Judges Opinions Public Notices, — October 16, 2019 12:10 — 0 Comments

Public Notices, October 9, 2019

Volume 57, No. 10

 PUBLIC NOTICES

DECEDENTS’ ESTATES

TRUST NOTICES

FICTICIOUS NAME

ARTICLES OF INCORPORATION

CHANGE OF NAME

 

TABLE OF CONTENTS

Commonwealth of Pennsylvania v. Eric Livering

 

 

NOTICE IS HEREBY GIVEN that Letters Testamentary or of Administration have been granted in the following estates. All persons indebted to the said estate are required to make payment, and those having claims or demands to present the same without delay to the administrators or executors named.

 

FIRST PUBLICATION

 

ESTATE OF ROBERT D. GIUNTA, late of Millcreek Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

James Cherry, Executor

107 South Eight Street

North Wales, PA 19545

 

Jason J. Schibinger, Esquire

Buzgon Davis Law Offices

P.O Box 49

525 South Eight Street

Lebanon, PA 17042

 

ESTATE OF DAVID H. MILLER, late of Swatara Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Cindy Royer, Executrix

506 Marion Street

Lititz, PA 17543

 

Edward J. Coyle, Esquire

Buzgon Davis Law Firm

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17072

 

ESTATE OF CAROL F. ARTZ, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Daryl L. Artz, Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF ROY R. ROOT, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Edward P. Root, Jr., Executor

15 Circle Drive

Fredericksburg, PA 17026

 

Edward J. Coyle, Esquire

Buzgon Davis Law Firm

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17072

 

ESTATE OF HERMAN E. CARPENTER, late of West Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Administrators.

 

Fern Marley, Co-Administrator

 

Bonnie Swanger, Co-Administrator

 

Horace M. Ehrgood, Esquire

410 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF CRAIG D. SCHULZE, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Administrator.

 

Chad A. Schulze, Administrator

 

Horace M. Ehrgood, Esquire

410 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF RUTH M. COLDSMITH, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Personal Representatives.

 

Melanie S. Bellissimo, Personal Representative

 

Laurie J. Schwing, Personal Representative

Alexandra M. Sipe, Esquire

Maxwell Sipe Law Offices, LLC

20 East Sixth Street, Suite 301

Waynesboro, PA 17268

 

ESTATE OF CONNIE M. BUCKS, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Lee A. Bucks, Executor

1005 Challenge Drive

Lebanon, PA 17042

 

Michael S. Bechtold, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF WILLIAM E. CUPELLI, late of City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Jordan E. Cupelli-Knight, Executor

 

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF DONALD PATRICK KERWICK, a/k/a DONALD P. KERWICK, late of Palmyra Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Jan B. Yupcavage, Executrix

951 Carriage House Court

Hershey, PA 17033

 

Paul J. Datte, Esquire

Cerullo, Datte & Burke, P.C.

450 West Market Street

P.O. Box 450

Pottsville, PA 17901

 

 

 

SECOND PUBLICATION

 

ESTATE OF VIRGINIA A. WYRICK, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Yvonne S. Johnson, Executrix

918 Sycamore Lane

Lebanon, Pa 17046

 

Edward J. Coyle, Esquire

Buzgon Davis Law Offices

PO Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF TERRENCE L. SMITH, late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been grated to the undersigned Executor.

 

Scott M. Smith, Executor

 

Estate of Terrence L. Smith

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF ESTHER E. YENSER, late of the Borough of Myerstown, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Betty E. Walmer, Co-Executrix

8 Maple Avenue

Manheim, PA 17545

Eugene O. Yenser, Co-Executor

265 Greble Road

Myerstown, PA 17067

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF PATRICIA A. PAINTER, a/k/a PATRICIA ANN PAINTER, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been grated to the undersigned Executrix.

 

Karen L. Painter, Executrix

 

Patrick M. Reb, Esquire

547 S. 10th Street

Lebanon, PA 17042

 

THIRD PUBLICATION

 

ESTATE OF MARY I. ARNOLD, late of the Township of Bethel, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.

