Commonwealth v. Young , 989 A.2d 920 ( 2010 )

OPINION BY

FORD ELLIOTT, P.J.:

¶ 1 Appellant, Gaylend L. Young, appeals the judgment of sentence entered following his conviction for various sexual offenses against his minor son. Finding no error, we affirm.

¶ 2 In February of 2000, appellant was charged in three separate criminal complaints as to three separate incidents of sexual molestation involving his son. The convictions on appeal today were listed at trial docket number CP-14-CR-345-2000 (“the Lezzer Lumber incident”) and involved appellant forcing his son to perform oral sex on him in a restroom at a business known as Lezzer Lumber in State College sometime during 1994 or 1995. After being contacted by police on the Lezzer Lumber incident, appellant admitted, in an interview and in a written statement, to four total incidents involving his son. Thereafter, appellant was also charged at trial docket numbers CP-14-CR-346-2000 (“the Pleasant Gap incident”) and CP-14CR-347-2000 (“the Bellefonte incident”), and these were consolidated for trial with the matter presently on appeal.

¶ 3 On November 2, 2000, appellant filed multiple motions in limine, one of which sought to bar admission of appellant’s confession to the Bellefonte incident.¹ Following a hearing on November 3, 2000, the trial court granted one of the motions in limine, and barred the Commonwealth from placing the Bellefonte incident before the jury. The court found that because the victim could not recall the incident and that proof would be based solely upon appellant’s confession, the corpus delicti rule would be thereby violated. Trial thereafter proceeded upon the remaining two criminal complaints. At trial on the remaining charges, the court did, however, allow a detective to read into the record appellant’s confession, which did include the admission to the Bellefonte incident. (Notes of testimony, 11/6-7/00 (testimony of Steven Bosak and Susan Young) at 8-11.)

¶ 4 On November 8, 2000, at trial docket number CP-14-CR-345-2000 (the Lezzer Lumber incident), the jury returned guilty verdicts for involuntary deviate sexual intercourse, indecent assault, indecent exposure, and corruption of minors. The jury acquitted appellant of all charges at trial docket number CP-14-CR-346-2000 (the Pleasant Gap incident). On March 1, 2001, the trial court sentenced appellant to an aggregate term of 6 to 12 years’ imprisonment.

¶ 5 On March 12, 2001, appellant filed a post-sentence motion. On May 8, 2001, the trial court granted appellant a new trial because appellant’s confession was sent out with the jury in violation of Pa. R.Crim.P. 1114, 42 Pa.C.S.A.² On June 6, 2001, the Commonwealth filed a notice of appeal. The trial court entered an order on June 11, 2001, directing the Commonwealth to file a concise statement of matters complained of on appeal. The Commonwealth failed to timely respond, and on May 8, 2003, this court affirmed the granting of a new trial, finding that the Commonwealth had waived all issues pursuant to Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998). Commonwealth v. Young, 829 A.2d 368 (Pa.Super.2003) (unpublished memorandum), appeal denied, 577 Pa. 680, 843 A.2d 1238 (2004).

¶ 6 At his second trial, the trial court again permitted appellant’s confession to be read into the record, which confession admitted the Bellefonte incident, of which the court had previously barred prosecution, as well as the Pleasant Gap incident, of which appellant had been acquitted at his first trial. (Notes of testimony, 2/1/05 at 244-248.) Appellant was again convicted of involuntary deviate sexual intercourse, indecent assault, indecent exposure, and corruption of minors. On April 26, 2005, the trial court imposed an aggregate term of 7 to 14 years’ imprisonment.³ Appellant timely filed his notice of appeal on May 24, 2005, and also timely filed a concise statement of matters complained of on appeal upon the trial court’s order.

¶ 7 On November 2, 2006, this court dismissed appellant’s appeal because of substantial briefing defects and for failing to supply a complete record in not providing the transcript of the November 3, 2000 motion in limine hearing. Commonwealth v. Young, 915 A.2d 153 (Pa.Super.2006) (unpublished memorandum). The court found that the inadequate brief prevented it from determining whether the transcript of the November 3, 2000 hearing was necessary to review the issues raised.

