J-E04003-14

2015 PA Super 138

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

JERMEEL OMAR TYSON

Appellee No. 1292 MDA 2013

Appeal from the Order June 18, 2013

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0005578-2012

BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E., 

PANELLA, J., DONOHUE, J., SHOGAN, J., MUNDY, J., OLSON, J., 

and OTT, J.

OPINION BY GANTMAN, P.J.: FILED JUNE 10, 2015

Appellant, the Commonwealth of Pennsylvania, appeals from the order 

entered in the Berks County Court of Common Pleas, which denied the 

Commonwealth’s motion in limine to introduce at trial Appellee Jermeel 

Omar Tyson’s prior conviction and granted Appellee’s corresponding motion 

in limine to exclude this evidence. We reverse and remand for further 

proceedings. 

The relevant facts and procedural history of this case are as follows. 

On July 31, 2010, G.B. left work because she felt ill after donating plasma. 

G.B. asked Appellee, whom she knew casually, to bring her some food. 

Appellee 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 

Appellee having vaginal intercourse with her. Appellee told G.B. she had 
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taken her pants off for him. G.B. claims she told Appellee 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 Appellee naked. G.B. 

claims she told Appellee she did not want to have sex with him and returned 

to bed. Shortly thereafter, G.B. claims, she woke up; and Appellee was 

again having vaginal intercourse with her. G.B. told Appellee to stop and 

asked him what he was doing. Appellee told G.B. her eyes were open the 

whole time. G.B. told Appellee to leave her apartment. G.B. then went to a 

hospital for treatment. 

The Commonwealth charged Appellee with rape, sexual assault, 

indecent assault, and aggravated indecent assault. On May 31, 2013, the 

Commonwealth filed a motion in limine, which sought to introduce evidence 

of Appellee’s 2001 conviction for rape in Delaware, pursuant to Pa.R.E. 

404(b).1 The Commonwealth’s motion in limine was premised on two 

theories: (1) Appellee’s prior rape conviction is admissible to show his rape 

and assault of G.B. was part of a common scheme or plan; and (2) the prior 

conviction is admissible to show Appellee did not “mistakenly” conclude G.B. 

“consented” to sexual intercourse with him. On June 3, 2013, Appellee filed 

____________________________________________

1 On July 16, 2000, Appellee was at a party at the home of T.B. Appellee 

was a friend of T.B.’s brother. T.B. drank alcohol at the party and went to 

sleep in her bedroom at approximately 5:00 a.m. She later awoke to find 

Appellee having vaginal intercourse with her. Appellee pled guilty to rape on 

June 11, 2001, and spent five years in prison. 
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a motion in limine seeking to preclude his prior rape conviction. 

Following a hearing, the trial court denied the Commonwealth’s motion 

in limine, granted Appellee’s motion in limine, and on June 18, 2013, 

declared Appellee’s prior conviction inadmissible. On July 18, 2013, the 

Commonwealth filed a timely notice of appeal.2 By memorandum decision 

on April 21, 2014, a panel of this Court (with one dissent) affirmed the trial 

court’s order of June 18, 2013. On July 3, 2014, this Court granted the 

Commonwealth’s application for en banc reargument and withdrew the prior 

memorandum decision. 

The Commonwealth raises one issue for en banc review:

DID THE [TRIAL] COURT ABUSE ITS DISCRETION IN 

DENYING THE COMMONWEALTH’S MOTION IN LIMINE TO 

INTRODUCE EVIDENCE OF [APPELLEE’S] PRIOR CRIME 

AND GRANTING [APPELLEE’S] MOTION IN LIMINE, WHERE 

SAID EVIDENCE IS ADMISSIBLE PURSUANT TO PA.R.E. 

404(B)?

(Commonwealth’s Brief at 4). 