 

Susan M. Arnold, Administratrix

992 Miller Street

Lebanon, PA 17046

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF EDNA C. BALMER, late of North Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Jean A. Pulaski, Executrix

 

Gerald J. Brinser, Esquire

P.O. Box 323

Palmyra, PA 17078

 

ESTATE OF CORDELL H. HEFFELFINGER, late of North Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Anna K. Wise, Executrix

 

Estate of CORDELL H. HEFFELFINGER

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF CELIA M. CAVALIER, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Jerry L. Cavalier, Executor

 

Estate of CELIA M. CAVALIER

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF CEDRIC L. SHERK, late of the City Of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Susan K. Newman, Executrix

 

Estate of CEDRIC L. SHERK

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF MICHAEL J. WAREMCZUK, late of Palmyra (North Londonderry Township), Lebanon County, Pennsylvania, deceased. Letters Testamentary have been grated to the undersigned Executrix.

 

Noreen D. Flint, Executrix

335 Wesley Drive, Apt 616

Mechanicsburg, PA 17055

 

Joseph M. Farrell, Esquire

201/203 South Railroad Street

PO Box 113

Palmyra, PA 17078

 

ESTATE OF MORGAN B. SWISHER, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix,

 

Jennie L. Swisher, Executrix

1126 Nowlen Street

Lebanon, PA 17042

 

Jon Johnson, Esquire

Johnson Legal

PO Box 25

Myerstown, PA 17067

 

TRUST NOTICES

 

NOTICE IS HEREBY GIVEN THAT the Carlton E. McKinley Living Trust dated February 2, 1995, (the “Trust”), is being administered because of the death of Carlton E. McKinley, late of South Londonderry Township, Lebanon, Pennsylvania, who died on July 24, 2019. All persons having claims against the Decedent or Trust are requested to present them for settlement, and all persons indebted to the Decedent or Trust are requested to make immediate payment without delay to:

 

Ronald E. McKinley, Trustee

Edward P. Seeber, Esquire

JSDC Law Offices

Suite C-400

555 Gettysburg Pike

Mechanicsburg, PA 17055

 

NOTICE OF THE DEATH OF Arthur L. Herring, late of North Annville Township, Lebanon County, Pennsylvania, Settlor of The Arthur L. Herring Revocable Living Trust, dated 3/17/1999 and amended 7/9/2010, is hereby given. All persons indebted to said Trust are requested to make prompt payment and those having claims to present the same, without delay to:

 

Brenda Kay Herring, Trustee

 

David A. Peckman, Esquire

Peckman Chait LLP

29 Mainland Road

Harleysville, PA 19438

 

FICTITIOUS NAME

 

NOTICE IS HEREBY GIVEN, pursuant to the provisions of the Fictitious Name Act, 54 Pa. C.S.A. Sec.311 of Act 1982-295, and its amendments and supplements, that Appleby, LLC of 224 Fencepost Lane, Palmyra, Pennsylvania, has filed an Application for registration of the fictitious name of HEAVEN’S BEST CARPET CLEANING, which shall have its principal place of business at 224 Fencepost Lane, Palmyra, Pennsylvania.

 

KEITH D. WAGNER, ESQUIRE

6 East Main Street – 2nd Floor

P.O. Box 323

Palmyra, PA 17078

 

ARTICLES OF INCORPORATION

 

NOTICE IS HEREBY GIVEN that Articles of Incorporation were filed with the Corporation Bureau of the Pennsylvania Department of State on September 25, 2019, for the purpose of incorporating a business corporation. The name of the corporation is HEWEY WELDING, INC. The Articles of Incorporation were filed pursuant to the provisions of the Pennsylvania Business Corporation Law of 1988, as amended.

 

Charles A. Ritchie, Jr., Esquire

FEATHER AND FEATHER, P.C.

22 West Main Street

Annville, PA 17003

 

CHANGE OF NAME

 

Notice is hereby given that on the 25th day of September, 2019, the Petition of Chase Richard Donmoyer was filed in the above Court requesting an Order to change his name from Chase Richard Donmoyer to Chase Richard Light. The Court has fixed the 29th day of October, 2019, at 11:00 o’clock, a.m. before The Honorable

John C. Tylwalk, in Courtroom No. 1 of the Lebanon County Municipal Building, 400 South Eighth Street, Lebanon, Pennsylvania, as the time and place for the Hearing of said Petition, where any and all interested parties may appear and show cause, if any they have, why the request of Petitioner should not be granted.