¶ 8 On November 20, 2007, appellant timely filed a PCRA petition in which he claimed that direct appeal counsel had provided ineffective assistance. On June 25, 2008, the trial court reinstated appellant’s direct appeal rights. Notice of appeal was timely filed on July 22, 2008, and a timely concise statement of matters complained of on appeal was filed upon the trial court’s order.

¶ 9 Appellant raises the following issues on appeal:

I. DID THE TRIAL COURT ABUSE ITS DISCRETION IN ADMITTING CERTAIN ALLEGATIONS OF SEXUAL CONDUCT BETWEEN THE DEFENDANT AND THE ALLEGED VICTIM AT THE TIME OF DEFENDANT’S TRIAL?

II. IN THE EVENT IT IS DETERMINED THAT THE OTHER INCIDENTS OF ALLEGED SEXUAL CONDUCT BETWEEN THE DEFENDANT AND THE ALLEGED VICTIM WERE OTHERWISE ADMISSABLE [SIC], DID THE PREJUDICE TO DEFENDANT BY THE ADMISSION OF THOSE INCIDENTS OUTWEIGH ANY PROBATIVE VALUE OF THE SAME?

Appellant’s brief at 10.

¶ 10 In his first issue, appellant complains that the trial court improperly admitted his confession to the Pleasant Gap incident because he had been acquitted on those charges. Appellant asserts that the admission of his confession to the Bellefonte incident was likewise improper because prosecution on those charges had been barred under the corpus delicti rule. We begin our analysis by noting our standard of review:

The standard of review employed when faced with a challenge to the trial court’s decision as to whether or not to admit evidence is well settled. Questions concerning the admissibility of evidence lie within the sound discretion of the trial court, and a reviewing court will not reverse the trial court’s decision absent a clear abuse of discretion. Commonwealth v. Hunzer, 868 A.2d 498 (Pa. Super.2005). Abuse of discretion is not merely an error of judgment, but rather where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will. Id.

Commonwealth v. Bishop, 936 A.2d 1136, 1143 (Pa.Super.2007), appeal denied, 597 Pa. 710, 951 A.2d 1159 (2008).

¶ 11 Preliminarily, we note that the Commonwealth argues that appellant has waived his issues because he has still not had the November 3, 2000 motion in li-mine hearing transcribed and placed in the record. Unlike the prior panel of this court, this panel is presented with an adequate appellate brief. We find that the November 3, 2000 hearing transcript is unnecessary to our review of appellant’s issues because such hearing would not have pertained to evidentiary matters raised on appeal, but rather would have been confined solely to legal arguments and conclusions of law, for which our review is plenary. See Commonwealth v. Johnson, 969 A.2d 565 (Pa.Super.2009) (suppression court’s conclusions of law are not binding on appellate court). Therefore, we find no waiver.

¶ 12 Appellant’s complaints go to the admission of evidence of other crimes during his trial for the Lezzer Lumber incident. We observe that while evidence of other crimes is generally inadmissible, an exception applies instantly:

In general, evidence of other wrongful conduct not charged in the information on which the defendant is being tried is inadmissible at trial except in certain limited circumstances. One such exception arises in the prosecution of sexual offenses. Evidence of prior sexual relations between defendant and his or her victim is admissible to show a passion or propensity for illicit sexual relations with the victim. This exception is limited, however. The evidence is admissible only when the prior act involves the same victim and the two acts are sufficiently connected to suggest a continuing course of conduct. The admissibility of the evidence is not affected by the fact that the prior incidents occurred outside of the statute of limitations.

Commonwealth v. Wattley, 880 A.2d 682, 686 (Pa.Super.2005), appeal dismissed as improvidently granted, 592 Pa. 304, 924 A.2d 1203 (2007) quoting Commonwealth v. Knowles, 431 Pa.Super. 574, 637 A.2d 331, 333 (1994) (emphasis added by Watt-ley court).

¶ 13 Appellant argues that the introduction of his confession to the Pleasant Gap incident violates the collateral estop-pel component of appellant’s Double Jeopardy rights, because appellant had been acquitted of the charges related to that incident. We disagree.

