Prior Bad Acts

In a case that is scheduled to go to trial on May 13, 2014, the Commonwealth served notice that it intended to introduce three types of “prior bad acts” against my 77-year old client pursuant to Pa. R. Evid. 404 (b).  The three categories were: (A) sexual assaults of stepchildren that allegedly occurred between 35 and 40 years ago; (B) arguments between my client and his wife, which allegedly included the 33-year old wife getting slapped, hit with a chair, and locked outside the home; and (C) earlier assaults of the complaining witness that allegedly occured in Jamaica and Florida.  I am glad to report that after argument held on January 8, 2014, the Court precluded categories (A) and (B) from evidence, and will allow only category (C), the alleged assaults that occurred outside Pennsylvania.  While I am encouraged by the ruling, it will still make defending a difficult case even harder.  For those interested in more detail, portions of my Brief follow:

A.           The Court should preclude evidence of defendant’s alleged abuse of two step-daughters during the 1970s.

The Commonwealth seeks a result here that has never been duplicated in caselaw – the admission of alleged sexual assaults that supposedly occurred 35 to 40 years ago, in the mid to late 1970s.  According to the Commonwealth, A.K., now age 51, will testify that defendant molested her by digital penetration when she was between 12 and 14 years old, while her sister C.K. (age 43) will apparently testify that defendant “lifted up her shirt and sucked on her breasts” when she was 8 or 9 years old.  See Commonwealth Motion at 4.  Missing from the Commonwealth’s vague descriptions of these bad acts is any indication of where they happened, what were the surrounding circumstances, and if there were any other persons present.  It will be an exercise in futility for defendant to defend against these allegations aside from a blanket denial.  Due to defendant’s advanced age and the passage of more than three decades, he could not begin to reconstruct where he was, or what he was doing, at the time of each allegation.  Moreover, the allegations concerning what defendant allegedly did to AK (digital penetration) and CK (sucked breast) in the 1970s do not sufficiently resemble the allegations of this case (vaginal rape) to satisfy “the requirements of the common scheme, plan or design exception to the general rule that evidence of one crime is inadmissible against a defendant being tried for a different crime.”  Commonwealth v. O’Brien, 836 A.2d 966, 971 (Pa. Super. 2003).

The longest delay allowed by Pennsylvania caselaw between a prior bad act involving sexual abuse of a minor and the later assault of the complaining witness is the fourteen years found in Commonwealth v. Luktisch, 451 Pa. Super. 500, 680 A.2d 877 (1996).  More typical is Commonwealth v. Keaton, 556 Pa. 442, 729 A.2d 529 (1999), where the Supreme Court affirmed the admission of evidence from two of defendant’s prior victims, which occurred “over a period of less than six months” before the capital murder case against the defendant.  See id. at 537.  In Luktisch, the Trial Court allowed the defendant’s eldest daughter to testify at trial concerning sexual abuse that had occurred “fourteen years prior to those committed upon” the complaining witness.  Id., 680 A.2d at 878.  The Superior Court affirmed, in large part because only six years had passed between the end of sexual abuse involving defendant’s oldest daughter, and “the time he turned his depraved intentions upon” a later victim of similar misconduct.  Id.  Here, the passage of time between defendant’s alleged abuse of AK and CK and his alleged acts involving AM is between 35 and 40 years.  This period of time exemplifies the “excessive delay” which should preclude the admission of prior bad acts under Rule 404 (b).  See Smith, 635 A.2d at 1089.

B.        The Court should preclude defendant’s alleged abusive behavior towards his wife. 

The Commonwealth seeks to introduce evidence that defendant yelled at his wife, slapped her, locked her “out of the house in little clothing,” and also hit her with a chair.  The Commonwealth has not provided a date, time or place for any of these allegations.  See Commonwealth Motion at 3.  Nor has the Commonwealth provided factual averments that defendant’s alleged behaviors had any affect on the complaining witness’s state of mind, for example by inducing her to forego a prompt complaint of defendant’s alleged sexual abuse.  Instead, the Commonwealth asks the Court to infer that defendant’s acts directed to his spouse are a complete explanation for “why A.M. would not disclose the abuse to anyone over a three-year period.”  Id. at 20.

Caselaw makes clear that for evidence of a third person’s abuse to be admitted at the trial of a sexual assault case, that abuse must be severe, and also shown to have dissuaded the complainant from making a prompt complaint.  Commonwealth v. Dillon, 863 A.2d 597 (Pa. Super. 2004) proves the point.  In that case, the Commonwealth’s proffer concerning the defendant’s abuse of the complainant’s family members included the following:

  • “The victim personally witnessed her mother, and brother, Kenny, receive several violent beatings at the hands of [the defendant].”  Id. at 599.
  • “the victim was physically abused less, and isolated from the other family members.”  Id.
  • “by doing this, defendant was compelling the victim to comply with the sexual abuse by making her fearful of receiving beatings similar to that of her mother and brother.”  Id.
  • And finally, “in all that time, never once did the victim indicate to anyone the numerous incidents of sexual abuse until after the family finally moved away from [the defendant].  Id.

