J-S10040-15

_________________________

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

JUSTIN CORLISS

Appellee No. 2091 EDA 2014

Appeal from the Suppression Order June 17, 2014

In the Court of Common Pleas of Monroe County

Criminal Division at No(s): CP-45-CR-0001749-2013

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

JUSTIN CORLISS

Appellee No. 2105 EDA 2014

Appeal from the Order June 17, 2014

In the Court of Common Pleas of Monroe County

Criminal Division at No(s): CP-45-CR-0002173-2013

BEFORE: GANTMAN, P.J., STABILE, J., and PLATT, J.* 

MEMORANDUM BY GANTMAN, P.J.: FILED JULY 14, 2015

Appellant, the Commonwealth of Pennsylvania, appeals from the order 

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

Commonwealth’s motion in limine to admit certain evidence at the trials of 

Appellee, Justin Corliss. We reverse and remand for further proceedings. 
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The relevant facts and procedural history of this appeal are as follows. 

Appellee operated a pet store in Monroe County. In 1993, Appellee 

commenced a romantic relationship with his coworker, K.V. Shortly 

thereafter, Appellee moved into the residence K.V. shared with her minor 

daughter, R.V. In 1995, when R.V. was approximately nine years’ old, 

Appellee began to molest R.V. At first, Appellee would tickle R.V. when they 

played together. Appellee’s behavior escalated, however, and he began 

placing his hands down R.V.’s pants. Appellee digitally penetrated R.V. on 

multiple occasions between 1995 and 1997. The abuse occurred at K.V.’s 

residence, often while K.V. was in another room. On one occasion, Appellee 

inappropriately touched R.V. during a car trip to New York. The molestation 

continued until 1997, when Appellee moved out of K.V.’s residence. R.V. did 

not immediately report the abuse. 

In 1996, fourteen-year-old D.G. began to work at Appellee’s pet store. 

D.G.’s father was a regular customer at the pet store, and Appellee had 

known D.G. since she was eleven years’ old. After D.G. started working at 

the pet store, Appellee would tickle her. Appellee’s behavior escalated, and 

he began placing his hands down D.G.’s pants. Eventually, Appellee and 

D.G. engaged in sexual intercourse. Appellee also performed oral sex on 

D.G. on multiple occasions. 

The abuse occurred at the pet store during regular business hours. On 

two occasions, D.G.’s twelve-year-old friend witnessed the sexual activity. 
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Appellee also fondled D.G. during car trips to New York. D.G. testified that 

Appellee took her on these trips “almost every single Monday” to pick up 

supplies for the pet store. (N.T. Hearing, 3/18/14, at 31). In addition to the 

liaisons at work, Appellee molested D.G. at K.V.’s residence at least once. 

In 1997, D.G.’s mother learned about the abuse and immediately informed 

police. 

At No. 743 of 1997, the Commonwealth charged Appellee with multiple 

offenses related to the molestation of D.G. Following a trial in 1998, a jury 

convicted Appellee of two (2) counts of statutory sexual assault and one (1) 

count each of aggravated indecent assault, indecent assault, and corruption 

of minors. On August 20, 1998, the court sentenced Appellee to an 

aggregate term of four (4) to ten (10) years’ imprisonment. This Court 

affirmed the judgment of sentence on November 30, 1999. See 

Commonwealth v. Corliss, 750 A.2d 366 (Pa.Super. 1999) (unpublished 

memorandum). 

Prior to the start of the 1998 trial, Appellee met C.T. at the pet store. 

Appellee and C.T. married, and C.T. became pregnant before Appellee’s 

sentencing hearing. C.T. gave birth to Appellee’s daughter, C.C., in 1999 

while Appellee was incarcerated. Appellee remained incarcerated until 2008. 

Upon his release, Appellee returned to live with C.T. and C.C. C.T. had no 

concerns about Appellee being around C.C., because Appellee had convinced 

C.T. that he was actually innocent of the charges pertaining to D.G. 
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When Appellee would play with C.C., C.T. noticed that Appellee tickled 

the child and scratched the child’s back. The tickling started to bother C.C., 

and she asked Appellee not to touch her, but C.T. did not intervene. 