 

Loren A. Schrum, Esquire

Michael C. Padasak, Esquire

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

 

 

Commonwealth of Pennsylvania v. Eric Livering

 

Criminal Action-Law-Sexual Offenses-Children-Separate Victims-Audiovisual Evidence-Consolidation of Charges-Severance of Charges-Admissibility of Evidence-Bad Character-Propensity for Committing Crimes-Common Scheme or Plan Exception-Res Gestea Exception-Time Lapse-Confusion of the Jury-Prejudice

 

Defendant, who was charged with numerous sexual crimes at four (4) action numbers involving children based upon alleged photographing and videotaping in his home of four (4) children in various stages of undress and while engaging in sexual acts with the victims while they were unconscious. The Commonwealth filed Notices to Consolidate the charges at the four (4) action numbers for trial, to which Defendant responded by filing a Motion to Sever the charges at the action numbers for trial.

 

  1. In addressing a motion for severance, the critical consideration is whether a defendant will be prejudiced by the court’s decision not to sever.

 

  1. Prejudice is defined as that which would occur if the evidence tended to convict the defendant by showing only the propensity to commit crimes or because the jury was incapable of separating the evidence or could not avoid cumulating evidence.

 

  1. In determining a motion for severance of offenses not based upon the same act or transaction or opposing joinder of separate indictments or informations, the court must determine whether the evidence of each of the offenses would be admissible in a separate trial for the other, such evidence is capable of separation by the jury so as to avoid danger of confusion and the defendant unduly will be prejudiced by the consolidation of offenses.

 

  1. Evidence of distinct crimes generally is not admissible against a defendant prosecuted for another crime solely to show the defendant’s bad character or propensity for committing criminal acts.

 

  1. Evidence of other crimes may be introduced to prove motive, intent, absence of mistake or accident or a common scheme, plan or design embracing commission of two (2) or more crimes so related to each other that proof of one (1) tends to prove the others or to establish the identity of the person charged with the commission of the crime on trial.

 

  1. Evidence of other crimes also may be admission under the res gestae exception which exists when such evidence was part of the chain or sequence of events that became part of the history of the case and formed part of the natural development of the facts.

 

  1. When ruling upon the admissibility of evidence under the common plan exception, the court first must examine the details surrounding the circumstances of each criminal incident to assure the evidence reveals criminal conduct that is distinctive and so nearly identical so as to become the signature of the same perpetrator.

 

  1. If the evidence reveals that the details of each criminal incident nearly are identical, the fact that the incidents are separated by a lapse in time likely will not prevent the offer of the evidence unless the time lapse is excessive.

 

  1. The evidence of the crimes charged at the four (4) action numbers is admissible under the common plan theory where there is a definite similarity in the ages of the victims at the time of the crimes, the charges involve pictures and/or videos of the victims changing and in various stages of undress and the offenses occurred in Defendant’s home using the same hidden cameras.

 

  1. While the crimes are alleged to have occurred over an eight (8) year period of time, the lapse in time is not excessive where the conduct with the different victims appears to have been ongoing throughout that period of time.

 

  1. The evidence of the crimes charged at the four (4) action numbers is admissible under the res gestae exception in light of the fact that the factual background leading to the search of Defendant’s home after a complaint by one (1) of the victim’s mothers where evidence was located upon which the charges are based is part of the natural progression of events of the cases and would create confusion if not shared with the jury.

 

  1. Where a trial concerns distinct criminal offenses that are distinguishable in time, space and characters involved, the jury is capable of separating the evidence.

 

  1. Although the record will be voluminous in order to establish the charges, there is no indication that the evidence overlaps as to the depiction of the victims such that the jury will be able to separate the evidence with regard to the separate victims and counts and avoid confusion.

 

  1. There is no prejudice to allowing the cases to continue as consolidated, as the evidence presents four (4) distinct victims and merely constitutes aggregate evidence.

