplice to the sole EWOC offense at issue, 

further litigation as to his role as the principal to that same offense would be 

redundant. 
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interpretation of the EWOC statute, but then issued a decision effectively 

precluding litigation of principal-based sufficiency claims, unrelated to 

Appellant’s statutory interpretation arguments, that had never been 

addressed by this Court in our December 26, 2013 opinion.3 Indeed, some 

parts of the Supreme Court’s opinion could reasonably be read to suggest 

that the Court was not issuing a final judgment as to the other aspects of 

Appellant’s sufficiency claims.4 However, our interpretation of the Supreme 

Court’s opinion is that it did just that when it declined to address the matter 

of accomplice liability by concluding that “the Commonwealth's evidence was 

sufficient to sustain the conviction for EWOC as a principal.” Lynn, 114 A.3d 

____________________________________________

3 The Commonwealth suggests that it was Appellant’s burden to file a crosspetition, in response to the Commonwealth’s petition for allowance of 

appeal, in order to preserve his mens rea and duty-of-care sufficiency claims 

that were left unaddressed by our December 26, 2013 opinion. See

Commonwealth Brief in Response to Defendant’s Supplemental Brief, at 11. 

The Commonwealth does not cite to any authority to support this theory, 

and it arguably conflicts with the Commonwealth’s other ostensibly 

unsupported theory—that all sufficiency claims pertaining to a single offense 

constitute a single, composite issue for purposes of collateral estoppel. If 

the latter theory is correct (and it very well may be), it is unclear why 

Appellant would be required to preserve subparts of the same claim for 

which the Commonwealth sought review. In any event, we need not 

address the validity of these theories, given our interpretation of the 

Supreme Court’s opinion. 

4 At one point, the Supreme Court states: “[W]hether [Appellant] owed a 

duty of care to the children of St. Jerome’s, or to D.G. in particular, is not an 

issue in this appeal and was not encompassed within our grant of allowance 

of appeal. Rather, the legal issue we address concerns solely whether the 

evidence sufficed to prove [Appellant]’s supervision of the welfare of a 

child.” Lynn, 114 A.3d at 823.

 
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at 827. Accordingly, we are compelled to conclude that Appellant is 

precluded from raising any sufficiency claims on remand.

Other Acts Evidence

For ease of disposition, we next address Appellant’s ninth claim of 

error. Appellant contends that the trial court abused its discretion when it 

admitted other-acts evidence concerning allegations leveled against 21 

priests other than Avery and Brennan, as well as evidence concerning the 

Archdiocese’s often bungled response to those allegations, matters for which 

Appellant was often the Archdiocese’s point man in his position as 

Secretary.5 Summarizing his claim concerning this evidence, Appellant 

asserts:

Of the 32 days of the Commonwealth’s case, at least 25 days 

focused primarily on evidence related to the Archdiocese’s 

handing of 21 other priests, dating as far back as the 1940s and 

in no way connected to the actions of either Avery or James 

Brennan or the circumstances surrounding their cases. The trial 

court improperly permitted the introduction of this evidence 

pursuant to Pa.R.E. 404(b). These files overwhelmed Appellant’s 

trial and prejudiced the jury against Appellant, as the 

representative of the Catholic Church. It is clear from the record 

that the Commonwealth introduced these files to put on trial the 

entire Archdiocese of Philadelphia, hoping to convict Appellant by 

proxy for the sins of the entire church. 

____________________________________________

5 There were at least a few cases where Appellant’s involvement predated 

his appointment as Secretary entirely, although some of other cases 

involved events that occurred when Appellant was an understudy to the 

previous Secretary in the management of problematic priests in the 

Archdiocese. 
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Appellant’s Brief, at 54-55. In his brief, Appellant challenges both whether 

this evidence fit any of the Pa.R.E. 404(b)(2) exceptions to the prohibition 

contained in Rule 404(b)(1), and, even if it did, whether the probative value 

of that evidence was outweighed by its potential for unfair prejudice. 

Asserting that such evidence was not admissible under the exception to the 

prohibition against other-acts evidence, Appellant argues that he is entitled 

to a new trial. Appellant preserved his claim in the lower court by objecting 

to the admission of this evidence in an answer to the Commonwealth’s 

pretrial Rule 404(b) motion filed on December 12, 2011, during a hearing on 

the matter which commenced on January 23, 2012, and during trial. 

Appellant also objected to the cautionary instructions issued by the trial 

court with regard to this evidence on the basis that they were insufficient to 

cure the resulting prejudice. 

The Commonwealth counters that the trial court did not abuse its 

discretion, arguing that the other-acts evidence was properly admitted, as it 

ostensibly served permissible purposes under Rule 404(b), and because the 

evidence was not unfairly prejudicial. The Commonwealth states:

The Commonwealth ... introduced evidence of 21 other cases 

probative of (inter alia) [Appellant]'s experience in supervising 

priests who sexually abused minors; his knowledge of their 

tendency to recidivate and the harm they inflict on their victims; 

and the priorities he served and methods he used to conceal and 

facilitate their misconduct in a manner that endangered children. 

The totality of these facts revealed a systematic pattern of 

knowledge and concealment, and refuted defendant's attempt to 

argue that he had no control over such priests or reason to 
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believe they were dangerous. Such evidence was highly 

probative.

Commonwealth’s Brief, at 38-39. 

We review challenges to the admission of ‘other acts’ evidence for an 

abuse of discretion. Commonwealth v. Patterson, 91 A.3d 55, 68 (Pa. 

2014), cert. denied sub nom., Patterson v. Pennsylvania, 135 S.Ct. 1400 

(2015) (“The admission of evidence of prior bad acts is solely within the 

discretion of the trial court, and the court's decision will not be disturbed 

absent an abuse of discretion.”). 

Our Supreme Court has summarized the relevant law as follows:

Generally, evidence of prior bad acts or unrelated criminal 

activity is inadmissible to show that a defendant acted in 

conformity with those past acts or to show criminal propensity. 

Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be 

admissible when offered to prove some other relevant fact, such 

as motive, opportunity, intent, preparation, plan, knowledge, 

identity, and absence of mistake or accident. Pa.R.E. 404(b)(2). 

In determining whether evidence of other prior bad acts is 

admissible, the trial court is obliged to balance the probative 

value of such evidence against its prejudicial impact. 

Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009).

We focus our analysis herein on the balancing test between the 

probative value of the other-acts evidence, and the potential for that 

evidence to have unfairly prejudiced Appellant. For purposes of this 

analysis, we assume that each of the 21 instances of other-acts evidence 

served at least some minimal probative value with regard to the permissible 

categories set forth in Rule 404(b)(2) (“This evidence may be admissible for 

another purpose, such as proving motive, opportunity, intent, preparation, 
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plan, knowledge, identity, absence of mistake, or lack of accident.”) 

(emphasis added). Furthermore, we note that the trial court admitted the 

disputed other-acts evidence en masse, balancing its collective probative 

value against its collective prejudice. See Trial Court Opinion (TCO), 

4/12/13, at 136 (“Cumulatively, this evidence, which was highly probative of 

[Appellant]’s knowledge, motive, and intent, outweighed its potential for 

prejudice.”). Because Appellant does not specifically claim that the trial 

court erred by treating this evidence collectively, and because the 

Commonwealth does not specifically justify the admission of this evidence on 

a case-by-case basis, we shall review the trial court’s admission of the 

totality of this evidence in kind. 

Probative Value of the Other-Acts Evidence

The trial court correctly indicated that, at trial, “the Commonwealth 

bore the burden to demonstrate that [Appellant] ‘knowingly endangered’ a 

child, as required under § 4304(a), or even beyond that, that he specifically 

intended that Avery endanger that child as needed to establish accomplice 

liability.” TCO, at 133. The trial court stated that this large volume of 

other-acts evidence was admissible under Rule 404(b)(2) because it 

“illuminat[ed] the [Appellant]'s knowledge, motive, and intent[, which] was 

critical for the jury's determination about [Appellant]'s mens rea when he 

supervised Avery.” TCO, at 180 (emphasis in original). The trial court also 

found that “[t]he substantial probative value of this uncharged evidence 

outweighed any potential for prejudice.” Id. 
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Explaining further, the trial court noted:

[First, i]n order for the jury to have returned a verdict on the 

EWOC and conspiracy charges against [Appellant], the jury 

needed to gain insight into what [Appellant] knew and what he 

intended when he supervised Avery. [Appellant] did not concede 

that he knew Avery to be a sexually abusive priest whose 

presence at St. Jerome's jeopardized the safety of children; 

therefore, the burden remained with the Commonwealth to 

establish this critical element.

***

Second, the "other acts" evidence was the only way for the jury 

to gain an understanding of [Appellant]'s thought process. 

Common sense suggests that all people learn with experience. 

The more information one acquires, the greater the perspective 

that he/she may bring to bear upon decisions in the future. 

[Appellant]'s study of the Secret Archives not only provided him 

with the information needed to create several lists categorizing 

the degree of sexual deviance of particular priests; it also taught 

him how to identify sexually abusive priests, and how the 

Archdiocese chose to deal with those individuals. It was then 

incumbent upon [Appellant] to decide whether to perpetuate the 

practices in place, or to instead take measures that protected 

children. This Court found that providing the jury with a broad 

picture of [Appellant]'s knowledge base — about the priests that 

he managed as well as about the "system" that he inherited —

would assist the jury with its determination as to what was 

actually in [Appellant]'s mind when he facilitated Avery's 

placement and stay at St. Jerome's.

TCO, at 133-35.

Thus, the trial court characterized the probative value of this evidence 

as ‘substantial.’ It is certainly the case that the volume of this evidence was 

substantial. We are less convinced, however, that the nature of this 

evidence was substantially probative of Appellant’s culpability for the actions 

of Avery and Brennan.
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First, the other-acts evidence in question covered a myriad of 

circumstances that provided only a minimal degree of insight into Appellant’s 

state of mind with respect to his dealings with Avery and Brennan. In this 

regard, the trial court often overstates the case for the probative value of 

the other-acts evidence under the rubric of fitting the “knowledge” exception 

under Rule 404(b)(2). For instance, the trial court indicates that one of the 

purposes of this evidence was to demonstrate Appellant’s knowledge “that 

sexually abusive priests constituted a danger to children whenever there was 

an opportunity for unsupervised contact[.]” TCO, at 143 (emphasis 

omitted). To this end, the trial court cites a particular case where Appellant 

had acknowledged that placing a priest, Father Thomas Wisniewski, at a 

parish without a school was preferable to placing that priest at a parish with 

a school, so as to limit the opportunity for contact with children.6 Id. at 

144. While this evidence, strictly speaking, may have tended to 

demonstrate Appellant’s knowledge that child sexual predators should not be 

allowed to be around children in unsupervised conditions, it does not follow 

that such evidence was necessary, or even particularly helpful, to conveying 

this point to the jury. Certainly a jury is capable of such common sense 

conclusions in the absence of such evidence, and could have concluded, 

____________________________________________

6 Appellant was aware at the time he made this statement that Father 

Wisniewski had previously admitted to frequently having oral sex with a 

minor high school student. 
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almost a priori, that any person of modest intelligence would recognize the 

peril. Thus, while probative in the sense that it was somewhat relevant to 

demonstrating Appellant’s knowledge, this evidence was not ‘substantially 

probative,’ nor was it necessary or critical evidence of Appellant’s mens rea. 

Illustrative of this point is Commonwealth v. Smith, 956 A.2d 1029 

(Pa. Super. 2008). In that case, the appellant, who had severely injured his 

infant son by shaking him, claimed that the Commonwealth failed to 

demonstrate the “knowing” element of EWOC. He argued that he was at 

most criminally negligent for endangering his son because he had not been 

“instructed by his doctor about the dangers of Shaken Baby Syndrome.” Id. 