Appellee’s relationship with C.T. ended in 2010, after C.T. discovered that 

Appellee was having an affair with another teenager. In 2013, C.C. 

informed C.T. that Appellee had molested her. C.C. claimed that Appellee 

would put his hands down her pants and touch her vagina, exposed his penis 

to C.C., and attempted to force the child to perform oral sex on him. 

Police arrested Appellee for the offenses against C.C. in July 2013. 

The media reported on Appellee’s arrest, and R.V. saw the coverage. R.V. 

decided to contact police and inform them of the abuse she suffered from 

1995 until 1997. At No. 1749 of 2013, the Commonwealth charged Appellee 

with sex offenses committed against C.C. At No. 2173 of 2013, the 

Commonwealth charged Appellee with sex offenses committed against R.V.1 

On September 24, 2013, the Commonwealth informed Appellee that Nos. 

1749 and 2173 of 2013 would be joined for trial. Appellee filed counseled 

pretrial motions on October 3, 2013, including a motion to sever the cases. 

Ultimately, the court granted Appellee’s motion to sever the cases for trial. 

On November 15, 2013, the Commonwealth filed notice of its intent to 

____________________________________________

1 At No. 1748 of 2013, the Commonwealth also charged Appellee with 

offenses related to his failure to register with state police pursuant to 

Megan’s Law. The matters at No. 1748 of 2013 are not at issue in this 

appeal. 
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introduce “other bad acts” evidence, pursuant to Pa.R.E. 404(b). 

Specifically, the Commonwealth sought to introduce evidence of the 

molestation of C.C. at trial for the offenses against R.V. Similarly, the 

Commonwealth sought to introduce evidence of the molestation of R.V. at 

trial for the offenses against C.C. The Commonwealth also sought to 

introduce evidence of the molestation of D.G. at both trials. On February 

24, 2014, the Commonwealth filed a motion in limine, asking the court to 

allow the admission of the Rule 404(b) evidence at Appellee’s trials.2 The 

court conducted a hearing on March 18, 2014. At that time, the court 

received testimony from K.V. (victim R.V.’s mother), D.G. (prior victim), and 

C.T. (victim C.C.’s mother). 

____________________________________________

2 Before the parties litigated the Commonwealth’s motion in limine, Appellee 

requested to proceed pro se. On January 15, 2014, the court conducted an 

oral colloquy to determine whether Appellee’s waiver of counsel was 

knowing, voluntary, and intelligent. See Pa.R.Crim.P. 121 (stating 

defendant can waive right to trial counsel; to ensure defendant’s waiver is 

knowing, voluntary, and intelligent, court must confirm defendant 

understands right to be represented by counsel, right to free counsel if 

indigent, nature and elements of charges, permissible range of sentences 

and/or fines, defendant is bound by all rules of procedure, and defendant 

faces waiver of defenses, rights, and challenges to certain errors). Following 

the colloquy, the court permitted Appellee to proceed pro se. The court also 

provided Appellee with standby counsel. Appellee is pro se on appeal. To 

avoid an appealable issue arising from subsequent proceedings, however, 

the trial court must again colloquy Appellee to confirm his continued waiver 

of counsel, regardless of Appellee’s prior waiver or experience with the 

criminal justice system. See generally Commonwealth v. McDonough, 

571 Pa. 232, 812 A.2d 504 (2002) and Commonwealth v. Houtz, 856 A.2d 

119 (Pa.Super. 2004) (explaining and modifying Commonwealth v. 

Payson, 723 A.2d 695 (Pa.Super. 1999)). 
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On June 17, 2014, the court entered an order and opinion denying the 

Commonwealth’s motion in limine. The court found the Commonwealth’s 

other bad acts evidence was relevant to the pending cases at Nos. 1749 and 

2173 of 2013. Further, the court determined the evidence was probative of 

a common scheme, plan, or design in the pending cases, and the evidence 

was not too remote in time. Nevertheless, the court concluded the probative 

value of the evidence did not outweigh its potential for undue prejudice. On 

this basis, the court denied the Commonwealth’s motion in limine.

3

 

The Commonwealth timely filed notices of appeal at Nos. 1749 and 

2173 of 2013 on July 16, 2014.4 On July 17, 2014, the court ordered the 

Commonwealth to file concise statements of errors complained of on appeal, 

pursuant to Pa.R.A.P. 1925(b). The Commonwealth timely filed Rule 

1925(b) statements on July 23, 2014. The Commonwealth subsequently 

filed an application to consolidate the appeals, which this Court granted on 

November 17, 2014. 

