Com. v. O'BRIEN

• Decision Date: 13 November 2003
• Citation: 836 A.2d 966
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Edward O'BRIEN, Appellee.
• Court: Pennsylvania Superior Court

836 A.2d 966

COMMONWEALTH of Pennsylvania, Appellant, v. Edward O'BRIEN, Appellee.

Superior Court of Pennsylvania.

Argued June 24, 2003.

Filed November 13, 2003.

William G. Young, Asst. Dist. Atty., Philadelphia, for Com., appellant.

Samuel A. DiMatteo, Philadelphia, for appellee.

BEFORE: JOYCE, BENDER and BOWES, JJ.

OPINION BY BENDER, J.:

¶ 1 The Commonwealth of Pennsylvania appeals from the pre-trial order entered on April 26, 2002, precluding the admission of evidence of prior bad acts/crimes that the Commonwealth sought to admit in its prosecution of Edward O'Brien (O'Brien) on charges of rape, involuntary sexual intercourse, statutory assault, statutory sexual assault, endangering the welfare of a child, indecent assault, unlawful restraint, false imprisonment, simple assault and recklessly endangering another person. We reverse.

¶ 2 O'Brien was arrested on May 29, 2001, and charged with the above-enumerated offenses. Following a preliminary hearing held on October 30, 2001, and two continuances, the case was listed for a non-jury trial to begin on May 3, 2002. However, on April 23, 2002, the Commonwealth filed a Motion for Admission of Prior Bad Acts, pursuant to Pa.R.E. 404(b),¹ that would permit it to introduce evidence of O'Brien's prior sexual assaults on two other victims for which he received concurrent sentences of 3½ to 15 years' imprisonment in a state correctional facility. A rule to show cause was issued listing the motion for hearing on April 26, 2002. However, on that date, following a brief interaction between the Commonwealth's attorney and the court, the court denied the motion. Likewise, reconsideration of the motion was denied and the Commonwealth filed the instant appeal.² ¶ 3 The Commonwealth raises one issue in this appeal:

Did the lower court err by denying the Commonwealth's motion in limine, which sought admission of evidence of defendant's prior, substantially similar sexual assaults against two other children, where the evidence was admissible for proper purposes under Pa.R.E. 404(b), and the probative value far outweighed any potential prejudicial effect?

Commonwealth's brief at 3.

¶ 4 In an appeal such as this, we are guided by our well-settled standard of review:

[A]n appellate court may reverse a trial court's ruling regarding the admissibility of evidence only upon a showing that the trial court abused its discretion. Because the trial court indicated the reason for its decision ... our scope of review is limited to an examination of the stated reason.

Commonwealth v. Horvath, 781 A.2d 1243, 1246 (Pa.Super.2001) (quoting Commonwealth v. Minerd, 562 Pa. 46, 753 A.2d 225, 229 (2000)). "We must also be mindful that `a discretionary ruling cannot be overturned simply because a reviewing court disagrees with the trial court's conclusion.' " Id. (quoting Commonwealth v. Cohen 529 Pa. 552, 605 A.2d 1212, 1218 (1992)).

¶ 5 The Commonwealth argues that the evidence of O'Brien's prior crimes is strikingly similar to the present charges, is highly probative and shows a common plan, scheme or design. Moreover, because O'Brien has chosen to be tried by a judge without a jury, the potential for undue prejudicial effect is diminished.

¶ 6 Initially noting that the complainant, Michael, was ten years old at the time of the offenses at issue, the court, in its opinion, recited the following facts that the Commonwealth intended to prove at trial:

O'Brien is a homosexual who was previously involved in a relationship with Michael's father. He was also a friend of Michael's mother. On an unknown date in January of 1996 Michael went to O'Brien's house to visit. While Michael was there alone with him, O'Brien asked him to go to the bedroom. Defendant turned on a pornographic videotape, placed Michael on the bed, pulled down his own pants and Michael's pants and attempted to insert his penis into Michael's anus. Michael pushed away from the defendant, pulled up his pants and left the house. Defendant told him not to tell anyone. Michael was afraid it was his fault and so he did not report the crime. Sometime later Michael's mother caught him sexually assaulting his younger brother. The information of this crime was divulged to a therapist during questioning regarding the assault on his brother.

Trial Court Opinion (T.C.O.), 11/5/02, at 3.