We dismissed his sufficiency claim, stating: 

It takes nothing more than common sense for an adult, let alone 

an experienced father such as [the a]ppellant, to know that 

violently shaking an infant child with enough force to cause an 

abusive head trauma could threaten the child's physical and/or 

psychological welfare. Thus, there was sufficient evidence to 

support the jury's decision that Appellant knowingly violated a 

duty of care, protection or support.

Id. at 1038-39. Likewise, in the instant matter, while the evidence 

concerning Father Wisniewski may have tended to demonstrate Appellant’s 

knowledge that sexual predators endanger children in unsupervised 

conditions, common sense demonstrates that point with nearly equal vigor. 

Neverthess, the disturbing facts of Father Wisniewski’s molestation of 

children, which were not an issue at Appellant’s trial, were recounted before 

Appellant’s jury so as to provide the necessary context for the admissible 

evidence concerning Appellant’s “knowledge.” 
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Another basis cited by the trial court for the admission of the high 

volume of prior acts evidence was to establish Appellant’s motive to protect 

the Archdiocese’s reputation at the expense of the victims of clergy sexual 

abuse. With reference to the motive exception to Rule 404(b), this Court 

has held that: 

The mere identification of similarities between the prior bad acts 

and the crime at issue ... does not establish motive. Instead, ... 

there must be a firm basis for concluding that the crime 

currently on trial “grew out of or was in any way caused by the 

prior set of facts and circumstances.” 

Commonwealth v. Ross, 57 A.3d 85, 101 (Pa. Super. 2012) (internal 

citation omitted). 

The trial court admitted such ‘motive’ evidence regarding several 

priests who were repeatedly transferred to different parishes after their 

sexual abuse of minors came to light. See TCO, at 146-148. This evidence 

included damning statements from Appellant’s predecessors concerning the 

priorities of Archdiocese officials in dealing with sexual predators in the 

Church. However, a substantial volume of this evidence concerned the bad 

acts of priests, and the Archdiocese’s response thereto, that predated 

Appellant’s tenure as Secretary by many years, and in some cases, decades. 

Thus, even if this evidence tenuously provided the bare minimum degree of 

probative value to meet the ‘motive’ exception to the Rule 404(b) 

prohibition, it only did so by suggesting that Appellant followed the motives 

of his predecessors, and not through Appellant’s own prior conduct. 

Moreover, much of this evidence varied wildly in terms of its probative value. 
J-A23005-13

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The trial court summarizes some of this evidence as follows:

Immediately after accusations came to light in August 1964 that 

Father Joseph Gausch found a boy at a local swimming pool, 

took him to the rectory of Our Lady of Peace, and molested the 

child, he was transferred to another parish. In early 1977, 

Father Gausch admitted to having touched another boy, D.C., on 

the "backside" and to having told him that he had a beautiful 

body; within a month, Father Gausch was transferred to another 

parish. Father Raymond Leneweaver, who had admitted to 

engaging in a sexually abusive relationship with a student in 

1968, was caught providing alcohol to students in June 1971. 

By September of that year, Father Leneweaver was reassigned 

as an assistant pastor at a different parish. In September 1980, 

after Father Leneweaver admitted to abusing three others, 

Monsignor Statkus assigned Father Leneweaver to St. Joseph's 

the Worker in Bucks County, PA "because it is one of the few 

remaining areas where his scandalous actions may not be 

known." Towards the end of 1981, the pastor of St. Titus's 

Parish in Norristown, PA informed the Archdiocese about the 

possibility of "scandal in the parish" as a result of allegations 

that Father Francis Trauger had sexually abused a boy named 

S.K. Monsignor Statkus met with Father Trauger, who stated 

that he had shared a bed with S.K. and massaged the boy's 

"chest and back." Two days later, Father Trauger was 

transferred to St. Matthew's Parish in Philadelphia, PA. In July 

1977, Father Nicholas Cudemo was confronted with allegations 

that he had a number of affairs with female minors, and may 

have even impregnated one of them. Father Cudemo admitted to 

being "attracted to younger girls," but denied wrongdoing. 

Monsignor Statkus noted that he had reservations about 

transferring Father Cudemo, as he had "been changed twice 

previously to other high schools and yet the particular 

friendships have continued." Nonetheless, Monsignor Statkus 

transferred Father Cudemo to another parish roughly two 

months later. Following Father Edward DePaoli's guilty plea to 

receiving child pornography in federal court, Cardinal Bevilacqua 

called Father DePaoli to his office for a meeting in May 1988; 

Cardinal Bevilacqua told him it was "more advisable for [DePaoli] 

to return to the active ministry in another diocese" and assisted 

with Father DePaoli's placement in the Metuchen, NJ diocese. 

TCO, at 14-48. 
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Appellant did interact with some of these priests during his own 

tenure. However, Father Gausch was not in active ministry when Appellant 

received new information in 1994 concerning Gausch’s previously unknown 

molestation of a victim in the 1980’s, as Father Gausch had retired in 1992. 

There is also no indication in the record that Appellant had a supervisory role 

over Father Gausch when the priest was repeatedly reassigned to different 

parishes in the 1960’s and 1970’s following allegations of sexual impropriety. 

Thus, it cannot be fairly said from Appellant’s dealings with Gausch that 

Appellant had exalted the Archdiocese’s reputation over an ongoing risk to 

children, which ostensibly was the purpose for which this other-acts 

evidence was admitted against him. At best, this evidence demonstrated 

that Appellant valued the Archdiocese’s reputation over the value inherent in 

exposing Father Gausch’s prior misdeeds. That motive only tenuously 

relates to the distinct motive sought to be proven by the Commonwealth—

that Appellant actively exposed children to the risk of molestation so as to 

protect the Archdiocese from scrutiny. 

