J-A33006-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

D.R.L.

Appellant No. 399 WDA 2016

Appeal from the Judgment of Sentence January 26, 2016

In the Court of Common Pleas of Erie County

Criminal Division at No(s): CP-25-CR-0002775-2014

BEFORE: LAZARUS, J., SOLANO, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 17, 2017

D.R.L. appeals from the judgment of sentence, entered in the Court of 

Common Pleas of Erie County, following his convictions for rape of a person 

less than 13 years old,1two counts of involuntary deviate sexual intercourse 

with a person less than 13 years old,2sexual assault,3two counts of 

indecent assault of a person less than 13 years old,4corruption of a minor,5

and endangering the welfare of children.6 Upon review, we affirm. 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 P.S. § 3121(a)(6).

2 18 P.S. § 3123(a)(6).

3 18 P.S. § 3124.1.

4 18 P.S. § 3126(a)(7).

(Footnote Continued Next Page)
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In February 2014, K.R. and his half-brother G.B. made a report to the 

Erie Police Department alleging that D.R.L., their cousin-by-marriage, had 

sexually abused them during their childhoods. The abuse occurred mostly 

when their mother, R.R., took them to be babysat at the home of her cousin, 

Kathy, who was D.R.L.’s wife. K.R. was abused when he was approximately 

eight to thirteen years old. G.B., eight years older than K.R., was abused 

from the time he was approximately five to thirteen years of age. The 

brothers were never abused together, and were each unaware that the other 

had been abused until G.B. disclosed the abuse to his mother, R.R., in an 

effort to explain his self-estrangement from various family members. R.R. 

then contacted K.R., who admitted that D.R.L. had also abused him. They 

subsequently discovered that their cousin, D.R.L.’s oldest daughter, had 

given birth to a baby boy and planned to move back to Erie to be closer to 

her father. In an effort to protect the baby from abuse by D.R.L., the 

brothers disclosed the abuse to their cousin, who encouraged them to go to 

the police. 

On or about March 3, 2014, the Erie Police Department forwarded to 

Detective Joseph Spusta the information concerning the sexual abuse 

allegations against D.R.L. and the following day Detective Spusta 

(Footnote Continued) _______________________

5 18 P.S. § 6301(a)(1)(ii).

6 18 P.S. § 4304(a)(1).
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interviewed K.R. On April 11, 2014, Detective Spusta conducted a one-way 

consensual phone call intercept between K.R. and D.R.L., in which K.R. 

confronted D.R.L. about the past abuse. D.R.L. neither confirmed nor 

denied the allegations, but claimed he had no memory of them. Detective 

Spusta interviewed D.R.L. on May 22, 2014, and he again claimed he had no 

memory of the abuse but neither confirmed nor denied the claims. On 

August 29, 2014, Detective Spusta filed charges against D.R.L. Detective 

Spusta did not interview G.B. until June 2015, and no charges were brought 

concerning D.R.L.’s alleged abuse of G.B., as the statute of limitations had 

run.

A hearing on a pre-trial motion in limine was held on July 13, 2015 to 

determine the admissibility of G.B.’s testimony regarding his abuse at the 

hands of D.R.L. The court held that the testimony was admissible to 

demonstrate a common plan, scheme or design pursuant to Pa.R.E. 404(b). 

Following a two-day trial, a jury convicted D.R.L. of the 

aforementioned charges. The court sentenced D.R.L. on January 26, 2016, 

to 21 to 42 years’ incarceration and ordered that he be classified a sexually 

violent predator under the Sex Offender Registration and Notification Act 

(SORNA)7and register as such for life. D.R.L. filed a motion to 

____________________________________________

7 42 Pa.C.S.A. §§ 9799.10-9799.41
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modify/reconsider sentence on February 1, 2016, which the court denied on 

March 4, 2016. 

D.R.L. filed a timely notice of appeal on March 16, 2016, followed by a 

court-ordered statement of errors complained of on appeal pursuant to 

Pa.R.A.P. 1925(b). On appeal, D.R.L. raises the following issue for our 

review:

Whether the [trial] court committed reversible error when it 

allowed a Commonwealth witness to testify concerning 

uncharged criminal allegations that [D.R.L.] had also sexually 

assaulted that witness?