¶ 14 The United States Supreme Court ruled that the Double Jeopardy Clause incorporated the doctrine of collateral es-toppel in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). In Ashe, the defendant robbed a group of men playing poker. The defendant was acquitted in an initial trial for robbing one of the men, but was subsequently convicted in a later trial for robbing another of the men. The United States Supreme Court reversed the conviction, holding that the defendant’s acquittal in the earlier trial precluded the State from charging him in the second case, because to secure a conviction, the jury in the second case would have had to reach a diametrically opposite conclusion as to the ultimate issue in the case, which was the same for both trials.

¶ 15 In Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990), however, the United States Supreme Court ruled that in a subsequent trial for bank robbery, the victim of a home burglary was permitted to testify that the defendant and another man had burgled her home, even where the defendant had previously been acquitted of that burglary. The Court found that there was no collateral estoppel because the prior acquittal in the burglary trial did not determine the ultimate issue in the robbery trial.

¶ 16 The case before us is more akin to Dowling than to Ashe. In the case before us, although the two cases involve the same defendant, the same victim, and the same criminal sexual accusations, the two crimes arose from separate incidents. In Ashe, the two criminal trials arose from the same incident, while in Dowling the incidents were distinct. Thus, the acquittal in the Pleasant Gap incident did not determine the ultimate issue in the Lezzer Lumber incident, and permitting appellant’s confession to the Pleasant Gap incident to be read into the record at the Lezzer Lumber trial does not run afoul of the collateral estoppel component of the Double Jeopardy Clause.

¶ 17 Appellant argues that Dowling only controls federal constitutional law and that the Pennsylvania Supreme Court may provide greater protection for Pennsylvania citizens by more strictly construing the Double Jeopardy provisions of the Pennsylvania Constitution. Unfortunately for appellant’s position, he concedes that he is unable to cite to any authority from our supreme court where the court did, in fact, interpret our state constitution more strictly in this regard. (Appellant’s brief at 30.) Moreover, appellant has not offered any reasons why this court or our supreme court would or should follow a stricter interpretation of the collateral estoppel component of Double Jeopardy under the Pennsylvania Constitution. Where an appellant does not provide argument that the state constitution affords greater protection, the state and federal provisions are treated as coextensive. Commonwealth v. Hall, 574 Pa. 233, 830 A.2d 537 (2003).

¶ 18 Appellant also argues that the admission of his confession to the Pleasant Gap incident, following acquittal on the charges, and admission of his confession to the Bellefonte incident, where trial was barred by the corpus delicti rule, was in violation of Pa.R.E. 404, 42 Pa.C.S.A.

¶ 19 Appellant posits that because he was acquitted in the Pleasant Gap incident, his actions there no longer qualify as prior crimes or bad acts under Rule 404(b). However, as the Commonwealth indicates, Rule 404(b) is not limited to evidence of crimes that have been proven beyond a reasonable doubt in court. Commonwealth v. Ardinger, 889 A.2d 1143 (Pa.Super.2003). Thus, the admission of the Pleasant Gap confession does not violate Rule 404(b).

¶ 20 As for the Bellefonte incident, appellant offers no real reasons why this evidence should not qualify as admissible under Rule 404(b). Appellant merely restates the purpose of the corpus delicti rule, which is to guard against the hasty and unguarded nature of confessions so as to ensure that there will not be a conviction where no crime has been committed. Likewise, the Dissent argues that allowing admission of evidence of the Bellefonte incident during the trial for the Lezzer Lumber incident works directly against the purpose of the corpus delicti rule because the unreliable Bellefonte admissions, unsupported by other evidence, will still serve to secure a conviction, albeit for a different crime. Our supreme court has previously ruled, however, such a situation does not implicate the corpus delicti rule:

“The purpose of the corpus delicti rule is to guard against ‘the hasty and unguarded character which is often attached to confessions and admissions and the consequent danger of a conviction where no crime has in fact been committed.’ ” Id. (citing Commonwealth v. Turza, 340 Pa. 128, 16 A.2d 401, 404 (1940)). Here, appellant’s confession to Porter was not to the murders and other offenses with which he was charged, but rather concerned an uncharged robbery that occurred prior to the crimes at issue. In an instance such as that presented sub judice, there was no possibility that appellant’s confession would lead to his conviction for an earlier robbery with which he was not charged, and thus the purpose of the corpus delicti rule is not implicated.