Indeed, it strains credulity to construe the crimes for which Appellant 

was charged as having grown “out of” or as having been “caused by” the 

Archdiocese’s prior dealings with Gausch. Ross, supra. Nevertheless, even 

if the evidence concerning Father Gausch was properly construed as 

probative as to motive (a highly questionable proposition), it was certainly 

not highly or substantially probative of Appellant’s motive in dealing with 

Avery and Brennan. 
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By contrast, Appellant’s dealings with Father Cudemo were more 

relevant and probative of this motive. Appellant spent the better part of a 

decade addressing accusations against Cudemo, and had concluded that 

Father Cudemo was a diagnosed pedophile. TCO, at 32. Despite this, 

Appellant, at the behest of or in conjunction with Cardinal Bevilacqua, 

permitted Father Cudemo to perform public Mass as a retired priest “in good 

standing,” and repeatedly misrepresented Father Cudemo’s past to 

individuals who came forward with new allegations against the priest. Id. 

Still, it not clear that Appellant’s current crimes grew “out of[,]” or were 

“caused by[,]” Appellant’s prior dealings with Cudemo. Ross, supra. 

This contrast between the evidence concerning Fathers Cudemo and 

Gausch highlights a failure to distinguish between significantly probative and 

minimally probative evidence. While the evidence concerning Father 

Cudemo did serve to demonstrate motive, based on ostensibly similar 

circumstances to Appellant’s dealings with Avery and Brennan, the evidence 

concerning the Archdiocese’s dealings Father Gausch only tended to 

demonstrate this in the most attenuated and remote fashion, if at all. And, 

while more probative of Appellant’s motive than the evidence concerning 

Father Gausch, it is a stretch to say the evidence concerning Father Cudemo 

was “highly” probative of Appellant’s motive in this case. Despite some 

similarities, Appellant’s experiences with Father Cudemo were far from 

identical to his experiences with Avery and Brennan. 
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Relatedly, the trial court also allowed evidence of Appellant’s 

predecessors’ overreliance on the diagnoses of psychiatric professionals:

[Appellant]'s predecessors required psychiatric professionals who 

evaluated priests to relay their conclusions to the Archdiocese. 

The Secret Archives revealed that [Appellant]'s predecessors 

grounded their decisions about how to manage priests in the 

conclusions offered by the Archdiocese's doctors, despite the fact 

that their findings were often facially incredible.

TCO, at 152. 

The probative value of a different Secretary’s dealings with an 

unrelated priest’s (mis)diagnosis had, at best, a remote and vague bearing 

on Appellant’s motive in this case. It again strains credulity that Appellant’s 

crimes in this case grew “out of[,]” or were “caused by[,]” Appellant’s 

predecessor’s overreliance on psychiatric professionals’ examinations of 

priests other than Avery and Brennan. Ross, supra. The trial court’s own 

understanding of the purpose of this evidence reveals that its introduction 

was not even based directly upon Appellant’s own prior conduct, but instead 

on his association with the Archdiocese: 

[Appellant]'s predecessors might have created the impression 

that the Archdiocese was acting responsibly, but blindly adopting 

recommendations proffered after inadequate psychological 

testing only helped sexually abusive priests to remain at large.

TCO, at 153. 

The thread that connected these events to Appellant’s case was his 

possession and control of the Secret Archive, which documented Appellant’s 

predecessors’ mishandling of problematic priests within the Archdiocese. 

However, evidence of Appellant’s predecessor’s overreliance on the 
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diagnoses of psychiatric professionals was purportedly offered to 

demonstrate Appellant’s motive with respect to his failure to mitigate or 

eliminate the risks posed by Avery and Brennan to children in the 

Archdiocese. The conduct of different people in relation to different sexual 

predators, different victims, and in different times, is on its face minimally 

probative of this motive, if probative at all.

Also typical of this marginally probative other-acts evidence of motive 

were the facts presented to the jury that were related to Father Leneweaver. 

In 1968, Father Leneweaver admitted to Archdiocese authorities that he had 

engaged in a two-year homosexual affair with a Catholic high school 

student. Despite this behavior, he was not removed from his post at 

Cardinal O’Hara High School.7 Three years later, the principal at Cardinal 

O’Hara reported that Father Leneweaver had been supplying alcohol to 

minors. As a result, in 1971, Father Leneweaver was reassigned to be an 

assistant pastor at St. Monica’s Parish. By 1975, it came to light that Father 

Leneweaver had engaged in sexual activities with three students at St. 

Monica’s. He was given a leave of absence and evaluated by a psychiatrist 

who ultimately concluded that Father Leneweaver showed no signs of a 

serious mental disorder, and had merely acted out in reaction to difficulties 

with his family. Father Leneweaver was subsequently reassigned, yet again, 

____________________________________________

7 The student/victim was from a different Catholic high school. 
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to St. Agnes Parish, but without his new assignment being published. Five 

years later, it came to light that Father Leneweaver had molested an eighthgrade student at St. Agnes on multiple occasions. After confessing to these 

acts, Father Leneweaver was sent for treatment at St. John Vianney. During 

this time, Archdiocese authorities learned that Father Leneweaver was 

visiting the homes of St. Agnes parishioners, including those with minor 

children. Further investigation revealed that Father Leneweaver had made 

sexual advances toward those children as well. After these events, Father 

Leneweaver was again assigned to another Parish in Bucks County. With 

regard to this assignment, the Chancellor of the Catholic Schools in the 

Archdiocese told one of the doctors who had counseled Father Leneweaver 

that the Bucks County assignment was made “because it is one of the few 

remaining areas where his scandalous actions may not be known.” TCO, at 

116 (quoting from Exhibit C-134, N.T., 3/29/2012, at 59). Ultimately, 

Father Leneweaver himself requested a permanent leave of absence from 

the Archdiocese in 1980, which apparently was granted. 

Appellant placed Father Leneweaver on a list of priests who were 

“Guilty of Sexual Misconduct with Minors” in 1994, based on Father 

Leneweaver’s admissions in 1968, as recounted in the Secret Archive. In 

1997, or thereabouts, Father Leneweaver requested to be reinstated in the 

Archdiocese, and Appellant recommended to Cardinal Bevilacqua that Father 

Leneweaver not be accepted back. In making this recommendation, 

Appellant stated that Father Leneweaver presented too great a risk to “the 
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diocese, for the Bishop, for himself and the legal repercussions of having him 

in ministry.” TCO, at 117 (quoting Exhibit C-152, N.T., 3/29/2012, at 78-

80). 

