Com. v. Dillon

• Decision Date: 26 June 2007
• Docket Number: No. 32 EAP 2005.,32 EAP 2005.
• Citation: 925 A.2d 131
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Thomas DILLON, Appellant.
• Court: Pennsylvania Supreme Court

925 A.2d 131

COMMONWEALTH of Pennsylvania, Appellee, v. Thomas DILLON, Appellant.

No. 32 EAP 2005.

Supreme Court of Pennsylvania.

Argued March 1, 2006.

Decided June 26, 2007.

Owen W. Larrabee, Esq., Karl Baker, Esq., Defender Association of Philadelphia, Philadelphia, for Thomas Dillon.

Hugh J. Burns, Jr., Esq., Philadelphia District Attorney's Office, for Commonwealth of Pennsylvania.

Stuart B. Suss, Esq., Amy Zapp, Esq., Office of the Attorney General, for Attorney General of Pennsylvania.

BEFORE: CAPPY, C.J., and CASTILLE, NEWMAN, SAYLOR, EAKIN, BAER and BALDWIN, JJ.

OPINION

Justice CASTILLE.

Appellant Thomas Dillon appeals from the Superior Court's order reversing the trial court's denial of the Commonwealth's motion in limine. The motion in limine sought permission to introduce evidence in the Commonwealth's case-in-chief to explain the delayed report of sexual abuse made by the child-victim, L.P. This Court granted review to address whether Rule 404(b) of the Pennsylvania Rules of Evidence prohibits the Commonwealth from introducing such evidence in its case-in-chief-specifically, here, evidence that appellant physically abused L.P.'s mother and brother which was proffered to explain L.P.'s lengthy delay in reporting appellant's actions to authorities. For the reasons that follow, we affirm the judgment of the Superior Court.

In 1995, appellant began living with L.P.'s mother, Danielle Herron. L.P., then age nine, and her brother, K., age eight, also lived in the home. Appellant stands accused of sexually abusing L.P. continuously for nearly four years between 1995 and 1998, while also subjecting Ms. Herron and K. to regular physical abuse. During one incident, in 1998, appellant broke K.'s leg. Appellant claimed that K. was injured as the two were wrestling, but K. told L.P. during his hospitalization for his broken leg that appellant had intentionally injured him. K. waited to reveal this information to his mother until the family had moved away from appellant. Thereafter, appellant was arrested, prosecuted, and convicted of aggravated assault¹ arising from this incident.

In May of 2001, while appellant was incarcerated for the assault conviction, L.P. first reported that appellant had sexually abused her. On June 22, 2001, appellant was arrested and charged with involuntary deviate sexual intercourse,² indecent assault,³ false imprisonment,⁴ corruption of minors,⁵ statutory sexual assault,⁶ sexual assault,⁷ unlawful restraint,⁸ simple assault,⁹ recklessly endangering another person,¹⁰ and endangering the welfare of children.¹¹ At appellant's June 29, 2001 preliminary hearing, L.P. testified that appellant sexually abused her almost daily from 1995 to 1998, from the time she was the age of nine to the age of twelve. On April 15, 2002, the Commonwealth filed a pre-trial motion in limine seeking to introduce evidence of appellant's physical abuse of L.P.'s family, including his aggravated assault conviction, during the Commonwealth's case-in-chief. The Commonwealth claimed in the motion that the evidence was relevant and necessary to explain L.P.'s failure to promptly report the sexual abuse, as appellant's physical abuse of L.P.'s family made her fearful of retaliation. Commonwealth's Motion at 3. Additionally, the Commonwealth asserted that the evidence established that the sexual abuse was committed through forcible compulsion, or threat thereof, and that it also provided proof of the nature of the relationship between the parties. Id.

On April 19, 2002, the trial court issued an order and opinion regarding the Commonwealth's motion. The trial court ruled that the Commonwealth could introduce evidence of appellant's physical assaults against L.P., but not evidence of his physical abuse of L.P.'s mother and brother unless appellant first attempted to refute L.P.'s allegations of sexual abuse by arguing her lack of prompt complaint. The trial court realized that the evidence concerning L.P.'s family could be relevant to establish that appellant forced L.P. into participating in the alleged sexual assaults. But the trial court noted, force was not an element of any of the charged offenses because L.P. was a minor when the offenses occurred. Consequently, the trial court determined that evidence of appellant's abuse of L.P.'s family was inadmissible unless and until the defense argued the lack of prompt complaint. The Commonwealth then appealed to the Superior Court, certifying that the trial court's exclusionary order terminated or substantially handicapped the prosecution in accordance with Rule 311(d) of the Pennsylvania Rules of Appellate Procedure.¹²