Commonwealth v. Edwards, 588 Pa. 151, 184-185, 903 A.2d 1139, 1158 (2006) (underlining emphasis added), cert. denied, Edwards v. Pennsylvania, 549 U.S. 1344, 127 S.Ct. 2030, 167 L.Ed.2d 772 (2007).

¶ 21 Using the confession of the Belle-fonte incident in the trial of the Lezzer Lumber incident will not work against the purposes of the corpus delicti rule. No conviction will thereby be had as to the Bellefonte incident, which is supported only by appellant’s confession. Rather, conviction can only be obtained as to the Lezzer Lumber incident, which is supported by evidence in addition to appellant’s confession. According to Edwards, the corpus delicti rule is not implicated where there is no possibility that the defendant will be convicted for the crime confessed to, regardless of whether appellant may later be convicted of a different crime at a trial in which the confession is subsequently introduced. Again, Rule 404(b) has not been violated.

¶ 22 Appellant also argues that the admission of his confession to the Pleasant Gap and Bellefonte incidents violated Rule 404(b)(3) because the prejudice to him exceeded the probative value of the evidence. We find that the trial court properly insulated appellant from such prejudice by its instructions to the jury. The court told the jury that the evidence of the Pleasant Gap and Bellefonte incidents was admitted solely to demonstrate a passion or a propensity by appellant for illicit sexual relations with this particular victim, and must not be considered as evidence that appellant was of bad character or had tendencies from which guilt might be inferred instantly. This mirrors the language in Wattley. We also note that appellant’s counsel, in closing, reminded the jury that appellant had been acquitted by another jury as to the Pleasant Gap incident, and had not been tried as to the Bellefonte incident because of inadequate evidence under the corpus delicti rule. (Notes of testimony, 2/2/05 at 582 and 581, respectively.) We find that these factors mitigated the prejudicial effect of the evidence such that it did not outweigh the probative value of the evidence.

¶ 23 In closing, we note that the admissibility of prior bad acts for which the defendant has been acquitted has been considered in other jurisdictions with varying results. The Supreme Court of Florida has held, as a matter of fundamental fairness, that evidence of a prior crime for which appellant has been acquitted, cannot be admitted at a subsequent trial on a different offense. State v. Perkins, 349 So.2d 161 (Fla.1977). Likewise, the Supreme Court of Minnesota has adopted a similar rule. State v. Wakefield, 278 N.W.2d 307 (Minn.1979). Tennessee, on the other hand, does not allow admission of such evidence because the acquittal renders the evidence more prejudicial than probative. State v. Holman, 611 S.W.2d 411 (Tenn.1981).

¶ 24 Nonetheless, our holding today places Pennsylvania with the majority of jurisdictions that have ruled on this issue. Upon review of an article in American Law Reports, we observe that the number of jurisdictions allowing introduction of this evidence greatly outnumbers those jurisdictions that do not permit it. See 25 A.L.R.4th 934. See e.g. People v. Beamon, 8 Cal.3d 625, 105 Cal.Rptr. 681, 504 P.2d 905 (Cal.1973) (evidence of prior highjacking not rendered inadmissible by subsequent acquittal so long that evidence of the acquittal is entered and jury instructed as to limited use of prior bad act evidence); See State v. Schlue, 129 N.J.Super. 351, 323 A.2d 549 (N.J.Super.A.D.1974) (fact that appellant had been acquitted on earlier charges did not bar introduction; admission of such testimony, although it relates to offenses for which defendant had been acquitted, is upheld by great weight of authority throughout country); State v. Smith, 271 Or. 294, 532 P.2d 9 (Or.1975) (evidence of other crimes is admissible if it is substantially relevant; acquittal alone, though it may lessen probative value of evidence of the other offense, does not render it inadmissible). A majority of these jurisdictions allow or require that the jury be informed of the acquittal. A small minority actually bar the defendant from informing the jury of the acquittal. See State v. Schlue. Thus, we find our ruling today to be in accord with that of the majority of jurisdictions.