In its sole issue, the Commonwealth argues the facts of the present 

case and the facts of Appellee’s prior rape conviction demonstrate that 

Appellee engaged in a pattern of non-consensual sexual intercourse with 

acquaintances who were in an unconscious or diminished state. The 

Commonwealth contends that in each case, Appellee deliberately took 

____________________________________________

2 The Commonwealth certified, pursuant to Pa.R.A.P. 311(d), that the court’s 

order would substantially handicap the prosecution. 
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advantage of the victim’s diminished state and inability to consent. The 

Commonwealth highlights numerous similarities between the two incidents: 

(1) the victims were the same race and similar in age; (2) both victims were 

casually acquainted with Appellee; (3) Appellee’s initial interaction with each 

victim was legitimate, where Appellee was invited into the victim’s home; 

(4) Appellee had vaginal intercourse with each victim in her bedroom; (5) 

both incidents involved vaginal intercourse with an alleged unconscious 

victim who woke up in the middle of the act; and (6) in each case, Appellee 

knew the victim was in a compromised state. The Commonwealth asserts 

the period between the two incidents is only five years, when we exclude the 

time Appellee spent in prison on the prior rape conviction, and the passage 

of five years’ time is outweighed by the similarities of the two acts. In light 

of these similarities, the Commonwealth claims Appellee’s prior conviction is 

admissible under the common plan or scheme exception to Rule 404, which 

generally prohibits evidence of prior crimes. 

The Commonwealth further argues Appellee’s prior conviction is 

admissible under the absence of mistake or accident exception, namely, to 

show Appellee made no mistake when he assessed G.B.’s ability to consent 

to sexual intercourse. The Commonwealth submits Appellee concedes 

identity will be a non-issue at trial, so the key issue for the factfinder is 

whether G.B. consented. The Commonwealth insists evidence of Appellee’s 

prior conviction is necessary to counter Appellee’s consent defense and show 
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that, as in the previous case, Appellee knowingly took advantage of an 

unconscious victim. For either the common plan or absence of mistake 

exceptions, the Commonwealth asserts evidence of Appellee’s prior 

conviction would not be unduly prejudicial. The Commonwealth stresses this 

highly probative evidence would aid the jury in its determination of 

Appellee’s state of mind when he twice initiated vaginal intercourse with 

G.B.; whereas the absence of this evidence would leave the jury to rely 

solely on G.B.’s testimony regarding the issue of consent. For all of these 

reasons, the Commonwealth concludes the trial court abused its discretion 

when it excluded evidence of Appellee’s prior conviction. We agree. 

“Admission of evidence is within the sound discretion of the trial court 

and will be reversed only upon a showing that the trial court clearly abused 

its discretion.” Commonwealth v. Drumheller, 570 Pa. 117, 135, 808 

A.2d 893, 904 (2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2284, 156 

L.Ed.2d 137 (2003) (quoting Commonwealth v. Stallworth, 566 Pa. 349, 

363, 781 A.2d 110, 117 (2001)); Commonwealth v. Collins, 70 A.3d 

1254, 1251 (Pa.Super. 2013). “An abuse of discretion is not merely an error 

of judgment, but is rather the overriding or misapplication of the law, or the 

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

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

Commonwealth v. Harris, 884 A.2d 920, 924 (Pa.Super. 2005), appeal 

denied, 593 Pa. 726, 928 A.2d 1289 (2007). 
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Relevance is the threshold for admissibility of evidence. 

Commonwealth v. Cook, 597 Pa. 572, 602, 952 A.2d 594, 612 (2008). 

Pennsylvania Rule of Evidence 401 provides as follows:

Rule 401. Test for Relevant 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 is relevant if it logically tends to establish a material 

fact in the case, tends to make a fact at issue more or less probable or 

supports a reasonable inference or presumption regarding a material fact.” 

Drumheller, supra at 135, 808 A.2d at 904. “All relevant evidence is 

admissible, except as otherwise provided by law. Evidence that is not 

relevant is not admissible.” Pa.R.E. 402. “The 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 jury, 

undue delay, wasting time, or needlessly presenting cumulative evidence.” 

Pa.R.E. 403. 