Brief for Appellant, at 13.

In reviewing an evidentiary ruling by the trial court,

our standard of review is one of deference. The admissibility of 

evidence is solely within the discretion of the trial court and will 

be reversed only if the trial court has abused its discretion. 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. Herb, 852 A.2d 356, 363 (Pa. Super. 2004) (citations 

omitted). 

D.R.L. asserts that the trial court abused its discretion when it allowed 

the Commonwealth to introduce evidence of G.B.’s uncharged sexual abuse. 

Specifically, D.R.L. asserts that the trial court erred when it allowed G.B. to 

testify regarding nearly ten years of alleged abuse he endured at the hands 

of D.R.L. prior to the abuse of K.R. D.R.L. argues that the dispositive issue 

before the jury was K.R.’s credibility. D.R.L. asserts that G.B.’s testimony 
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regarding separate, uncharged abuse inflamed and prejudiced the jury 

against D.R.L. such that “the defense’s ability to have the jury carefully and 

objectively consider K.R.’s credibility was destroyed.” Brief for Appellant, at 

14. D.R.L. also argues that the distance in time between the boys’ abuse 

rendered G.B.’s testimony inadmissible.

Moreover, D.R.L. asserts that even if G.B.’s testimony were admissible 

under one of the exceptions set forth in Rule 404(b), the trial court 

nevertheless erred by admitting the testimony because its probative value 

was outweighed by its potential for unfair prejudice. D.R.L. argues that 

G.B.’s testimony was actually introduced with the improper purpose of 

demonstrating D.R.L.’s propensity to commit this type of crime, which is 

explicitly prohibited by Rule 404(b).

Evidence of other crimes is not precluded merely because it prejudices 

the defense. Commonwealth v. Brown, 414 A.2d 70, 75 (Pa.1980). 

Indeed, all evidence of guilt is prejudicial to the defense; the Rules of 

Evidence only prohibit unfair prejudice. Commonwealth v. Hairston, 84 

A.3d 657, 670 (Pa. 2014). As our Supreme Court has summarized:

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

omitted).

Here, the trial court admitted G.B.’s testimony for the limited purpose 

of demonstrating D.R.L.’s common plan, scheme, or design based on the 

similar relationship of the two boys to D.R.L. and the common pattern of 

D.R.L.’s abuse of the boys. While the specifics vary slightly, the abuse 

followed similar progressions in each case. Both boys testified that the 

abuse happened primarily in D.R.L.’s home during his caretaking duties, as 

well as in his car in empty lots and at the cemetery where D.R.L. worked. 

The abuse began for both boys at very young ages with fondling by D.R.L., 

which progressed to mutual masturbation, oral sex, and culminated in D.R.L. 

performing anal sex upon each of the victims. Each boy also testified to 

D.R.L.’s coercive nature, stating that he acted as if they were “buddies” and 

that his actions were normal. Both boys testified that the abuse in D.R.L.’s 

home generally occurred while others were present in the household. 

Furthermore, neither boy reported the abuse out of fear of D.R.L., though 

only G.B. remembers actually being threatened by D.R.L.

In arguing that G.B.’s testimony falls under the common plan 

exception of Rule 404(b), the Commonwealth relies on Commonwealth v. 

Frank, 577 A.2d 609 (1990). There, a counselor working with troubled 

orphans was charged with molesting one of his patients. At trial, the 

Commonwealth sought to introduce testimony from six other patients who 

alleged similar abuse by the defendant, the most recent of which occurred 
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approximately three to four years prior to the conduct giving rise to the 

charges. The trial court allowed the testimony and the counselor was 

ultimately convicted. This Court, in affirming the trial court, set forth the 

appropriate standard for determining the application of the common plan 

exception:

[A] determination of whether evidence is admissible under the 

common plan exception must be made on a case by case basis 

in accordance with the unique facts and circumstances of each 

case. However, we recognize that in each case, the trial court is 

bound to follow the same controlling, albeit general, principles of 

law. 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 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.
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Id. at 614. The Court rejected the defendant’s argument that evidence of 

the uncharged acts occurring three to four years prior were too remote in 

time to be admissible. 