 

L.C.C.C.P. Nos. CP-38-CR-0001923-2018, CP-38-CR-0002043-2018, CP-38-CR-0002069-2018 and CP-38-CR-0000121-2019, Opinion by Samuel A. Kline, Judge, April 18, 2019.

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA

 

V.

 

ERIC LIVERING

:
:
:
:
:
 

CP-38-CR-1923-2018

CP-38-CR-2043-2018

CP-38-CR-2069-2018

CP-38-CR-0121-2019

 

ORDER

AND NOW, to wit, this 18th day of April, 2019, upon consideration Defendant’s Motion to Sever, the Commonwealth’s response thereto, and the parties’ respective arguments, the Motion is hereby DENIED. The actions shall remain consolidated for purposes of trial.

 

 

BY THE COURT:

 

________________________, J.

SAMUEL A. KLINE

 

 

 

cc:           Office of the District Attorney

Timothy T. Engler, Esq.

Court Administration (order only)

Matt Cole, Law Clerk (order only)

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA

 

V.

 

ERIC LIVERING

:
:
:
:
:
 

CP-38-CR-1923-2018

CP-38-CR-2043-2018

CP-38-CR-2069-2018

CP-38-CR-0121-2019

 

APPEARANCES:

Megan E. Ryland-Tanner, Esq.    for the Commonwealth

Timothy T. Engler, Esq.                  for Defendant

OPINION, KLINE, J. APRIL 18, 2019

Before the Court is the Commonwealth’s Motion to Consolidate and Defendant’s Motion to Sever. For reasons set forth herein, the Commonwealth’s Motion to Consolidate is granted and Defendant’s Motion is denied.

FACTS AND PROCEDURAL HISTORY

Defendant is charged with numerous sexual crimes involving children. The charges stem from allegations that a minor victim, D.P., found various nude photographs of herself on Defendant’s electronic tablet, informed her mother of the photographs and D.P.’s mother subsequently filed a complaint with law enforcement. Upon investigation and execution of a search warrant, law enforcement found and seized various items at Defendant’s home, including thirty-seven (37) USB flash drives, an Amazon tablet, computer equipment and three cameras in seemingly hidden positions located in the bathroom and bedroom and other cameras. After forensic evaluation of the items seized from Defendant’s home, investigators are alleged to have identified at least four separate victims, all under age at the time of the purported acts, of which Defendant either photographed or videotaped in various stages of undress, as well as, Defendant engaging in sexual acts while the victims were unconscious. The acts are alleged to have occurred between 2010 and 2018.

In action number CP-38-CR-1923-2018, Defendant is charged with two (2) counts of involuntary deviate sexual intercourse (ISDI) with a child, two (2) counts of ISDI with an unconscious person, thirty (30) counts of sexual abuse of a child (videotaping sexual acts), thirty (30) counts of child pornography, four (4) counts of indecent assault of a person less than 13 years of age, two (2) counts of indecent assault of an unconscious person and thirty (30) counts of invasion of privacy.[1] The victim, D.P., is currently twelve (12) years old.

In action number CP-38-CR-2043-2018, Defendant is charged with thirty (30) counts of sexual abuse of a child (videotaping sexual acts), thirty (30) counts of child pornography and thirty (3) counts of invasion of privacy.[2] The victim, C.Y., is currently thirteen (13) years old, but was twelve (12) years old at the time of the alleged crimes.

In action number CP-38-CR-2069-2018, Defendant is charged with seventeen (17) counts of sexual abuse of a child (videotaping sexual acts), seventeen (17) counts of child pornography and seventeen (17) counts of invasion of privacy.[3] The victim, I.T., is currently fifteen (15) years old, but was fourteen (14) years old at the time that the alleged crimes were committed.

In action number CP-38-CR-121-2019, Defendant is charge with one count of ISDI with a person less than 16 years of age, twenty-three (23) counts of sexual abuse of a child (videotaping sexual acts), twenty-three (23) counts of child pornography and one count of indecent assault on a person less than 16 years of age.[4] The victim, K.S., is currently nineteen (19) years old, but was fifteen (15) years old at the time of the alleged crimes.