Pennsylvania Rule of Evidence 404(b) provides as follows:

Rule 404. Character Evidence; Crimes or Other Acts

* * *

(b) Crimes, Wrongs or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or 
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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.

* * *

Pa.R.E. 404(b)(1)-(2). “[E]vidence of prior crimes is not admissible for the 

sole purpose of demonstrating a criminal defendant’s propensity to commit 

crimes.” Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, 1283 

(Pa.Super. 2004). Nevertheless, “[e]vidence may be admissible in certain 

circumstances where it is relevant for some other legitimate purpose and not 

utilized solely to blacken the defendant’s character.” Id. Specifically, other 

crimes evidence is admissible if offered for a non-propensity purpose, such 

as proof of an actor’s knowledge, plan, motive, identity, or absence of 

mistake or accident. Commonwealth v. Chmiel, 585 Pa. 547, 889 A.2d 

501 (2005). When offered for a legitimate purpose, evidence of prior crimes 

is admissible if its probative value outweighs its potential for unfair 

prejudice. Commonwealth v. Hairston, 624 Pa. 143, 84 A.3d 657 (2014), 

cert. denied, ___ U.S. ___, 135 S.Ct. 164, 190 L.Ed.2d 118 (2014). 

When ruling upon the admissibility of evidence under the 

common plan exception, the trial court must first examine 

the details and surrounding circumstances of each criminal 

incident to assure that the evidence reveals criminal 

conduct which is distinctive and so nearly identical as to 
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become the signature of the same perpetrator. Relevant 

to such a finding will be the habits or patterns of action or 

conduct undertaken by the perpetrator to commit crime, 

as well as the time, place, and types of victims typically 

chosen by the perpetrator. Given this initial 

determination, the court is bound to engage in a careful 

balancing test to assure that the common plan evidence is 

not too remote in time to be probative. If the evidence 

reveals that the details of each criminal incident are nearly 

identical, the fact that the incidents are separated by a

lapse of time will not likely prevent the offer of the 

evidence unless the time lapse is excessive. Finally, the 

trial court must assure that the probative value of the 

evidence is not outweighed by its potential prejudicial 

impact upon the trier of fact. To do so, the court must 

balance the potential prejudicial impact of the evidence 

with such factors as the degree of similarity established 

between the incidents of criminal conduct, the 

Commonwealth’s need to present evidence under the 

common plan exception, and the ability of the trial court to 

caution the jury concerning the proper use of such 

evidence by them in their deliberations.

Commonwealth v. G.D.M., Sr., 926 A.2d 984, 987 (Pa.Super. 2007), 

appeal denied, 596 Pa. 715, 944 A.2d 756 (2008) (quoting Commonwealth 

v. Smith, 635 A.2d 1086, 1089 (Pa.Super. 1993)). 

Although “remoteness in time is a factor to be considered in 

determining the probative value of other crimes evidence under the theory 

of common scheme, plan or design, the importance of the time period is 

inversely proportional to the similarity of the crimes in question.” 

Commonwealth v. Aikens, 990 A.2d 1181, 1185 (Pa.Super. 2010), appeal 

denied, 607 Pa. 694, 4 A.3d 157 (2010) (holding evidence of defendant’s 

prior sexual assault was admissible under common scheme exception 

despite nearly ten-year gap between periods of abuse, where victims were of 
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similar age and both were daughters of defendant; defendant initiated 

contact with each victim during overnight visit in his apartment; defendant 

began sexual abuse by showing victims pornographic movies; and assaults 

occurred in bed at night). See also Commonwealth v. Luktisch, 680 

A.2d 877 (Pa.Super. 1996) (holding common scheme exception justified 

admission of testimony regarding defendant’s previous sexual assaults 

despite six-year lapse between periods of abuse, where three victims were 

nearly same age, victims were either daughter or step-daughter of 

defendant and lived with him when acts occurred; and pattern of 

molestation—from improper touching to oral sex to sexual intercourse—was 

highly similar with respect to two victims). 