____________________________________________

3 As part of its order denying the Commonwealth’s motion in limine, the 

court also ruled that the Commonwealth could not introduce other bad acts 

evidence at No. 1748 of 2013, in the Commonwealth’s prosecution of 

Appellee for failing to register under Megan’s Law. The Commonwealth does 

not challenge this aspect of the court’s order. 

4

Pursuant to Pa.R.A.P. 311(d), the Commonwealth certified in good faith in 

its notices of appeal that the order denying its motion in limine substantially 

handicapped the prosecution. Accordingly, this appeal is properly before us 

for review. See Commonwealth v. Cosnek, 575 Pa. 411, 836 A.2d 871 

(2003) (stating Rule 311(d) applies to pretrial ruling that results in 

suppression, preclusion or exclusion of Commonwealth’s evidence). 
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The Commonwealth raises two issues for our review: 

DID THE TRIAL COURT ABUSE ITS DISCRETION IN 

PROHIBITING THE COMMONWEALTH FROM INTRODUCING 

EVIDENCE OF [APPELLEE’S] BAD ACTS BY CONCLUDING 

THAT THE PROBATIVE VALUE DID NOT OUTWEIGH THE 

PREJUDICIAL EFFECT, AFTER CONCLUDING THE EVIDENCE 

WAS RELEVANT AND ADMISSIBLE UNDER THE COMMON 

SCHEME, PLAN, OR DESIGN EXCEPTION TO PA.R.E. 

404(b)? 

DID THE TRIAL COURT ABUSE ITS DISCRETION IN 

PROHIBITING THE COMMONWEALTH FROM INTRODUCING 

EVIDENCE OF [APPELLEE’S] BAD ACTS UNDER THE RES 

GESTAE EXCEPTION TO PA.R.E. 404(b)[?] 

(Commonwealth’s Brief at 5). 

“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)). “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). 

In its first issue, the Commonwealth asserts the trial court denied the 

motion in limine based upon the court’s mistaken belief that the 
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Commonwealth does not need evidence of Appellee’s other bad acts to prove 

that Appellee committed the offenses at issue in Nos. 1749 and 2173 of 

2013. The Commonwealth emphasizes it has no physical evidence to 

corroborate the testimony of victims, C.C. or R.V. Although the 

uncorroborated testimony of a victim is enough to convict, the 

Commonwealth anticipates Appellee will attack the victims’ credibility with 

their failure to make prompt complaints against him. The Commonwealth 

insists testimony against Appellee from multiple victims in each case would 

check Appellee’s challenge about the lack of prompt complaints; thus, 

evidence from the other victims is probative and necessary to the 

Commonwealth’s case. The Commonwealth also contends: 

[Appellee] denies that the touching occurred, and since the 

uncorroborated testimony of the alleged victim[s] in 

[these] case[s] might reasonably lead a jury to determine 

that there was a reasonable doubt as to whether 

[Appellee] committed the crime[s] charged, it is fair to 

conclude that the other crimes evidence is necessary for 

the prosecution of the case. To hold otherwise would 

effectively nullify Rule 404(b) and make it virtually 

impossible to introduce any bad act evidence in a “he said, 

she said” sexual assault case. 

(Commonwealth’s Brief at 21). The Commonwealth concludes the court 

should have granted the motion in limine and allowed the Commonwealth to 

introduce its Rule 404(b) evidence during both trials, at Nos. 1749 and 2173 

of 2013. We agree. 

Relevance is the threshold for admissibility of evidence. 

Commonwealth v. Cook, 597 Pa. 572, 602, 952 A.2d 594, 612 (2008). 
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Admissibility depends on relevance and probative value. 

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 (quoting Stallworth, supra at 

363, 781 A.2d at 117-18). “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 governs the admissibility of other 

bad acts evidence 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 

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. 

(3) Notice in a Criminal Case. In a criminal case the 

prosecutor must provide reasonable notice in advance of 

trial, or during trial if the court excuses pretrial notice on 

good cause shown, of the general nature of any such 
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evidence the prosecutor intends to introduce at trial. 

Comment:

* * *

Pa.R.E. 404(b)(1) is identical to F.R.E. 404(b)(1). It 

prohibits the use of evidence of other crimes wrongs or 

acts to prove a person’s character. 