¶ 25 Accordingly, having found no merit to appellant’s issues on appeal, we will affirm the judgment of sentence.

¶ 26 Judgment of sentence affirmed.

¶ 27 COLVILLE, J. files a Dissenting Opinion.

1 . We note that the Dissent attempts to cast appellant's statements in regard to the Belle-fonte incident as denials or exculpatory statements rather than confessions. We completely disagree with this interpretation. In his tape-recorded statement of January 24, 2000, appellant admitted that he permitted the child victim to fondle his genitals for 30 seconds. (See Commonwealth's Exhibit 9 at 3.) Appellant also stated that the child had an erection and was touching appellant for the purpose of sexual pleasure. (Id. at 4.) The Dissent accepts, as a complete denial of wrongdoing, appellant’s explanation of this event to the effect that the child "got me down” and "got my pants down” and was thereafter able to continue fondling appellant’s genitals for 30 seconds without appellant being able to stop the child aggressor. (See also Commonwealth Exhibit 7 at paragraph 1.) The child victim was born on July 9, 1984. (Notes of testimony, 2/1/05 at 58.) Appellant was born on November 15, 1953. (See Criminal Complaint.) In his written statement, appellant stated that the Bellefonte incident occurred somewhere from 1989 to 1991. Therefore, appellant was, at most, 38 years old at the time of the event and the child was, at most, 7 years old. Thus, appellant’s ridiculous explanation would have us believe that a 7-year-old child overpowered a 38-year-old man, and kept him subdued for 30 seconds while the child forcibly fondled the man’s genitals. Even if we accept that the child was the initial aggressor, appellant admitted, at the very least, that he permitted the fondling to continue for 30 seconds, and that he was aware that the fondling was for the purpose of arousing the sexual desire of the child complainant. Simply stated, this is a confession to indecent assault, which prohibits indecent contact for the purpose of arousing the sexual desire of either the defendant or the complainant. See 18 Pa.C.S.A. § 3126(a)(7). The Dissent also asserts that appellant's statements regarding the Pleasant Gap incident did not amount to a confession. Again, we completely disagree. Appellant stated that this incident occurred in 1996. Therefore, appellant would have been 43 years old and the child, 12 years old. Appellant claimed that the child was again the aggressor, but appellant also admitted that he permitted the child to have his mouth on appellant's penis for 30 seconds. (Commonwealth Exhibit 9 at 9-10.) Appellant also admitted that he had an erection while the child's mouth was on his penis. (Id. at 10.) Again, even if we accept that the child was the initial aggressor, appellant permitted the sexual contact to continue for 30 seconds. It is incomprehensible to accept that appellant could not have stopped the conduct immediately. Thus, this was a confession to involuntary deviate sexual intercourse with a child. See 18 Pa.C.S.A. § 3123(b). The Dissent characterizes our analysis here as making a credibility determination. We disagree. We fully accept as credible appellant’s statements on their face, even to the extent that appellant positions his statements as exculpatory statements. All that our analysis points out is that even where an individual makes what he believes to be an exculpatory statement, he may inadvertently divulge information that amounts to an admission or a confession. Here, appellant attempted to exculpate himself by painting the child as the aggressor. In doing so, however, he also confessed that he, as an adult, permitted his son, a child, to fondle his penis for 30 seconds and that it was done for the child’s sexual gratification. That is a confession to indecent assault. The Dissent is incorrect when it states that appellant's statement, by its literal words, is exculpatory.

2 . Rule 1114 was renumbered as Rule 646, effective April 1, 2001.

3 . The opinion of the trial court asserts that a term of 7 years and 1 month to 15 years’ imprisonment was imposed. (Trial court opinion, 8/17/05 at 1.) Meanwhile, the Guideline Sentence Forms indicate that an aggregate term of 6 to 12 years was imposed. Our total is based upon the actual sentencing orders which imposed 6 'k to 13 years' imprisonment for involuntary deviate sexual intercourse, found that indecent assault merged for sentencing purposes, imposed a concurrent sentence of one month to one year for indecent exposure, and imposed a consecutive sentence of 6 to 12 months for corruption of minors.