Evidence of a prior crime may also be admitted to show a defendant’s 

actions were not the result of a mistake or accident, “where the manner and 

circumstances of two crimes are remarkably similar.” Commonwealth v. 

Kinard, 95 A.3d 279, 294-95 (Pa.Super. 2014). See Commonwealth v. 

Sherwood, 603 Pa. 92, 982 A.2d 483 (2009) (holding evidence of 

defendant’s prior physical assaults of child was admissible to show absence 

of mistake or accident in prosecution for intentional beating death of child); 

Commonwealth v. Boczkowski, 577 Pa. 421, 846 A.2d 75 (2004) (holding 

evidence of defendant’s murder of former wife was admissible to show 

absence of accident in prosecution for murder of defendant’s second wife, 

where both victims were found dead in bathtub or hot tub in highly similar 
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circumstances). 

Evidence of relevant prior crimes is admissible “if the probative value 

of the evidence outweighs its potential for unfair prejudice.” Kinard, supra

at 284. “‘Unfair prejudice’ means a tendency to suggest decision on an 

improper basis or to divert the jury’s attention away from its duty of 

weighing the evidence impartially.” Commonwealth v. Dillon, 592 Pa. 

351, 366, 925 A.2d 131, 141 (2007) (quoting Pa.R.E. 403 comment). 

Evidence will not be prohibited merely because it is 

harmful to the defendant. 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 and form part of the history 

and natural development of the events and offenses for 

which the defendant is charged. Moreover, we have 

upheld the admission of other crimes evidence, when 

relevant, even where the details of the other crime were 

extremely grotesque and highly prejudicial.

Id. at 367, 925 A.2d at 141. “Additionally, when examining the potential for 

undue prejudice, a cautionary jury instruction may ameliorate the prejudicial 

effect of the proffered evidence. ... Jurors are presumed to follow the trial 

court’s instructions.” Hairston, supra at ___, 84 A.3d at 666 (holding 

extraneous offense of arson was admissible under Rule 404(b) as res gestae

evidence in prosecution for murder; trial court’s instruction on how arson 

evidence should be considered minimized likelihood that arson evidence 

would inflame jury or cause it to convict defendant on improper basis). 

Instantly, the record reveals the following factual similarities between 

the present case and Appellee’s prior rape conviction. In each case, 
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Appellee was acquainted with the victim—a black female in her twenties—

and he was an invited guest in the victim’s home. Appellee was aware that 

each victim was in a weakened or compromised state. Each victim 

ultimately lost consciousness. In each case, the victim awoke in her 

bedroom in the early morning hours to find Appellee having vaginal 

intercourse with her. The evidence of Appellee’s prior rape passes the basic 

relevance threshold, as it tends to increase the probability that Appellee 

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

Drumheller, supra. The relevant details and surrounding circumstances of 

each incident further reveal criminal conduct that is sufficiently distinctive to 

establish Appellee engaged in a common plan or scheme. See G.D.M., Sr., 

supra. The factual overlap between the two incidents goes beyond the 

commission of crimes or conduct “of the same general class.” The evidence 

does not merely show Appellee sexually assaulted two different women or 

that Appellee’s actions are generically common to many sexual assault 

cases. To the contrary, the incidents reflect a clear pattern where Appellee 

was legitimately in each victim’s home; Appellee was cognizant of each 

victim’s compromised state; and Appellee had vaginal intercourse with each 

victim in her bedroom in the middle of the night while the victim was 

unconscious.3 

____________________________________________

3 To the extent differences exists between the two incidents, these 

(Footnote Continued Next Page)
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G.B.’s claim, that she again fell asleep and again awoke to find 

Appellee having non-consensual sex with her a second time, only reinforces 

the conclusion that Appellee engaged in a common scheme of nonconsensual intercourse with unconscious victims. The evidence of a second 

instance of non-consensual sex between Appellee and G.B. tends to show 

Appellee saw and seized yet another opportunity to have non-consensual 

vaginal intercourse with a female acquaintance whose unconscious state 

rendered her unable to consent or to resist verbally or physically. 