The Commonwealth originally filed its Notice of Consolidation on December 17, 2018, seeking to consolidate the first three actions for trial. Defendant filed a Motion to Sever on December 28, 2018. On January 8, 2019, the Commonwealth filed a second Notice of Consolidation including action number CP-38-CR-121-2019. A hearing was scheduled for February 13, 2019 on the Commonwealth’s Notice of Consolidation and on Defendant’s Motion to Sever. At the conclusion of the hearing, we ordered that both parties should file briefs of their respective positions within thirty (30) days. The Commonwealth filed its brief in opposition to the Motion to Sever on March 13, 2019. Defendant filed his brief in support of the Motion to Sever on March 15, 2019. The matter is thus before this Court and ripe for disposition.

DISCUSSION

Our Rules of Criminal Procedure provide in relevant part that “Offenses charged in separate indictments or informations may be tried together if: (a) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion; or (b) the offenses charged are based on the same act or transaction. Pa.R.Crim.P. 582. Furthermore, Pa.R.Crim.P. 583, entitled “Severance of Offenses and Defendants,” provides that “[t]he court may order separate trials of offenses or defendants, or provide other appropriate relief, if it appears that any party may be prejudiced by offenses or defendants being tried together.”

 

 

  1. Legal Standard

In addressing a motion for severance, “[t]he critical consideration is whether [a defendant is] prejudiced by the trial court’s decision not to sever.” Commonwealth v. Mollett, 5 A.3d 291, 305 (Pa.Super. 2010). Such prejudice has been defined as “that which would occur if the evidence tended to convict [a defendant] only by showing his propensity to commit crimes, or because the jury was incapable of separating the evidence or could not avoid cumulating the evidence.” Commonwealth v. Boyle, 733 A.2d 633, 637 (Pa.Super. 1999).

Where the defendant moves to sever offenses not based on the same act or transaction that have been consolidated in a single indictment or information, or opposes joinder of separate indictments or informations, the court must therefore determine: [1] whether the evidence of each of the offenses would be admissible in a separate trial for the other; [2] whether such evidence is capable of separation by the jury so as to avoid danger of confusion; and, if the answers to these inquiries are in the affirmative, [3] whether the defendant will be unduly prejudiced by the consolidation of offenses.

Commonwealth v. Collins, 703 A.2d 418, 422 (Pa. 1997)(citing Commonwealth v. Lark, 543 A.2d 491, 496–97 (Pa. 1988). Therefore, we must evaluate each factor in order to determine whether the matters should be consolidated or severed from each other for purposes of trial.

  1. Admissibility of Evidence in Separate Trials

Evidence of distinct crimes is not generally admissible against a defendant being prosecuted for another crime solely to the effect of showing the defendant’s bad character or his propensity for committing criminal acts. Commonwealth v. Boyle, 733 A.2d 633, 636 (Pa.Super. 1999). However, as an exception to the general rule, evidence of other crimes may 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.

Id. Evidence of other crimes may also be admissible under the res gestae exception, whereby “such evidence was part of the chain or sequence of events which became part of the history of the case and formed part of the natural development of the facts.” Commonwealth v. Lark, 543 A.2d 491, 497 (Pa. 1988)(citations omitted); Commonwealth v. Solano, 129 A.3d 1156, 1178 (Pa. 2015).

Defendant argues that the crimes in the matters sub judice are not so distinctive or unusual so as to be identified as “signature” to Defendant. In support thereof, Defendant cites to the Pennsylvania Supreme Court case of Commonwealth v. Bryant, 530 A.2d 83 (Pa. 1987), in which the Court found the similarity between two criminal acts must be more “than the mere repeated commission of the same general class of crime,” which might be “confined to relatively insignificant details that would likely be common elements regardless of who had committed the crimes.” Bryant, 530 A.2d at 86. Defendant contends that evidence of the alleged crimes would therefore not be admissible in the trial for the other matters.