The trial court admitted this evidence as probative of Appellant’s 

motive to “[k]eep parishioners in the dark” about clergy sex abuse. Id. at 

154. However, it again strains credulity to believe that Appellant’s criminal 

conduct relating to Avery and Brennan grew “out of[,]” or was “caused 

by[,]” Appellant’s limited dealings with Leneweaver. Appellant did not assist 

Father Leneweaver in any way, did not appoint or recommend that he be 

appointed to any position within the Archdiocese, and, in fact, Appellant 

recommended that Father Leneweaver not be permitted to return to the 

Archdiocese in any capacity. Thus, the likelihood that Appellant’s current 

crimes grew “out of[,]” or were “caused by[,]” the facts concerning Father 

Leneweaver is virtually nil. Ross, supra. While Appellant’s 

recommendation to not permit Father Leneweaver to return may have been 

callous with respect to the threat his return might present to potential 

victims, it is clear that this evidence was, at best, of trivial probative value 

as to Appellant’s motive with regard to the offenses concerning Avery and 

Brennan. 

Although the preceding evidence is largely representative of the otheracts evidence at issue, the magnitude of the other-acts evidence at issue is 

so large that further consideration of its probative value is impractical, as 

additional analysis could easily consume dozens if not hundreds of additional 
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pages. Having thoroughly reviewed this evidence, however, we can 

confidently conclude that the trial court’s description of this evidence as 

being “highly probative” of Appellant’s mens rea with respect to crimes 

related to Avery and Brennan is a substantial overstatement that risks 

mischaracterizing the nature of the specific evidence actually introduced. 

Some of this evidence, including but not limited to the examples cited 

above, is only marginally probative of any Rule 404(b)(2) category. None of 

the evidence concerned the actual victim(s) in this case, and none of it 

directly concerned Appellant’s prior dealings with either Avery or Brennan. 

In this regard, the trial court has apparently mistaken quantity for quality in 

construing the probative value of this evidence en masse. Consequently, we 

disagree with the trial court’s characterization, and conclude instead that, 

while some of this evidence was probative of Appellant’s mens rea vis-à-vis

the various Rule 404(b)(2) categories, the probative value of significant 

quantities of this evidence was trivial or minimal. 

Potential Prejudice of the Other-Acts Evidence

Merely crossing the threshold of demonstrating that other-acts 

evidence was probative of some Rule 404(b)(2) category does not, by itself, 

demonstrate admissibility. “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) (emphasis added). In this context, “‘[u]nfair 

prejudice’ means a tendency to suggest decision on an improper basis or to 
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divert the jury's attention away from its duty of weighing the evidence 

impartially.” Commonwealth v. Dillon, 925 A.2d 131, 141 (Pa. 2007).

Often cited in conjunction with this balancing test, as invoked by the 

trial court in this case, is our Supreme Court’s elucidation on the topic of 

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

Not surprisingly, criminal defendants always wish to excise 

evidence of unpleasant and unpalatable circumstances 

surrounding a criminal offense from the Commonwealth's 

presentation at trial. Of course, the courts must make sure that 

evidence of such circumstances have some relevance to the case 

and are not offered solely to inflame the jury or arouse prejudice 

against the defendant. The court is not, however, 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 and form part of the history and natural development of 

the events and offenses for which the defendant is charged, as 

appellant would have preferred.

Id. at 501. 

Naturally, as the Lark Court suggests, relevant evidence of Appellant’s 

culpability for the charged offenses should not be excluded merely because it 

tends to demonstrate his guilt. However, our Supreme Court has also 

advised that, “to be admissible under the [motive] exception, evidence of a 

distinct crime, even if relevant to motive, ‘must give sufficient ground to 

believe that the crime currently being considered grew out of or was in any 

way caused by the prior set of facts and circumstances.’” Commonwealth 

v. Roman, 351 A.2d 214, 218-19 (Pa. 1976) (emphasis added). Thus, we 

must not forget that the rule being applied is that other-acts evidence is by 

default inadmissible unless a Rule 404(b)(2) category or similar justification 
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applies, and the probative value of that evidence outweighs its potential for 

prejudice. The burden is on the party seeking admission to demonstrate the 

applicability of the exception to the general rule; in this case, that burden 

fell on the Commonwealth. There is no presumption of admissibility of 

other-acts evidence merely because it is somewhat relevant for a nonpropensity purpose.

The context of the Lark Court’s warning is relevant to the balancing 

test in the instant case. In Lark, the appellant disputed the propriety of 

trying him jointly for multiple offenses, claiming that the crimes “were not of 

a similar character and had not arisen from a single criminal transaction, and 

that he would be unduly prejudiced by consolidation of these offenses at 

trial.” Lark, 543 A.2d at 496. The Lark court determined that Lark was not 

unduly prejudiced by consolidation based on the following facts: Lark had 

robbed the victim at gunpoint, but was immediately apprehended thereafter. 

The day before that victim was scheduled to testify against Lark at the 

preliminary hearing for the robbery, the victim was murdered at his place of 

business. Witnesses testified that Lark had made statements while out on 

bail for the robbery indicating his intent to kill the victim before he was 

allowed to testify, and that, after the killing, Lark had bragged about it. 

Evidence also demonstrated that Lark later threatened both prosecutors and 

detectives involved in the robbery and murder cases. 

Thus, in Lark, the other-acts evidence at issue directly involved Lark’s 

attempt to cover his tracks following his robbery of the victim, which 
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manifested with the murder of the victim and the multiple threats issued to 

the various authorities who were attempting to bring him to justice. Thus, 

the facts that constituted the multiple crimes for which Lark was jointly tried 

were inextricably intertwined. Lark’s first crime was the direct impetus that 

motivated each subsequent crime. Notably, all of the other-acts/othercrimes evidence at issue in Lark related directly to Lark’s own aberrant 

behavior. Moreover, a substantial portion of other-acts evidence at issue in 

Lark directly provided the factual basis for the charged offenses for which 

Lark was being jointly tried. 