Additionally, Appellee’s dispute that G.B. was asleep, when Appellee initiated 

sexual intercourse with her, is an issue for the factfinder to determine at 

trial. The purpose of introducing Appellee’s prior conviction is to aid the jury 

in that determination and to counter Appellee’s anticipated defense of 

consent. Appellee should not be able to create a “difference” between the 

two incidents simply by disputing the Commonwealth’s proffered facts. We 

conclude the circumstances of each incident are sufficiently similar to satisfy 

(Footnote Continued) _______________________

differences concern details which are not essential to the alleged common 

scheme of Appellee. For example, Appellee was in T.B.’s home for a party 

because he was friends with T.B.’s brother, whereas G.B. invited Appellee 

into her home because she felt weak after donating plasma. The common 

scheme, however, does not require the sexual assault of women who 

became tired or weak specifically after donating plasma. The salient facts of 

each case are that Appellee was allowed into the home of an acquaintance, 

and Appellee knew each victim was in a compromised state. After each 

victim lost consciousness in the early morning hours, Appellee had vaginal 

intercourse with each victim in essentially the same manner. The common 

scheme exception does not require that the two scenarios be identical in 

every respect. 
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the common plan or scheme exception to Rule 404. 

We further conclude the evidence of Appellee’s prior rape conviction is 

not too remote in time to negate its probative value. The Commonwealth is 

correct to state that Appellee’s time spent in prison must be excluded in the 

calculation of how much time has elapsed since the prior crime. See 

Commonwealth v. Rush, 538 Pa. 104, 646 A.2d 557 (1994) (excluding 

defendant’s period of incarceration from relevant time period for remoteness 

analysis, where eight years separated commission of crimes in question); 

Commonwealth v. Brien, 836 A.2d 966 (Pa.Super. 2003), appeal denied, 

577 Pa. 695, 836 A.2d 966 (2004) (holding defendant’s prior ten-year old 

convictions were not too remote in time, and defendant was paroled five 

years before the current offense). Appellee committed the prior offense ten 

years before the current incident, but Appellee was incarcerated for five of 

those years for the prior offense. Therefore, the relevant look-back period is 

five years for purposes of the remoteness analysis. See id. This Court has 

held evidence admissible under the common scheme exception in the 

context of even longer time lapses. See Aikens, supra (holding ten-year 

lapse was not excessive); Luktisch, supra (holding six-year lapse was not 

excessive). Additionally, the similarities of the two incidents render the fiveyear time gap even less important. See Aikens, supra. The record does 

not support a finding of an excessive lapse of time between the incidents, 

which is, in any case, only one factor in the common scheme analysis, but 
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not the dispositive factor. 

Additionally, the probative value of Appellee’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 Appellee; the 

question is whether evidence of Appellee’s prior conviction would be unduly

prejudicial. See Dillon, supra. The substantial similarity between the two 

incidents gives the evidence of Appellee’s previous crime considerable 

probative value. In light of the important similarities, the nature of 

Appellee’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 appellant’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 Appellee’s bad character or criminal tendencies. See id.; Hairston, 

supra. Jurors are presumed to follow the trial court’s instructions. See id. 

Importantly, one factor in the “undue prejudice” analysis—the 

Commonwealth’s need to present evidence under the common plan 

exception—weighs heavily in favor of the Commonwealth. Identity is not an 

issue in this case, as Appellee acknowledges he had sexual intercourse with 
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G.B. on the day in question. The only issue is consent. If evidence of 