¶ 7 The court also set out the facts involving O'Brien's 1985 guilty plea to charges of sexual assault of two male children in 1982 and 1985. The court's rendition of those facts reads as follows:

O'Brien pled guilty to charges stemming from his sexual assaults of Timothy S. ("Timothy") from 1982-1985, beginning when Timothy was eleven years old. The defendant was a friend of Timothy's parents and Timothy visited his house on numerous occasions. On several of those occasions the defendant placed his penis in Timothy's anus, put his penis in Timothy's mouth or took Timothy's penis into his mouth.

In the second case, the defendant pled guilty to charges stemming from offenses related to two sexual assaults of Dennis S. ("Dennis"), age eight, committed in 1982 and 1983. Here also the defendant was friends with the victim's parents and assaulted the child when they were alone in the defendant's residence. Prior to the assault O'Brien showed Dennis pornographic pictures. He then placed his penis into Dennis's mouth and told him not to tell about the sexual acts. On October 31, 1985, O'Brien was sentenced to a total of 3½ to 15 years[`] imprisonment for both the offenses. He was paroled in April of 1990.

T.C.O., 11/5/02, at 4.

¶ 8 The trial court concluded that, although the facts regarding the two prior convictions were similar to the facts in the instant circumstances, "they are not sufficient to establish a signature for O'Brien," citing Commonwealth v. Hawkins, 534 Pa. 123, 626 A.2d 550 (1993), and Commonwealth v. Perkins, 519 Pa. 149, 546 A.2d 42 (1988). T.C.O. at 3 (emphasis in original). The court also indicated that "[t]he facts and circumstances here are not unlike the facts and circumstances in many cases of sexual assaults against children" and, therefore, "none of the defendant's actions here is so similar that proof of one tends to establish proof of the other." Id. The court also concluded that the prior offenses, which occurred in 1982 and 1985 were too remote in time to be relevant to the present offense, even though O'Brien was not paroled until April of 1990.

¶ 9 Our court has set forth the law with regard to the admission of prior bad acts as follows:

Evidence of distinct crimes is not admissible against a defendant being prosecuted for another crime solely to show his bad character and his propensity for committing criminal acts. However, evidence of other crimes and/or violent acts may be admissible in special circumstances where the evidence is relevant for some other legitimate purpose and not merely to prejudice the defendant by showing him to be a person of bad character.

Horvath, 781 A.2d at 1245. These other purposes include inter alia "(1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the other; or (5) the identity of the person charged with the commission of the crime on trial." Commonwealth v. Collins, 550 Pa. 46, 703 A.2d 418, 422-23 (1997). See also Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491, 497 (1988) (stating that the "list of `special circumstances' is not exclusive").

¶ 10 The thrust of the Commonwealth's argument is that the facts of the prior crimes are so similar to the present facts that they show a common scheme or plan. Thus, the details of the crimes must be examined for shared similarities, i.e., similarity of victims, location where the crimes occurred. See Commonwealth v. Newman, 528 Pa. 393, 598 A.2d 275, 279 (1991) (stating that a commonality of roles and situs establishes a common design and that the court is to look at the shared details, which includes the perpetrator's actions in addition to the location of the crimes and commonality of the relationship between the defendant and the victims). See also Commonwealth v. Elliott, 549 Pa. 132, 700 A.2d 1243, 1250 (1997) (allowing in testimony to show common scheme, plan or design that included information about three prior assaults with sexual overtones on three white women in their twenties in the early morning hours after each woman found herself alone with defendant). ¶ 11 Specifically, the Commonwealth sets forth the following to support its assertion that similar facts comprised the prior and present offenses:

All of the charges stemmed from defendant's sexually assaulting young boys. All of the victims shared similar personal characteristics. Each boy was white, between the ages of eight and eleven years old, and each boy knew defendant because his parents were friends of defendant. Each crime was committed after defendant was alone with his victim, in defendant's home and often in his bedroom, after defendant had shown pornography to the victim. Each crime involved deviate sexual intercourse—either oral or anal—and, in each case, defendant instructed the victim not to tell anyone what had occurred.

Commonwealth's brief at 12.

¶ 12 Moreover, in response to the trial court's determination that the facts were insufficient to establish a "signature," the Commonwealth notes that both Hawkins and Perkins, the cases relied upon by the trial court, were cases in which the evidence of another crime was to be used to identify the defendant, while here identity is not at issue because the complainant will identify O'Brien as the individual who assaulted him. Rather the Commonwealth asserts that its use of the evidence of O'Brien's prior convictions will counter the attacks on the victim's credibility, especially in light of the five year span between the assault and the victim's report to...