Appellant’s mishandling of priests other than Avery and Brennan, who 

molested different children, and in different circumstances, was not clearly 

within the web of facts pertaining to Appellant’s misconduct with Brennan 

and Avery. This is true regardless of whether his actions in those other 

cases tended to speak to an overarching motive to protect the Church 

and/or Archdiocese from ill-repute at the expense of the safety of children in 

the Archdiocese. Moreover, the other-acts evidence that did not relate to 

Appellant’s prior conduct, but instead to the conduct of his predecessors, 

was not at all within the web of facts that pertained to Appellant’s 

mishandling of Avery and Brennan. 

Notably, the trial court spends virtually no time addressing the 

prejudicial value of the copious amounts of other-acts evidence at issue in 

this case. After discussing the probative value of this evidence at great 

length, see TCO, at 132-180, the trial court summarily concludes that any 
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such prejudice was outweighed by its probative value, id. at 180. Therefore, 

in more than 160 pages discussing other-acts evidence (110 plus pages 

summarizing the other-acts evidence, and 50 plus pages of analysis), the 

trial court dedicated precisely one sentence to discussing the potential for 

that evidence to prejudice Appellant.

Nevertheless, we conclude that the potential for unfair prejudice was 

great when the court admitted evidence of the sexual molestation of children 

at the hands of sexually deviant priests other than those directly at issue in 

the case at hand. When that evidence involved acts that occurred long 

before Appellant bore any responsibility for problematic priests within the 

Archdiocese, the potential for unfair prejudice was even greater. 

By Appellant’s calculation, the presentation of this contested evidence 

consumed more than three-quarters of his trial (25 of 32 days)—an estimate 

undisputed by the Commonwealth and, by our own estimation, a reasonably 

accurate representation of the bulk of Appellant’s trial. Indeed, this 

imbalance is also reflected in the trial court’s summary of the evidence. The 

court’s summary of facts pertaining to Appellant’s handling of Avery 

encompasses approximately 17 pages of the court’s Rule 1925(a) opinion, 

see TCO, at 2-18, while the court’s summary of the other-acts evidence 
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consumes nearly 113 pages of that same opinion, see TCO, at 20-132.8 

Thus, regarding the trial court’s summary of the facts adduced at Appellant’s 

trial, more than 85% of that summary concerns the acts of, and the 

Archdiocese’s response to, priests other than Avery and Brennan. By any 

formulation, therefore, it is clear that the vast majority of evidence offered 

by the Commonwealth against Appellant concerned his handling of sexually 

abusive priests in cases not directly related to the offenses for which he was 

tried or, in some cases, the activities of sexually abusive priests who were 

predominately handled by Appellant’s predecessors. 

We recognize that our Supreme Court has suggested that a high 

volume of potentially prejudicial, other-acts evidence is not, by itself, 

grounds for excluding it. In Commonwealth v. Boczkowski, 846 A.2d 75 

(Pa. 2004), the appellant was convicted of murdering his wife, Maryann, by 

strangulation. The circumstances of Maryann’s death suggested that, after 

strangling her, the appellant had staged the scene to make it appear as if 

she had drowned in their hot tub. On appeal, the appellant argued that he 

was unduly prejudiced by the Commonwealth’s presentation of other-acts 

evidence concerning the suspicious death of his former wife, Elaine, who had 

____________________________________________

8 This latter figure does not include the trial court’s legal analysis concerning 

the admission of the ‘other acts’ evidence, which required an additional 49 

pages in its opinion. See TCO, at 132-180.
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been found dead in a bathtub just four years prior to the death of his current 

wife, under remarkably similar circumstances. 

The appellant in Boczkowski did not dispute that this evidence could 

be admitted for limited purposes (motive, lack of mistake, etc.) under Rule 

404(b)(2). Instead, he argued that the “sheer volume of the testimony 

concerning Elaine's death was ... an abuse of the trial court's discretion.” 

Boczkowski, 846 A.2d at 93. In this regard, the appellant highlighted that 

“‘twenty-one percent’ of the Commonwealth's witnesses testified exclusively 

about Elaine's death in North Carolina, while a number of the witnesses who 

testified regarding Maryann's murder also testified about Elaine's murder. 

[The a]ppellant calculate[ed] that ‘fifty-two percent’ of the Commonwealth's 

witnesses testified in whole or in part about Elaine's death.” Id. 

Our Supreme Court rejected this claim—not by disputing the assertion 

that a high volume could influence the balancing of probative value versus 

potential for prejudice of other-acts evidence—but by noting the focused 

nature of that evidence and the presence of cautionary instructions.9 

Notably, despite the high volume of that evidence and the high potential for 

prejudice, that evidence focused on a single prior bad act—the killing of the 

____________________________________________

9 The evidence had also conformed to a previous decision of the Superior 

Court addressing the Commonwealth’s interlocutory appeal from a pre-trial 

order that had precluded the Elaine-related evidence on the basis that it was 

not admissible to show lack of mistake in the Commonwealth’s case-in-chief. 

The trial court had initially ruled that evidence of lack of mistake was only 

admissible to rebut a defense that her death was accidental. 
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appellant’s previous wife—in virtually identical circumstances as the offense 

for which the appellant was being tried. Thus, while evidence of the 

appellant’s prior wife’s suspicious death may have been highly prejudicial in 

a general sense, both in that it qualitatively described the details of a prior 

suspicious death and quantitatively made up a substantial portion of the 

Commonwealth’s case, that prejudice was not unfair precisely because it was 

profoundly relevant to prove motive, absence of mistake, or lack of accident, 

given the substantial similarities between the two deaths. 

By contrast, in the instant case, the high volume of prejudicial otheracts evidence involved Appellant’s supervision of other priests with varying 

psychiatric diagnoses, priests who committed crimes or bad acts in a wide 

variety of different circumstances, against different types of victims and, in 

some cases, which did not even involve Appellant’s prior acts at all, but 

instead those of his predecessors. This was not a case like Boczkowski

where the jury was provided a significant volume of facts that constituted 

contextual details concerning a single prior bad act, and one which was 

nearly identical to the crime for which the appellant was being tried. 