Here, as in Frank, the abuse of G.B. ended approximately three years 

prior to when the abuse of K.R. began. “While remoteness in time is a factor 

to be considered in determining the probative value of other crimes evidence 

under [the “common scheme”] theory, the importance of the time period is 

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

Commonwealth v. Miller, 664 A.2d 1310, 1319 (Pa. 1995). As noted 

supra, the similarity between D.R.L.’s crimes against the two boys is 

striking. The boys were roughly the same age range during the abuse. The 

nature of the sexual contact between D.R.L. and the boys followed the same 

progression. Both boys were abused while D.R.L. acted in the role of 

caregiver. Finally, the location of the abuse – D.R.L.’s residence and car, as 

well as the cemetery at which he worked – was the same in each case. 

Since the pattern of abuse committed upon his victims was so distinct, we 

cannot find that the trial court abused its discretion in concluding that the 

three-year time period between the victimization of G.B. and K.R. was not so 

excessive as to render G.B.’s testimony overly prejudicial. 

With regard to prejudice, we have previously noted:

Whether relevant evidence is unduly prejudicial is a function in 

part of the degree to which it is necessary to prove the case of 

the opposing party. Here, the Commonwealth was required to 

prove that a non-consensual touching occurred, the purpose of 

which was sexual gratification. [The defendant] denies that the 
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touching occurred, and since the uncorroborated testimony of 

the alleged victim in this case might reasonably lead a jury to 

determine that there was a reasonable doubt as to whether [the 

defendant] committed the crime charged, it is fair to conclude 

that the other crimes evidence is necessary for the prosecution 

of the case. Without doubt, the other crimes evidence would be 

prejudicial to [the defendant.] That is what it is designed to be. 

On the facts of this case, however, it is not unduly prejudicial, as 

it is required for the Commonwealth’s case.

Commonwealth v. Ardinger, 839 A.2d 1143, 1145–46 (Pa. Super. 2003) 

(citation omitted). 

Similarly, here, the Commonwealth was faced with the task of proving 

its case based on the uncorroborated testimony of K.R., whose abuse had 

occurred between fifteen and twenty years prior. D.R.L. denied the abuse 

had occurred. Accordingly, G.B.’s testimony, demonstrating a pattern of 

conduct by D.R.L., was instrumental to the Commonwealth proving, beyond 

a reasonable doubt, that D.R.L. had committed the crimes of which he was 

accused. Under these circumstances, we cannot say that the probative 

value of G.B.’s testimony was outweighed by its prejudicial effect.

Lastly, we note that the trial court gave the jury a limiting instruction 

regarding the narrow purpose for which they were to consider the evidence 

of G.B.’s abuse. Specifically, the court instructed the jury as follows:

Now, you heard evidence tending to show that the defendant 

was guilty of other criminal conduct for which he is not on trial. 

I am speaking of the testimony of [G.B.] The evidence – or that 

evidence is before you for a limited purpose, that is, the purpose 

of tending to show a common scheme or plan on behalf of the 

defendant. This evidence must not be considered by you in any 

way other than for the purpose I have just stated. You must not 

regard this evidence as showing that the defendant is a person 
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of bad character or criminal tendency from which you might be 

inclined to infer guilt. 

N.T. Trial, 10/22/15, 89-90. It is well-settled that the jury is presumed to 

follow the trial court’s instructions. Commonwealth v. Cash, 137 A.3d 

1262, 1280 (Pa. 2016), citing Commonwealth v. Travaglia, 28 A.3d 868, 

882 (Pa. 2011). 

For all of the foregoing reasons, we find that the trial court did not 

abuse its discretion in admitting the prior bad act testimony of G.B. under 

the common plan exception pursuant to Rule 404(b).

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/17/2017