Pa.R.E. 404(b)(2), like F.R.E. 404(b)(2), contains a 

non-exhaustive list of purposes, other than proving 

character, for which a person’s other crimes wrongs or 

acts may be admissible. But it differs in several 

aspects. First, Pa.R.E. 404(b)(2) requires that the 

probative value of the evidence must outweigh its 

potential for prejudice. When weighing the potential for 

prejudice of evidence of other crimes, wrongs, or acts, 

the trial court may consider whether and how much 

such potential for prejudice can be reduced by 

cautionary instructions. See Commonwealth v. 

LaCava, 542 Pa. 160, 666 A.2d 221 (1995). When 

evidence is admitted for this purpose, the party against 

whom it is offered is entitled, upon request, to a limiting 

instruction. See Commonwealth v. Hutchinson, 571 

Pa. 45, 811 A.2d 556 (2002). Second, the federal rule 

requires the defendant in a criminal case to make a 

request for notice of the prosecutor’s intent to offer 

evidence of other crimes, wrongs or acts. This issue is 

covered in Pa.R.E. 404(b)(3) which is consistent with 

prior Pennsylvania practice in that the requirement that 

the prosecutor give notice is not dependent upon a 

request by the defendant. 

Pa.R.E. 404(b)(1)-(3) and Comment. Thus, Rule 404(b) permits the 

admission of crimes or other acts evidence under certain instances. 

Commonwealth v. Russell, 938 A.2d 1082, 1092 (Pa.Super. 2007). 

Further, Rule 404(b) “is not limited to evidence of crimes that have been 

proven beyond a reasonable doubt in court. It encompasses both prior 
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crimes and prior wrongs and acts, the latter of which, by their nature, often 

lack ‘definitive proof.’” Commonwealth v. Ardinger, 839 A.2d 1143, 1145 

(Pa.Super. 2003) (quoting Commonwealth v. Lockcuff, 813 A.2d 857, 861 

(Pa.Super. 2002), appeal denied, 573 Pa. 689, 825 A.2d 638 (2003)). 

“[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), cert. denied, 549 U.S. 848, 127 S.Ct. 101, 166 L.Ed.2d 82 

(2006). When offered for a legitimate purpose, other acts evidence 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). 

“The particular prejudice that Rule 404(b)(3) seeks to prevent is the 

misuse of the other-offense evidence−specifically, that jurors might convict 

a defendant because they perceive the defendant has a bad character or 

propensity to commit crimes.” Commonwealth v. Cascardo, 981 A.2d 
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245, 251 (Pa.Super. 2009), appeal denied, 608 Pa. 652, 12 A.3d 750 

(2010). See also Pa.R.E. 403 Comment (stating: “‘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”). 

Additionally, when weighing the potential for prejudice, a 

trial court may consider how a cautionary jury instruction 

might ameliorate the prejudicial effect of the proffered 

evidence. 

However, evidence will not be prohibited merely because it 

is harmful to the defendant. Exclusion is limited to 

evidence so prejudicial that it would inflame the jury to 

make a decision based upon something other than the 

legal propositions relevant to the case. 

Commonwealth v. Page, 965 A.2d 1212, 1220 (Pa.Super. 2009), appeal 

denied, 621 Pa. 665, 74 A.3d 125 (2013) (internal citations and quotation 

marks omitted). 

A common plan, scheme, or design may be relevant to establish any 

element of a crime. Commonwealth v. Einhorn, 911 A.2d 960 (Pa.Super. 

2006), appeal denied, 591 Pa. 723, 920 A.2d 831 (2007). 

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 

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 
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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. Tyson, 2015 PA Super 138, 7-8 (filed June 10, 2015) 

(en banc) (quoting Commonwealth v. G.D.M., Sr., 926 A.2d 984, 987 

(Pa.Super. 2007), appeal denied, 596 Pa. 715, 944 A.2d 756 (2008)). 

“While remoteness in time is a factor to be considered in determining 

the probative value of...evidence under this theory, the importance of the 

time period is inversely proportional to the similarity of the [acts] in 

question.” Commonwealth v. O’Brien, 836 A.2d 966, 971 (Pa.Super. 