Instead, there were numerous prior bad acts introduced in this case that 

varied greatly in their relevance to the purpose for which they were 

admitted. Thus, it is not just the volume of other-acts evidence that is 

notably greater than was at issue in Boczkowski, the other-acts evidence in 

this case was, by and large, not nearly as probative of or relevant to the 

Rule 404(b)(2) exceptions under which it was admitted. 
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The trial court indicates that any unfair prejudice in this case was 

adequately mitigated by the court’s cautionary instructions, and that the 

split verdict indicates that the jury was able to carefully consider the 

evidence for its proper purpose. The Commonwealth agrees, arguing that 

any undue prejudice was harmless because it was “eliminated by the court’s 

limiting instructions.” Commonwealth’s Brief, at 42. As proof of this, the 

Commonwealth directs our attention to the fact that Appellant was acquitted 

“of three of the four offenses charged[,]” id. at 43, an argument that 

dovetails with the trial court’s own analysis, see TCO, at 137-38. 

First, we reject the notion that the jury’s verdict, by itself, is 

particularly strong or useful evidence that the trial court’s instructions 

effectively eliminated all or most of the unfair prejudice that resulted from 

the admission of vast quantities of other-acts evidence. A different narrative 

could easily be constructed to suggest just the opposite conclusion: that the 

evidence of Appellant’s guilt was demonstrably weak by virtue of the three 

acquittals, and that the single conviction reflected the effect of the unduly 

prejudicial evidence—or that it reflected the jury’s intent to punish Appellant 

as a scapegoat for the policies of the Archdiocese, despite having concluded 

that his culpability for these specific offenses was not proven beyond a 

reasonable doubt. However, rather than adopting any of these narratives, it 

is preferable judicial policy to avoid such speculation. This Court is ill-suited 

to the task of reading the minds of twelve jurors so as to ascertain why they 

chose to acquit Appellant of some charges but not others, and it is beyond 
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our province to engage in such speculation in any event. Instead, our 

evaluation must center on whether the trial court abused its discretion when 

it was asked to determine whether “the probative value of the evidence 

outweighs its potential for unfair prejudice.” Pa.R.E. 404(b)(2) (emphasis 

added). 

The trial court cites Commonwealth v. Williams, 9 A.3d 613 (Pa. 

2010), to suggest that it may evaluate the jury verdict to assess the balance 

between the probative value and potential prejudice of the at-issue prioracts evidence. See TCO, at 137-138. Notably, the quoted language in the 

trial court’s opinion does not even appear in that case, although the 

Williams Court did opine on the topic of prejudice. Nevertheless, Williams

does not stand for the proposition that we may, on direct review, rely upon 

the jury verdict to determine whether jury instructions were sufficient to 

mitigate unfair prejudice resulting from the admission of copious amounts of 

other-acts evidence. Indeed, the Williams Court did not engage in the 

balancing test that is at issue with regard to the admission of other-acts 

evidence under Rule 404 at all, but instead dealt with the prejudice prong of 

ineffectiveness of counsel claim. The prejudice standard on direct review of

claims of evidentiary error is not as strict as that which is required for 

proving ineffectiveness claims on collateral review. As our Supreme Court 

has explained:

Derivative claims of ineffective assistance of counsel are 

analytically distinct from the defaulted direct review claims that 

were (or could have been) raised on direct appeal. 
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Commonwealth v. Collins, 585 Pa. 45, 888 A.2d 564, 572–73 

(2005). As noted, Strickland [v. Washington, 466 U.S. 668 

(1984),] requires a showing of actual prejudice, not the 

presumed prejudice arising from [United States v.] Cronic[, 

466 U.S. 648 (1984)], nor the harmless error standard that 

governs ordinary claims of trial court error on direct review, nor 

the presumption of harm arising on direct review [certain 

claims]. This Court has long recognized the distinction between 

Strickland prejudice and the harmless error standard applicable 

in the direct review context, and this distinction can be outcomedeterminative. See, e.g., Commonwealth v. Howard, 538 Pa. 

86, 645 A.2d 1300, 1307 (1994).

Commonwealth v. Reaves, 923 A.2d 1119, 1130 (Pa. 2007).

Here, we review the trial court’s evidentiary decision for its potential to 

cause unfair prejudice in relation to the probative value of that evidence, not 

for actual prejudice as is required to assess derivative claims on collateral 

review. In light of this distinction, the jury’s verdict tells us very little about 

whether it was able to dutifully sort through the barrage of other-acts 

evidence in accordance with the trial court’s cautionary instructions.

Second, we disagree that the trial court’s limiting/cautionary 

instructions eliminated the potential for unfair prejudice. The trial court 

indicates that it instructed the jury “on nine different occasions about the 

limited scope for which the ‘other acts’ evidence could be considered.” TCO, 

at 136. The court went on say: 

Each charge was the same or a very slight variation on what this 

Court stated on March 29, 2012:

Good morning, ladies and gentlemen. I'm going to give 

you this morning, and I will give you through the trial this 

same or similar instruction. It's called a cautionary 

charge. It just alerts you about how you should handle or 

accept certain evidence. You will hear evidence concerning 
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alleged improper behavior up to and included [sic] the 

alleged sexual abuse of children by priests other than what 

has been alleged as to Edward Avery and James Brennan. 

In some of these cases, Defendant Lynn handled these 

allegations personally and documented his actions and 

recommendations in memorandum — or I guess 

memoranda, since it's plural.

As regards [sic] to other cases, he reviewed documents 

pertaining to these allegations in files kept in the Secret 

Archives of the Archdiocese of Philadelphia. This so-called 

other-acts evidence is being admitted for limited purposes. 