Initially, a three-judge panel of the Superior Court affirmed the trial court, agreeing that the introduction of the disputed evidence during the Commonwealth's case-in-chief could possibly be more prejudicial than probative, but that decision was later withdrawn upon grant of the Commonwealth's petition for reargument en banc. Writing for a unanimous court following reargument, the Honorable Seamus McCaffery began by acknowledging that the Commonwealth's appeal was reviewable under Rule 311(d). Commonwealth v. Dillon, 863 A.2d 597, 600 (Pa.Super.2004).¹³ The court then proceeded to review the merits of the Commonwealth's claim, acknowledging the difficulties in prosecuting sexual assault cases, such as the lack of corroborating witnesses to the crime and the jury's frequent need to rest its decision solely on a determination of the relative credibility of the victim and the defendant. Courts of this Commonwealth, the panel noted, permit evidence of a victim's prompt complaint to be offered as substantive evidence for the prosecution, just as the defense is permitted to introduce evidence of a victim's lack of prompt complaint in order to cast doubt upon the accusation. Contrary to the trial court, the Superior Court panel interpreted Commonwealth v. Barger, 743 A.2d 477 (Pa.Super.1999) (en banc), as expressly allowing the Commonwealth's introduction of evidence during its case-in-chief of a defendant's physical abuse against a minor sexual assault victim and her family. Barger, according to the panel, authorizes the presentation of evidence of prior physical abuse and intimidation to provide the jury the benefit of the full res gestae¹⁴ of the crime and to ensure that the accused cannot "profit from terrorizing his victim into silence." Dillon, 863 A.2d at 603. The Superior Court found the trial court's ruling in this case antithetical to Barger's precepts. Moreover, the court reasoned that the trial court's ruling would lead to an illogical result, namely, allowing the accused to control whether the jury could hear evidence as to why an intimidated victim of sexual abuse did not promptly report her abuse. Id. at 603-04. Accordingly, the Superior Court ruled that the trial court had abused its discretion in denying the Commonwealth's motion in limine, and it therefore vacated the trial court's order and remanded the case for trial. Upon appellant's petition for allowance of appeal, this Court granted further pre-trial review.

Appellant claims that the trial court's decision to conditionally exclude evidence of his alleged prior bad acts against the victim's family, unless and until made an issue by defense argument, was well within the trial court's discretion. Appellant argues that the trial court's reading of the Barger case was a correct interpretation because defense counsel in Barger made the evidence of prior physical abuse relevant by casting doubt on the allegations given the victim's failure to make a prompt complaint. The evidence that the Commonwealth seeks to admit, appellant adds, does not fall under any specific exception to Evidence Rule 404(b). Moreover, appellant maintains that the Commonwealth failed to establish that the evidence was more probative than prejudicial. Regarding the specific evidence of K.'s broken leg, appellant asserts that the incident only marginally helps to show why L.P. failed to report the alleged abuse by appellant, because the incident occurred during the last four months of the alleged four-year period of sexual abuse. Because his breaking K.'s leg offers little support for the instant charges, appellant argues, the evidence of prior assaults would contribute to the jury's willingness to believe that appellant sexually abused L.P. as a matter of criminal propensity or bad character, outweighing any marginal probative value of the evidence. Finally, appellant stresses that the trial court did not completely foreclose admission of prior physical abuse; rather, it prudently decided to wait until it heard the defense presentation at trial before it ultimately would determine if the evidence could be introduced.

The Commonwealth responds that L.P.'s lengthy and unexplained failure to report the alleged abuse "inevitably" raises a negative inference as to her credibility. Therefore, the Commonwealth argues that it should be permitted to rebut that natural inference in its case-in-chief. The Commonwealth submits that the law recognizes the relevance of such evidence, since it permits the introduction of other crimes evidence if introduced for some relevant purpose other than to show bad character or a defendant's criminal propensity. Here, the evidence was proffered to show how appellant coerced L.P.'s silence and delayed her report. Excluding an explanation for the delayed abuse report, contends the Commonwealth, is tantamount to blocking the Commonwealth from affirmatively discharging its burden of proof because the integrity of the trial is undermined by the misleading suggestion created by a child victim's unexplained delay in reporting.

The Commonwealth also argues "strong policy reasons" for permitting evidence of other crimes to explain a failure to timely report a sex crime. The Commonwealth echoes the Superior Court's concern that preventing the admission of prior physical abuse of...