On this record, the Superior Court held that defendant’s abuse of the complainant’s mother and brother should not have been restricted to rebuttal evidence, but instead should have been allowed into the Commonwealth’s case in chief, because “the victim’s resulting fear of Dillon logically and persuasively explains her failure to report her abuse.”  Id. at 600.

The facts of this case differ from Dillon in several compelling ways.  Most noticeably, while Thomas Dillon was inflicting severe beatings to the point of breaking legs, the totality of the allegations against defendant is that he yelled at his wife, slapped her, locked her “out of the house in little clothing,” and also hit her with a chair.  See Commonwealth Motion at 3.  The inference that A.M. was terrified into silence by defendant’s alleged misconduct is not supported by any facts, and the speculation of the District Attorney are not a sufficient substitute.  While Mr. Dillon isolated his victim from the other family members and abused her less, the Commonwealth provides no indication that defendant behaved in a manner which indicated that abuse would be turned against A.M. or withheld, depending on her conduct.  In summary, the Commonwealth has failed to provide a factual connection between defendant’s allegedly poor behavior towards his wife, and A.M.’s failure to report defendant’s alleged sexual assaults while they were allegedly taking place.  Without this connection, evidence of defendant slapping his wife and engaging in other misconduct is nothing more than propensity evidence, inviting the jury to convict because defendant has behaved badly on other occasions.

C.        The Court should preclude evidence of defendant’s alleged abuse of A.M. in Florida and Jamaica.

Finally, the Commonwealth seeks to introduce evidence going back to 2008, that defendant allegedly sexually assaulted A.M., starting “when she was 9 years old in Jamaica,” and continuing to when the family moved to Florida.  See Commonwealth Motion at 3.  The request should be denied, because the cases upon which the Commonwealth primarily relies involved criminal convictions based on specific facts, not vague allegations.  In addition, allowing the Commonwealth to convict defendant based in part on actions he allegedly took in Jamaica and Florida would involve the improper, extraterritorial application of Pennsylvania law to acts allegedly done in jurisdictions that are able to apply their own criminal law to alleged offenders.

The importance of specific “prior bad acts” allegations is shown by Commonwealth v. O’Brien, 836 A.2d 966 (Pa. Super. 2003), where the defendant was arrested after befriending the ten year old son of a former lover, inviting him to defendant’s home for a visit, playing a pornographic film, and then attempting to rape the boy.  See id. at 968.  Prior to trial, the Commonwealth served notice of its intent to introduce the facts that supported O’Brien’s guilty pleas to molesting two young boys, age 11 and 8 respectively.  Id. at 967.  In the first case, involving the 11-year old complainant, the defendant admitted to meeting the child through his parents, inviting him over to his house, and then attempting to perform oral sex.  Id.  In the second case, the defendant similarly met the 8 year-old victim through his parents, arranged for the boy to visit alone, played a pornographic film, and then initiated oral sex.  Id.

The Trial Court precluded the facts of the two prior sexual assault cases to which defendant pleaded guilty, but the Superior Court reversed, finding that the specific facts of the two prior convictions satisfied “the requirements of the common scheme, plan or design exception to the general rule that evidence of one crime is inadmissible against a defendant being tried for a different crime.”  Id. at 971.  The Court reached a similar result in Commonwealth v. Ardinger, 839 A.2d 1143 (Pa. Super. 2003), where it readily reversed the Trial Court’s preclusion of the facts that supported defendant’s pending criminal case in Maryland, because those facts were a virtual duplicate of those which led to defendant’s prosecution in Pennsylvania.  See id. at 1143.  Specifically, in the Pennsylvania case, defendant befriended an 11 year-old boy after becoming close to his single mother, in time became a “substitute father figure,” and then attempted to fondle the boy’s penis after inviting him over to spend the night.  Id.  In the Maryland case, defendant befriended a 10 year-old boy after becoming close to his single father, engaged in sports activities with the boy as a “Big Brother,” and was eventually discovered while fondling the boy after inviting him over to spend the night.  See id. at 1144.

The facts of this case do not compare to the specific allegations of O’Brien and Ardinger.  In O’Brien, the defendant was charged with a crime that was a virtual duplicate of the two cases where he had pleaded guilty.  Ardinger likewise involved nearly identical criminal prosecutions, one pending trial in Pennsylvania, and the other pending in Maryland.  Here, the Commonwealth alleges a penetration of A.M. “when she was 9 years old in Jamaica,” and an attempted back massage in Florida.  See Commonwealth Motion at 3.  These vague allegations, compared to the offenses filed against defendant in this case, do not rise to the level of a common scheme, plan or design.

Finally, the prior bad acts admitted against the defendants in O’Brien and Ardinger were each the result of a prior judicial proceeding, where the acts had been found in violation of governing law, and resulted in criminal prosecution.  Here, in contrast, the acts which defendant allegedly committed in Jamaica and Florida apparently resulted in no official action in either location.  For this Court to now put defendant on trial in Pennsylvania for those same acts would effectively result in the extraterritorial application of Pennsylvania law.  See Kunzmann, 41 Pa. at 434, 1862 Pa. Lexis 40, ** 14 (observing that “the courts of Pennsylvania, therefore, have no jurisdiction over crimes committed within the territorial limits of another state,” and further noting that “crimes and misdemeanors committed within the limits of each of the United States are punishable only by the jurisdiction of that state where they arise.”).