The Commonwealth may introduce evidence relating to 

Defendant Lynn's handling of or knowledge about 

accusations made against priests other than Edward Avery 

and James Brennan for the following purposes:

1. To assist the jury in assessing motive, opportunity, 

intent, preparation, plan, knowledge or absence of mistake 

or accident.

2. To allow the jurors to understand the complete story so 

they can draw the proper inferences from the evidence.

3. To demonstrate that Defendant Lynn's actions in this 

case were part of a common plan, scheme and design.

4. To demonstrate the relationship between Defendant 

Lynn, other Archdiocese officials, and accused priests in 

order to allow the jury to determine whether Defendant 

Lynn participated in a conspiracy to endanger children 

supervised by Edward Avery and James Brennan.

Of course, it is for you and you alone, you the jurors, to 

determine whether you believe this evidence, and if you do 

believe it, whether you accept it for the purpose proffered 

or offered to you. You may give it such weight as in your 

judgment it deserves, but only for the limited purposes 

that I have just described for you. Defendant Monsignor 

Lynn is not on trial for committing or conspiring to commit 

any of the acts attributed to other priests other than what

is alleged as to Edward Avery and James Brennan, and is 

not on trial for endangering the welfare of any of the 

children allegedly abused or molested by priests other than 

Edward Avery and James Brennan. You may not consider 

the evidence of these other acts as a substitute for proof 
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that Defendant Monsignor Lynn committed the crime of 

endangering the welfare of children supervised by Edward 

Avery and James Brennan. 

You may not consider this evidence as proof that 

Defendant Monsignor Lynn has a bad character or any 

propensity to commit crimes. Remember that Defendant 

Monsignor Lynn is on trial here because he has been 

accused of endangering the welfare and conspiring with 

others to endanger the welfare of children that were 

supervised by Edward Avery and James Brennan, not for 

these other acts. So I just wanted you to be aware of that 

so that you can have it in the proper context. I will give 

you this repeatedly throughout the trial because a great 

deal of the evidence that you are hearing concerns these

other matters and not the actions as are alleged against 

Edward Avery and James Brennan. Thank you.

N.T. 3/29/2012 at 22-25.

TCO, at 136-37. 

We must assess the effect of these cautionary instructions in the 

context of this case. We begin with the presumption that a jury follows the 

curative instructions of the trial court. Commonwealth v. Hairston, 84 

A.3d 657, 666 (Pa. 2014) (“Jurors are presumed to follow the trial court's 

instructions.”). However, this presumption is not unassailable. Our 

Supreme Court has indicated that “when examining the potential for undue 

prejudice,” in the context of Rule 404, “a cautionary jury instruction may

ameliorate the prejudicial effect of the proffered evidence.” Id. (emphasis 

added). In the exceptional circumstances of this case, we conclude that this 

presumption has been overcome by the varied and often questionable 

probative value of the admitted other-acts evidence, its significant potential 
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for unfair prejudice, and, importantly, the vast quantity of other-acts 

evidence that the jury was asked to evaluate. 

In this regard, although the trial court issued some variation of the 

above instruction on multiple occasions, we do not believe the instruction 

carried the same weight that it would have carried in relation to more 

focused and less voluminous other-acts evidence. The other-acts evidence 

dominated Appellant’s trial to such a degree that we are unable to conclude 

that the jury could have dutifully followed the court’s instructions, which 

effectively demanded that the jury ignore the elephant in the room. The 

elephant being the tendency of the other-acts evidence to suggest that 

Appellant had the general propensity to coddle sexual predators based on 

facts not directly related to the crimes for which he was being tried. While 

the jury might reasonably be expected to follow such instructions in normal 

circumstances, the high volume of other-acts evidence involved in this case, 

coupled with is high potential for prejudice and minimal probative value, 

made such an expectation unreasonable. 

Neither the trial court nor the Commonwealth cite to any case where 

this presumption was applied in circumstances substantially similar to the 

instant case in terms of the quantity and quality of the at-issue other-acts 

evidence. Likewise, nowhere in our review of the numerous cases applying 

the aforementioned presumption have we found a case where the 

presumption was applied in such exceptional circumstances. As discussed 

above, in Boczkowski, the volume of prior-acts evidence was high, but the 
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scope of that evidence concerned only a single prior bad act—the 

defendant’s ostensible/alleged killing of his former wife. Our Supreme Court 

indicated in that case that “the court's repeated cautionary charges 

concerning the limited purpose of the evidence served to minimize any 

potential for unfair prejudice.” Boczkowski, 846 A.2d at 93. In the 

instant, case, however, the volume of other-acts evidence was much higher, 

and its scope spanned decades of prior bad acts committed within and by 

the Archdiocese, much of which had little to do with Appellant’s supervision 

of Avery and Brennan. The jury’s ability to apply the court’s instructions 

dutifully to such a high volume of other-acts evidence was likely to be 

significantly hampered. Thus, we reject the trial court’s conclusion, as well 

as the Commonwealth’s corresponding argument, that any unfair prejudice 

resulting from the admission of other-acts evidence in this case was 

ameliorated by the court’s cautionary instructions. 

In sum, we conclude that the probative value of the individual portions 

that made up the large quantity of other-acts evidence in this case differed 

greatly. A limited portion of that evidence was substantially relevant to, or 

probative of, permitted uses under Rule 404(b)(2), but far more was only 

marginally relevant for such purposes. The potential for this evidence to 

unfairly prejudice Appellant was high, both because it involved the sexually 

abusive acts of numerous priests committed against children over several 

decades, and because of the high volume of the evidence admitted. 

Therefore, we conclude that the probative value of that evidence, in toto, did 
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not outweigh its potential for unfair prejudice, and that this potential 

prejudice was not overcome by the trial court’s cautionary instructions. 

Consequently, we hold that the trial court abused its discretion in its 

application of Rule 404(b)(2). As our judgement requires that Appellant 

receive a new trial, we decline to address Appellant’s remaining claims of 

error.

Judgment of sentence vacated. Case remanded for a new trial. 

Jurisdiction relinquished.

Judge Musmanno joins this memorandum.

Judge Donohue files a concurring and dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/22/2015