2003), appeal denied, 577 Pa. 695, 845 A.2d 817 (2004). 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). 
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Instantly, the trial court issued a lengthy opinion with its order denying 

the Commonwealth’s motion in limine. In its opinion, the court first 

determined that the Commonwealth’s other bad acts evidence was relevant: 

In case [No. 1749 of 2013], [Appellee] is charged with 

various sex offenses against C.C. that occurred in 2009 

and/or 2010. The evidence sought to be introduced by the 

Commonwealth is testimony of another victim, who was a 

minor at the time, as to [Appellee’s] alleged sexual abuse 

of her. This evidence tends to make the fact that 

[Appellee] committed a similar crime more probable. If 

the Commonwealth’s allegations in the present case are 

accepted as true, the evidence of the incidents that 

occurred in 1995-1997 as to R.V. (charged in case [No. 

2173 of 2013]) when she was 9-11 years’ old would be 

relevant in demonstrating [Appellee’s]...common scheme, 

plan or design to sexually assault young girls.... This is 

also true of the conviction in [No. 743 of 1997] where the 

victim was sexually assaulted by [Appellee] when she was 

14 and [Appellee] had contact with her starting when she 

was 11 years’ old. Accordingly, we hold that the bad acts 

involving incidents of sexual abuse by [Appellee]...are 

relevant. 

(See Trial Court Opinion, filed June 17, 2014, at 6.) The court also found 

the evidence was probative of a common scheme, plan or design in the 

pending cases: 

The factual similarities of the allegations involving R.V. 

[(No. 2173 of 2013)], D.G. [(No. 743 of 1997)], and C.C. 

[(No. 1749 of 2013)] are somewhat convincing. The 

similarities are that all of the charges in each of these 

three matters involve [Appellee] sexually assaulting young 

girls. All of the victims share similar personal 

characteristics. Each girl was white, between the ages of 9 

and 14, and each girl was in a close family relationship or 

in a position of trust with [Appellee]. For instance, C.C. 

and R.V. were the daughters of women [Appellee] lived 

with and he lived with the victims too. D.G. came into 

[Appellee’s] store as a customer with her family, and 
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[Appellee] quickly befriended her.2 In the two pending 

sexual assault cases, [Appellee] began a relationship with 

the victims’ mothers, moved in with them, and soon after, 

began sexually assaulting them.3 In the case of D.G., for 

which [Appellee] was convicted, he maintained a very 

close relationship with D.G. and told her he loved her. In 

all three cases, [Appellee] was in a position of trust over 

the victims and he continued assaulting them until he 

moved out, or in the case of D.G., was arrested by the 

police. 

2 We note that D.G. was 14 when [Appellee] had oral 

and vaginal intercourse with her, but [Appellee] 

started touching and tickling her when she was as 

young as 11 and 12 years old, and putting his hand 

inside her clothes when she was 12. 

3 We note [Appellee] initially moved in with C.C.’s 

mother after leaving R.V.’s mother’s house, but C.C. 

was not yet born. But ten years later, upon 

[Appellee’s] release from prison, he moved back in 

with C.C.’s mother and then allegedly began 

assaulting C.C. soon thereafter. 

[Appellee] met R.V.’s and C.C.’s mothers through work, 

and he met D.G. at his own store. [Appellee] began 

touching all three girls by tickling them. In all three 

matters, it progressed to placing his hands under their 

clothes. The touching continued until he eventually 

touched their vaginas. [Appellee] eventually had vaginal 

intercourse with one victim. In all three cases, the order 

of progression was the same; [Appellee] just progressed 

further in some cases. 

In R.V. and D.G.’s case, [Appellee] drove the victims with 

him to New York to obtain pet supplies for his store, and 

during the trips, he sexually assaulted the girls. In the 

case of both R.V. and C.C., the incidents took place in their 

home, often while the victims’ mothers were present in 

another room. [Appellee] had sexual encounters with D.G. 

in his store during business hours when anyone could walk 

into the store. On at least one occasion, [Appellee] had 

sex with D.G. while a friend of D.G. was present and 

watched. On another occasion, [Appellee] took D.G. to 
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R.V.’s house, where he was living at the time, and had sex 

with her there. Anyone could have come home at that 

time. This degree of similarity is an important factor in 

determining the admissibility of other crimes or acts as 

relevant to show a common scheme or plan. 

(Id. at 20-21). 