Appellee’s prior conviction is excluded, the Commonwealth must rely solely 

on the uncorroborated testimony of G.B. to counter Appellee’s defense of 

consent to vaginal intercourse. Thus, the Commonwealth has a significant 

need for the prior crime evidence to prove Appellee had non-consensual sex 

with G.B. See G.D.M., Sr., supra. See also Commonwealth v. Gordon, 

543 Pa. 513, 673 A.2d 866 (1996) (holding evidence of appellant’s similar 

prior sexual assaults was not unduly prejudicial where Commonwealth was 

required to prove non-consensual touching occurred; evidence was 

necessary for prosecution of case, where uncorroborated testimony of victim 

might lead jury to determine there was reasonable doubt as to whether 

appellant committed crime). Given the substantial similarity between the 

current incident and Appellee’s prior crime, and the importance of the 

common scheme evidence to the Commonwealth’s case, we conclude the 

trial court abused its discretion when it found Appellee’s prior conviction was 

inadmissible under the common scheme exception to Rule 404. 

Likewise, the trial court should have declared the evidence of 

Appellee’s prior rape conviction admissible under the absence of mistake or 

accident exception to Rule 404.4 Appellee disputes G.B.’s account that she 

____________________________________________

4

In his motion in limine, Appellee completely misconstrued and failed to 

respond substantively to the Commonwealth’s argument regarding the 

exception to Rule 404 for absence of mistake or accident. Appellee stated: 

(Footnote Continued Next Page)
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was asleep when Appellee initiated sexual intercourse with her—Appellee 

maintains he thought G.B. consented to the act. Given the relevant 

similarities between the two incidents, evidence of Appellee’s prior rape 

would tend to prove he did not “mistakenly believe” G.B. was awake or gave 

her consent. Appellee was invited into G.B.’s home for another reason, 

Appellee knew G.B. was in a compromised state, and G.B. awoke to find 

Appellee having vaginal intercourse with her. Appellee’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 non-consensual sex 

with the victim while the victim was unconscious. The prior conviction would 

tend to prove Appellee 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 Appellee recognized or should have recognized 

that, as with T.B., G.B.’s physical condition rendered her unable to consent. 

(Footnote Continued) _______________________

“There is no question in this case as to the identity of [Appellee] and the 

only reason to introduce the evidence of the prior conviction would be to 

prove a common plan, despite the limited similarities between the two 

instances.” (Appellee’s Motion in Limine, filed 6/3/13, at 3; R.R. at 27a). 

The Commonwealth, however, did not try to introduce evidence of Appellee’s 

prior conviction, under the absence of mistake or accident exception, to 

prove identity but to show Appellee made no mistake or accident when he 

evaluated G.B.’s purported “consent.” Appellee also failed to address this 

argument at the hearing on the motions in limine. Therefore, Appellee 

arguably waived any objection to admission of his prior conviction under that 

exception to Rule 404. See Pa.R.A.P. 302(a) (stating issues not raised in 

trial court are waived and cannot be raised for first time on appeal). 
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The jury must have a chance to decide if Appellee, 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. 

As with the common scheme exception, certain 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 Appellee 

mistakenly believed G.B. consented to sexual intercourse. The evidence of 

Appellee’s prior crime is highly probative of the fact that Appellee could not 

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

Rather, the evidence of the prior conviction tends to prove Appellee 

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. See Kinard, supra. Given the established similarity between the 

incidents, we conclude Appellee’s prior conviction is highly probative on the 

issue of consent, but not so remote in time or unduly prejudicial as to bar its 

admission under the absence of mistake or accident exception to Rule 404. 

See Dillon, supra; Aikens, supra. Our previous analysis of “undue 

prejudice” and remoteness with respect to the common plan or scheme 

exception is equally applicable in the context of the absence of mistake or 

accident exception. 
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Based on the foregoing, we hold evidence of Appellee’s prior conviction 

is admissible under both the common plan or scheme and the absence of 

mistake or accident exceptions to Rule 404. Thus, we reverse the trial 

court’s order excluding this evidence. 

Order reversed; case remanded for further proceedings. Jurisdiction is 

relinquished. 

Ford Elliott, P.J.E., Panella, Shogan, Mundy and Olson, JJ. join the 

opinion.

Donohue, J. files a dissenting opinion in which Bender, P.J.E. and Ott, 

J. join.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/10/2015