Commonwealth v. Gilliam
Citation | 249 A.3d 257 |
Decision Date | 12 March 2021 |
Docket Number | No. 2092 MDA 2019, No. 2093 MDA 2019,2092 MDA 2019 |
Parties | COMMONWEALTH of Pennsylvania v. Kevin Eugene GILLIAM, Appellant Commonwealth of Pennsylvania v. Kevin Eugene Gilliam, Appellant |
Court | Superior Court of Pennsylvania |
Shawn Michael Stottlemyer, Carlisle, for appellant.
Megan Ann McGoron, Bellefonte, for appellee.
In these consolidated appeals, Kevin Eugene Gilliam (Appellant) appeals from the judgment of sentence imposed after a jury convicted him of two counts of indecent assault without consent and one count of aggravated indecent assault without consent;1 the trial court also convicted Appellant of three counts of summary harassment.2 Upon careful review, we affirm.
Appellant, a licensed massage therapist, owned and operated a spa located in State College, Pennsylvania. In January 2017, two of Appellant's female clients, J.G. and K.J. (collectively, "the victims"), reported to police that Appellant had inappropriately touched their genitals and breasts during massages, without their consent.3
In March 2017, the Commonwealth charged Appellant with several counts of indecent assault, aggravated indecent assault and harassment. These offenses were charged in two separate informations, respectively docketed at 14-CR-355-2017 (pertaining to J.G.), and 14-CR-320-2017 (pertaining to K.J.) (collectively referred to as the "trial court dockets"). Upon motion of the Commonwealth, the trial court dockets were joined.
On September 12, 2018, the Commonwealth filed motions in limine , including a motion to admit evidence of Appellant's other bad acts, pursuant to Pennsylvania Rule of Evidence 404(b)4 (the " Rule 404(b) motion"). Specifically, the Commonwealth sought to introduce the following:
Motion in Limine , 9/12/18, at 6-7 ( ).
Appellant filed a response in opposition to the Rule 404(b) motion, asserting that the probative value of the proffered evidence was greatly outweighed by the potential prejudice to Appellant. The trial court conducted a hearing on the matter on September 19, 2018. One day later, the trial court entered an opinion and order granting the Rule 404(b) motion.
The matter proceeded to a jury trial, commencing on September 24, 2018. The Commonwealth presented the testimony of, inter alia , the victims and two of the women identified in the Rule 404(b) motion, S.S. and E.G. The Commonwealth also called Nick Peters (Peters), whom the trial court qualified as an expert in the field of massage therapy techniques and protocol.
During S.S.’s testimony, she improperly opined on the credibility of the victims’ accusations against Appellant. In response, Appellant's counsel moved for a mistrial at sidebar. The trial court declined to grant a mistrial; however, it issued a cautionary instruction to the jury, explaining the limited purpose for which it could consider S.S.’s testimony.
Trial resumed and Appellant testified that he never inappropriately touched the victims. Appellant asserted it would have been impossible for him to do so, as he always properly draped his clients with sheets that covered their intimate areas. At the close of trial, the jury found Appellant guilty of aggravated indecent assault without consent and indecent assault without consent at Docket 320, pertaining to K.J., and guilty of indecent assault without consent at Docket 355, pertaining to J.G. (the jury acquitted Appellant of the aggravated indecent assault of J.G.).
On November 28, 2018, the Commonwealth gave Appellant notice of its intent to seek a 25-year mandatory minimum sentence (Notice), under 42 Pa.C.S.A. § 9718.2 ( ). Sentencing occurred on December 13, 2018; there, Appellant objected to the application of section 9718.2. The trial court rejected Appellant's argument and imposed an aggregate prison sentence of 25 to 50 years, pursuant to section 9718.2.
On December 26, 2018, Appellant filed a timely post-sentence motion claiming that the jury's verdict was against the weight of the evidence. By an opinion and order entered on March 26, 2019, the trial court denied the post-sentence motion. Appellant did not file a notice of appeal.
The trial court subsequently reinstated appellant's direct appeal rights, nunc pro tunc , in response to a petition filed by Appellant under the Post Conviction Relief Act. See 42 Pa.C.S.A. §§ 9541 - 9546. Appellant then timely filed notices of appeal,5 one at each docket before this Court, i.e. , 2092 MDA 2019 (No. 2092) and 2093 MDA 2019 (No. 2093).6 Both Appellant and the trial court have complied with Pa.R.A.P. 1925.7
In the appeal at No. 2093, Appellant presents 9 issues for our review:
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...consider how a cautionary jury instruction might ameliorate the prejudicial effect of the proffered evidence." Commonwealth v. Gilliam , 249 A.3d 257, 270-71 (Pa. Super. 2021). Here, the court instructed the jury:You have also heard evidence tending to show that [Green] may have committed a......
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... ... contact." 18 Pa.C.S.A. §§ 3101, 3126(a)(7); ... J.R. , 648 A.2d at 34 (finding ... undressing a child and licking her vaginal area to be ... sufficient for indecent assault); Commonwealth v ... Gilliam , 249 A.3d 257, 268 (Pa. Super. 2021) (citing ... Commonwealth v. Evans , 901 A.2d 528, 533 (Pa. Super ... 2006)) (observing that touching another person's intimate ... parts is sufficient to show the purpose of arousing sexual ... desire) ... ...
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