Nevertheless, the court concluded the probative value of the evidence 

did not outweigh its potential for undue prejudice. The court emphasized, 

“[T]he Commonwealth does not need evidence of the other two cases to 

prove the facts in each case.” (Id. at 30). Further, the court insisted: 

[The admission of] evidence of the matters involving R.V. 

and the 1998 conviction into the case involving C.C., and 

vice versa, would inflame a jury into declaring guilt based 

upon the other allegations. A prior conviction is extremely 

prejudicial and rarely allowed as evidence in any criminal 

case due to the prejudicial effect on a jury. Specifically, in 

this matter, [Appellee’s] prior conviction[s] [were] for 

statutory sexual assault, aggravated indecent assault, 

indecent assault, and corruption of minors in a matter 

involving a 14-year-old victim. [Appellee] ultimately 

served ten years for the offense[s]. Evidence of [these] 

conviction[s], events surrounding the conviction[s], and 

the resulting sentence would severely prejudice the jury. 

The jury could certainly convict on the theory that if he did 

it before, he could do it again. A cautionary instruction 

would have little effect on a jury due to this evidence. 

(Id. at 31). 

Here, the trial court ignored the dearth of physical evidence to support 

the victims’ accounts of the molestation. Likewise, the court does not 

mention Appellee’s repeated denials of the allegations against him. Thus, 

the uncorroborated testimony of each alleged victim could lead a jury to 

reasonable doubt on whether Appellee committed the offenses against that 
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victim. Under these circumstances, the other bad acts evidence is necessary 

for the Commonwealth’s prosecutions. See Commonwealth v. Gordon, 

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

convictions for indecent assault was not unduly prejudicial in prosecution for 

another indecent assault; evidence was relevant to prove, inter alia, 

common scheme or plan, and evidence was necessary for prosecution of 

case since defendant denied nonconsensual touching of victim occurred, and 

victim’s testimony was uncorroborated). See also Commonwealth v. 

Aikens, 990 A.2d 1181 (Pa.Super. 2010), appeal denied, 607 Pa. 694, 4 

A.3d 157 (2010) (holding evidence of defendant’s prior sexual abuse of his 

daughter was admissible to show common scheme, design, or plan in 

prosecution for corruption of minor, endangering welfare of child, and 

indecent assault; both victims were defendant’s biological daughters, both 

victims were of similar age when abuse occurred, defendant initiated contact 

with both victims during overnight visits to his apartment, and defendant 

showed pornographic movie to both victims); O’Brien, supra (holding 

evidence of defendant’s prior sexual assaults of children was admissible to 

show common scheme, plan or design in prosecution for sexual assault of 

minor; all charges stemmed from defendant’s sexual assaults on young 

boys, all victims shared similar personal characteristics, crimes were not too 

remote in time, and probative value of other crimes evidence outweighed 

prejudicial effect). We conclude the court erred in denying the 
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Commonwealth’s motion in limine. Based upon the foregoing, we reverse 

that portion of the order denying the Commonwealth’s motion in limine to 

admit other bad acts evidence at Nos. 1749 and 2173 of 2013, and we 

remand for further proceedings.5, 6 

Order reversed; case remanded for further proceedings. Jurisdiction is 

relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/14/2015

____________________________________________

5 Due to our resolution of the Commonwealth’s first issue, we need not 

address the second claim raised on appeal. 

6

In August 2014, Appellee filed two pro se motions to dismiss the 

Commonwealth’s appeals for lack of jurisdiction. On September 30, 2014, 

this Court denied Appellee’s motions without prejudice to Appellee’s right to 

raise identical issues before the merits panel. Appellee’s brief on appeal 

again raises his challenges to subject matter jurisdiction. Specifically, 

Appellee alleges certain deficiencies with his preliminary hearing as well as 

violations of the statutes of limitations. The certified record reveals Appellee 

raised these arguments with the trial court, which denied relief. The court 

also denied Appellee’s pro se motion to certify interlocutory order for appeal, 

where Appellee sought appellate review of the same claims he now attempts 

to raise in this appeal. On this record, we deny Appellee’s pro se motions to 

dismiss. See Pa.R.A.P. 341 (explaining appeal may be taken from final 

order; final order is any order that disposes of all claims and parties, is 

expressly defined as final order by statute, or is entered as final order 

pursuant to Rule 341(c)).