Commonwealth v. Gordon , 543 Pa. 513 ( 1996 )

OPINION OF THE COURT

FLAHERTY, Justice.

On June 21, 1998, Thomas C. Gordon, an attorney, was charged in Montour County with two counts of indecent assault in violation of 18 Pa.C.S. § 3126(a)(1). He had been convicted of similar assaults in Columbia County. After hearing on December 29, 1993, the trial court granted Gordon’s motion in limine to exclude evidence of Gordon’s similar conduct in the Columbia County cases. However, the court also noted that transcripts of the Columbia County cases were unavailable and that if the Commonwealth could show a common scheme, plan, design, intent or motive, it would consider an offer at trial, presumably based on transcripts which would then be available.

Thereafter, the Commonwealth obtained transcripts of what it deemed relevant portions of the Columbia County trial and filed a motion for allowance of this testimony in order to show common scheme, plan, and design. The trial court denied the motion. The Commonwealth then certified that the order denying admission of the Columbia County matter substantially handicapped its prosecution of the case and appealed to Superior Court.

Superior Court reversed, holding that the evidence at issue was part of a common scheme, plan, or design and that any prejudice could be tempered through appropriate jury instructions. One judge, dissenting, would have quashed the appeal on the theory that the rule of Commonwealth v. Cohen, 529 Pa. 552, 605 A.2d 1212 (1992) has no application to in limine rulings on the admissibility of evidence where the Commonwealth is given an opportunity to represent its evidence at trial. In Cohen we stated:

In summary, we hold that the Commonwealth may appeal pretrial orders which exclude evidence and have the effect of terminating or substantially handicapping the prosecution, in the same manner that the Commonwealth may appeal pretrial suppression orders.

529 Pa. at 564-65, 605 A.2d 1212. Gordon petitioned for allowance of appeal and we granted allocatur in order to reconsider the rule in Cohen.¹

Gordon’s first claim is that there is a distinction between orders which grant or deny motions in limine to admit or exclude evidence and suppression rulings. Gordon also echoes the concerns of Mr. Justice Cappy, concurring in Cohen, that some motions in limine to admit or exclude evidence require evidentiary rules “based upon the trial court’s inherent authority to control the admission of evidence at trial,” and that appeals such as this implicate the defendant’s right to a speedy trial and will cause defense counsel to avoid motions in limine altogether.

We remain unpersuaded by these arguments. There is no essential difference between suppression rulings and rulings on motions in limine to admit or exclude evidence. In both cases, a pretrial ruling is handed down which admits or excludes evidence at trial, and in both cases, once a jury is sworn, the Commonwealth may not appeal from an adverse ruling. That suppression motions are always of constitutional dimension and motions in limine are only sometimes of constitutional dimension is of no import, for in both cases, without an immediate right of review, the Commonwealth’s case may be so hampered that the Commonwealth may be unable to proceed.

As to the claim that the trial court is in a unique position to decide motions in limine for the admission or exclusion of evidence, while this may be true, it is also true that the appellate court has whatever record the trial court used to make its decision. If the record is insufficient to make an appellate decision, it would also have been insufficient for the trial court to make a decision, and presumably the appellate court would remand the case appropriately.

Concerning speedy trial rights, while it is obvious that appeal of a pretrial order will cause a delay in the trial, the issue is not whether there is a delay, but the weight of the competing interests. Here, the competing interests are promptitude versus a considered determination of whether the Commonwealth has had a fair opportunity to put on its best case. In our view, to preclude an immediate review of a pretrial ruling that would terminate or substantially handicap the Commonwealth’s case would be a harm that far outweighs the benefit to the defendant of securing a more speedy trial.

Next, Gordon argues that the Commonwealth was obligated to make an offer of proof of its evidence, presumably at trial, instead of taking a direct appeal to Superior Court. Presumably, this argument is based on the trial court’s statement that it would reconsider its grant of the motion in limine upon presentation of an offer of proof in which testimony from previous trials was available. In short, Gordon asserts that when the trial court grants a motion in limine to exclude evidence but states that it will reconsider its decision at trial, the matter must be presented for reconsideration at trial and it may not be appealed before that time.