First, the Commonwealth argues that the evidence would be admissible in all actions under a common scheme theory. In regards to such, the Superior Court has stated:

When ruling upon the admissibility of evidence under the common plan exception, the trial court must first examine the details and surrounding circumstances of each criminal incident to assure that the evidence reveals criminal conduct which is distinctive and so nearly identical as to become the signature of the same perpetrator. Relevant to such a finding will be the habits or patterns of action or conduct undertaken by the perpetrator to commit crime, as well as the time, place, and types of victims typically chosen by the perpetrator. Given this initial determination, the court is bound to engage in a careful balancing test to assure that the common plan evidence is not too remote in time to be probative. If the evidence reveals that the details of each criminal incident are nearly identical, the fact that the incidents are separated by a lapse of time will not likely prevent the offer of the evidence unless the time lapse is excessive. Finally, the trial court must assure that the probative value of the evidence is not outweighed by its potential prejudicial impact upon the trier of fact. To do so, the court must balance the potential prejudicial impact of the evidence with such factors as the degree of similarity established between the incidents of criminal conduct, the Commonwealth’s need to present evidence under the common plan exception, and the ability of the trial court to caution the jury concerning the proper use of such evidence by them in their deliberations.

Commonwealth v. G.D.M., Sr., 2007 PA Super 169, ¶ 5, 926 A.2d 984, 987 (Pa.Super. 2007). The similarity of victims and location of where the crimes occurred is to be considered in conjunction with any remoteness in time lapse between the crimes. Commonwealth v. O’Brien, 836 A.2d 966, 971 (Pa.Super. 2003).

We first begin by examining the victims involved. All of the victims were female. Two of the victims were twelve (12) years old when the alleged crimes occurred and the other two victims were fourteen (14) years old and fifteen (15) years old respectively. The current ages of the victims are between twelve years old and nineteen years old. There is a definite similarity in the ages of the victims, especially at the time that the alleged crimes were committed.

Additionally, all four actions involve pictures and/or videos of the victims changing clothing and in various stages of undress to complete nudity. Certainly, sexual crimes of the nature in these actions would generally comprise pictures or videos of children being nude or in stages of undress. However, when viewed in tandem with the location, as discussed below, this demonstrates a pattern of Defendant’s crimes.

The pictures and videos recovered by law enforcement depict the victims in Defendant’s bedroom or bathroom. Not only are the pictures and videos from Defendant’s home, but all seem to have been captured using the hidden cameras recovered from those specific areas.

While the crimes are alleged to have occurred between 2010 and 2018, representing an eight-year period, we don’t find that this is excessive as the conduct, though with the four different victims, appears to have been ongoing throughout the period of time. Moreover, remoteness in time, though important, is but one factor, which may be considered as inversely proportional to the similarity of the crimes in question. Commonwealth v. Miller, 664 A.2d 1310, 1319 (Pa. 1995) abrogated on other grounds as recognized in Commonwealth v. Hanible, 836 A.2d 36 (Pa. 2003). We find that any lapse between the evidence is not so remote as to render the evidence of the other crimes inadmissible. Weighing all of the factors of admissibility, we find that the evidence would be admissible to demonstrate a common scheme.

While we find that the evidence is admissible under a common scheme theory, we also examine the res gestae exception that the Commonwealth likewise presents. All of the actions are the result of a search executed upon a complaint from the mother of D.P. In order to provide a complete picture of the natural progression of the events in all of the matters, the factual background leading to the search of Defendant’s home will have to be presented to the jury. Withholding such facts would certainly create confusion with the jury as to how law enforcement would have justification in the search and seizure of the evidence.

Finally, some of the videos recovered allegedly depict Defendant setting up the hidden cameras that were later used to capture the images and videos of the victims. Clearly the evidence lends itself to the identification of Defendant. Having found that the evidence of each crime would be admissible in the other matters, we must move to the next prong of the test.

  1. Capability of the Jury to Separate the Evidence to Avoid Confusion

The second prong of the test involves whether the evidence presented in each matter “is capable of separation by the jury so that there is no danger of confusion.” Lark, 543 A.2d at 496. Generally, “[w]here a trial concerns distinct criminal offenses that are distinguishable in time, space and the characters involved, a jury is capable of separating the evidence.” Collins, 703 A.2d at 423.