We disagree. Once the jury is empaneled, jeopardy has attached and the Commonwealth may not appeal, with few exceptions, from any rulings or verdicts which occur after empanelment. To preclude pretrial appellate review whenever a trial court agrees to reconsider at trial its pretrial ruling unfavorable to the Commonwealth would completely eliminate pretrial appellate review, for trial courts, presumably, may always reconsider pretrial evidentiary rulings. But we have already determined that fairness to the Commonwealth requires the right to appeal adverse pretrial rulings which exclude evidence the Commonwealth deems crucial to its case. This argument is without merit.

Finally, Gordon argues that even if the Commonwealth’s appeal to Superior Court was properly allowed, it was error for that court to reverse the trial court on the issue of the admissibility of evidence tending to show a common scheme or plan. This court recently stated the law governing such evidence as follows:

It is well established in this Commonwealth that evidence of distinct crimes is not admissible against a defendant being prosecuted for another crime solely to show his or her bad character and propensity for committing criminal acts. Commonwealth v. Banks, 513 Pa. 318, 349, 521 A.2d 1 (1987). This general rule nevertheless allows evidence of other crimes to be introduced to prove (1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others, or (5) to establish the identity of the person charged with the commission of the crime on trial — in other words, where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other. Commonwealth v. Tedford, 523 Pa. 305, 567 A.2d 610 (1989); Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 (1981).

Commonwealth v. Murphy, 540 Pa. 318, 657 A.2d 927, 932 (1995).

In this case, Gordon is charged with two counts of indecent assault of a client, Robin Bower. Gordon has been convicted of three counts of indecent assault on three other women, each of whom was meeting with him on legal business at the time of the assault. Superior Court summarized the similarities in the assaults as follows:

Comparison of the conduct giving rise to the offenses in this case and the conduct in the Columbia County proceeding discloses the following similarities: (1) appellee strategically placed his female victims in a standing position for the ostensible purpose of reviewing court-related documents or matters; (2) while the victims were thus occupied and focused on the materials, appellee positioned himself behind the women and began rubbing his penis against their buttocks/thigh/legs; (3) despite their efforts to move away from appellee, appellee continued his conduct and followed the women about the table or desk until the victims were either able to sit down or leave, or a third-party interrupted; (4) the conduct occurred during the course of an attorney-client relationship with the victims, at a time when the victims were emotionally vulnerable and dependent upon appellee for advice and assistance with their legal problems; (5) the incidents occurred while the women were alone with the appellee; (6) the victims were fearful of resisting or advising anyone of this behavior because they did not want to jeopardize either their own case or appellee’s representation of their husband or boyfriend and (7) the offenses here occurred less than one year before the Columbia County incidents.

Commonwealth v. Gordon, 438 Pa.Super. 166, 179, 652 A.2d 317, 323 (1994).

It is apparent that Gordon’s conduct in the Columbia County case is relevant to prove motive, intent, absence of mistake or accident, and a common scheme or plan embracing the commission of two crimes so related to each other that proof of one tends to prove the others.

Having concluded that evidence of the Columbia County crimes tends to prove the commission of the crimes in this case, it remains to consider whether evidence of Gordon’s conduct in the Columbia County case would be unduly prejudicial. As this court stated in Commonwealth v. Billa:

[Admissibility of evidence is a matter addressed to the sound discretion of the trial court and an appellate court may only reverse rulings on admissibility upon a showing that the lower court abused its discretion. Commonwealth v. Claypool, 508 Pa. 198, 202, 495 A.2d 176, 178 (1985). As with any evidentiary ruling, the trial court should balance the relevancy and evidentiary need for the evidence of distinct crimes against the potential for undue prejudice.

521 Pa. 168, 177-78, 555 A.2d 835, 840 (1989).

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.² Gordon denies that the 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 Gordon 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 Gordon. 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. It was an abuse of discretion for the trial court to deny the Commonwealth’s motion for the admission of this evidence.

Order of Superior Court is affirmed.

CAPPY, J., files a dissenting opinion which is joined by ZAPPALA and NIGRO, JJ.

1 . Commonwealth v. Cohen, 529 Pa. 552, 605 A.2d 1212 (1992) was a plurality decision of this court.

2 . Hie crime of indecent assault, in relevant part, requires the following elements:

A person who has indecent contact with another not his spouse, or causes such other to have indecent contact with him, is guilty of indecent assault if:

(1) he does so without the consent of the other person.

18 Pa.C.S. § 3126(a)(1). Section 3101 defines “indecent contact” as "any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire, in either person.” 18 Pa.C.S. § 3101.