Defendant next argues that the second prong of the test would not be fulfilled as the jury would not be capable of separating the evidence in order to avoid confusion. Defendant cites to Commonwealth v. Peterson, 307 A.2d 264 (Pa. 1973), in which the Pennsylvania Supreme Court, examining jury confusion as to evidence, cited Judge Learned Hand in United States v. Lotsch, 102 F.2d 35 (2d Cir. 1939), cert. denied, 307 U.S. 622 (1939) stating that:

When the accused’s conduct on several separate occasions can be properly examined in detail, the objection disappears, and the only consideration is whether the trial as a whole may not become too confused for the jury. . . . Here we can see no prejudice from joining the three charges: the evidence as to each was short and simple; there was no reasonable ground for thinking that the jury could not keep separate what was relevant to each.

Id. at 36. Defendant contends that the mere volume of evidence present in these matters, including eighty-three (83) separate videos, is not so short and simple enough, or distinguishable, that it can be easily separated by the jury.

We disagree with Defendant’s contention. The Commonwealth is presenting four victims and has charged Defendant with three hundred thirteen (313) counts. Clearly there will be a voluminous amount of evidence in order to substantiate the counts. However, there is no indication that the evidence overlaps as to the depiction of the victims. We are confident that the jury will be able to separate the evidence between the victims as it so pertains and therefore avoid any danger of confusion.

  1. Prejudice to Defendant of Consolidation

While we find that the evidence of each offense is admissible as to the other offenses at trial and that the jury would be able to separate the evidence so that there is no danger of confusion, we “must also consider whether consolidation would unduly prejudice the defendant.” Commonwealth v. Knoble, 188 A.3d 1199, 1205 (Pa.Super. 2018), appeal denied, 198 A.3d 332 (Pa. 2018). “Additionally, the admission of relevant evidence connecting a defendant to the crimes charged is a natural consequence of a criminal trial, and it is not grounds for severance by itself.” Commonwealth v. Lauro, 819 A.2d 100, 107 (Pa.Super. 2003)(citing Commonwealth v. Collins, 703 A.2d 418, 422 (Pa. 1997)).

Defendant argues that the evidence of the separate offenses as presented by the Commonwealth “can only be viewed as showing that Defendant has a propensity to commit crime.” (Def.’s Br. 6). Defendant further contends that the sheer volume of evidence will not only prevent the jury from easily separating the evidence, but also supports the danger that the jury will be unable to avoid cumulating the evidence. Defendant claims that the only way to avoid such an effect is to sever the cases and try them separately.

Again, we do not disagree with Defendant that there is a sizable amount of evidence that the Commonwealth will potentially present to the jury. However, we do not believe that this fact alone is dispositive of whether Defendant would suffer undue prejudice. The evidence presents four distinct victims and though there is significant evidence, we do not believe that the jury is incapable of separating he evidence as to each offense, or to avoid cumulating the evidence. Furthermore, the evidence represents the distinct offenses of which Defendant is accused and is not merely aggregate evidence. We find no prejudice in allowing these cases to continue as consolidated. Therefore, we deny Defendant’s Motion to Sever.

 

[1] 18 Pa.C.S.A. § 3123(b); 18 Pa.C.S.A. § 3123(a)(3); 18 Pa.C.S.A. § 6312(b); 18 Pa.C.S.A. § 6312(d)(1); 18 Pa.C.S.A. § 3126(a)(7); 18 Pa.C.S.A. § 3126(a)(4); 18 Pa.C.S.A. § 7507.1(a)(1).

[2] 18 Pa.C.S.A. § 6312(b); 18 Pa.C.S.A. § 6312(d)(1); 18 Pa.C.S.A. § 7507.1(a)(1).

[3] 18 Pa.C.S.A. § 6312(b); 18 Pa.C.S.A. § 6312(d)(1); 18 Pa.C.S.A. § 7507.1(a)(1).

[4] 18 Pa.C.S.A. § 3123(a)(7); 18 Pa.C.S.A. § 6312(b); 18 Pa.C.S.A. § 6312(d)(1); 18 Pa.C.S.A. § 3126(a)(8).

About the author

Lebanon County Legal Journal has written 669 articles for Lebanon County Legal Journal

Search