Judges Opinions Public Notices, — October 16, 2019 12:08 — 0 Comments

Public Notices, October 2, 2019

Volume 57, No. 9

 

 

PUBLIC NOTICES

DECEDENTS’ ESTATES

ORPHANS’ COURT DIVISION NOTICES

NOTICE OF ACTION TO QUIET TITLE

STAFF ATTORNEY JOB ADVERTISEMENT

 

TABLE OF CONTENTS

Commonwealth of Pennsylvania v. Robert Hugh Kime

 

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 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

 

SECOND 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

 

 

THIRD PUBLICATION

 

ESTATE OF JOHN D. HAAG, JR. a/k/a JOHN DAVID HAAG, JR., late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.

 

Margaret A. Haag, Administratrix

 

Charles A. Ritchie, Jr., Esquire

Feather and Feather, P.C.

22 West Main Street

Annville, PA 17003

 

ESTATE OF DOYLE R. ZECHMAN, late of Palmyra Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Ian D. Zechman, Co-Executor

 

Melissa M. Faber, Co-Executrix

 

Gerald J. Brinser, Esquire

PO Box 323

Palmyra, PA 17078

 

ESTATE OF MARGARET J. SHAW, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Donald R. Witman

123 Lafiya Drive

Palmyra, PA 17078

 

Daryl J. Gerber, Esquire

The Law Office of Daryl J. Gerber

46 E. Main Street

Palmyra, PA 17078

 

ESTATE OF JAY O. MACK, a/k/a JAY ORD MACK, JR., late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been grated to the undersigned Executrix.

 

Nyla Mack Houser, Executrix

 

Renata T. Pabisz, Esquire

Dorian, Goldstein, Wisniewski & Orchinik, P.C.

Neshaminy Valley Commons

2410 Bristol Road

Bensalem, PA 19020

 

ESTATE OF ARDELL J. SCHOCK, late of West Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Darrell R. Schock, Co-Executor

2506 Speckled Drive

East Petersburg, PA 17520

 

David A. Schock, Co-Executor

132 Sportsman Lane

Manheim, PA 17545

 

Sean D. Curran, Esquire

Curran Estate Law

222 N. Kenhorst Blvd

Reading, PA 19607

 

ESTATE OF RUTH M. SONNEN, late of Richland Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Malcolm J. Sonnen, Executor

101 Sonnens Road

Richland, PA 17087

 

Timothy T. Engler, Esquire

Steiner & Sandoe, Attorneys

36 W. Main Avenue

Myerstown, PA 17067

 

ESTATE OF SHIRLEY E. MARTIN, late of Palmyra Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been grated t the undersigned Co-Executors.

 

Robert L. Martin, Co-Executor

 

Lisa E. Vonanda, Co-Executrix

 

Gerald J. Brinser, Esquire

PO Box 323

Palmyra, PA 17078

 

ESTATE OF MARGARET B. BRAZELL, late of Palmyra Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Donna B. Swope, Executrix

 

Stacey W. Betts, Esquire

75 E. Main Street

Mount Joy, PA 17552

 

ORPHANS’ COURT DIVISION NOTICES

 

Court of Common Pleas of Lebanon County

Orphans’ Court
Division Notices

Notice is hereby given that the following accounts in decedents estates, guardianships and trusts have been filed in the Office of the Register of Wills and Clerk of Orphans’ Court of Lebanon County, and that the same will be presented of the Court of Common Pleas-Orphans’ Court Division of said County for confirmation NISI on

MONDAY, October 7, 2019

At 10:00 A.M.

in Courtroom No. 1, Municipal Building, City of Lebanon

 

FIRST AND FINAL ACCOUNTS WITH PROPOSED SCHEDULE OF DISTRIBUTION FILED BY EXECUTORS OR ADMINISTRATORS

  1. Miller, Richard S., dec’d., Stephanie M. Drobnick, Exrx., George E. Christianson, Atty.
  2. Edwards, Earl L., aka Edwards, Earl, dec’d., Jill D. Edwards, Exrx, Terence J. Barna, Atty.

 

All of the aforesaid accounts and statements of Proposed Distribution will be confirmed ABSOLUTELY as of course by the said Orphans’ Court except those to which exemptions are filed within twenty (20) days after the same are confirmed NISI.

BRIAN CRAIG

REGISTER OF WILLS AND CLERK OF ORPHANS’ COURT

LEBANON COUNTY, PENNSYLVANIA

 

NOTICE OF QUIET TITLE

 

In the Court of Common Pleas of Lebanon County, PA, Civil Action – Law No. 2019-01578

JONESTOWN BANK & TRUST CO., Plaintiff vs. THE KNOWN AND UNKNOWN HEIRS OF MARTHA H. KOON, SUCCESSORS AND ASSIGNS, AND ALL PERSONS, FIRMS, OR ASSOCIATIONS CLAIMING RIGHT, TITLE OR INTEREST FROM OR UNDER MARTHA H. KOON, DECEASED, Defendants

Notice is given that Jonestown Bank & Trust Co. has filed an Action to Quite Title on September 4, 2018 to terminate all rights that you may have on the property located at 2005 Leslie Avenue, Lebanon, Lebanon County, PA 17042.

Notice to Defendants, The Known and Unknown Heirs of Martha H. Koon, et. al.: You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within 20 days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you.

You should take this paper to your lawyer at once. If you do not have a lawyer, go to or telephone the office set forth below. This office can provide you with information about hiring a lawyer. If you cannot afford to hire a lawyer, this office may be able to provide you with information about agencies that may offer legal services to eligible persons at a reduced fee or no fee.

MidPenn Legal Services. 513 Chestnut Street, Lebanon, PA 17042. Telephone: (717) 274-2834

 

 

Staff Attorney

 

Schuylkill Women in Crisis, a private non-profit organization in Pottsville, PA seeks a full-time staff attorney to provide legal services to victims of domestic abuse. Responsible for handling various family law matters including, but not limited to child and spousal support, custody, divorce, as well as landlord/tenant issues, etc.

QUALIFICATIONS: Law degree from accredited school and license to practice in PA. At least one year of family law experience preferred. Spanish-speaking or bilingual helpful. Must clear child abuse, criminal background, driving record, and FBI background checks.

CANDIDATES SHOULD SUBMIT: Cover letter, resume, and writing sample to: President/CEO, SWiC, P.O. Box 96, Pottsville PA 17901 or swicagency@comcast.net by 12 pm October 15, 2019.

BENEFITS: Health, dental, and vision insurance and retirement plan.

EOE

 

Commonwealth of Pennsylvania v. Robert Hugh Kime

 

Criminal Action-Law-Evidence-Sexual Offenses-Prior Bad Acts-Admissibility-Motive-Common Scheme-Probative Value-Unfair Prejudice-Remoteness in Time-History of the Case-Consolidation for Trial

 

Defendant was charged with offenses at two (2) criminal action numbers relating to sexual acts alleged with regard to two (2) different grandchildren. The charges at one (1) action number involved alleged touching of a thirteen (13) year old grandson’s penis, and the charges at the other action number involving an alleged prolonged course of sexual misconduct with another grandson that occurred ten (10) years earlier. The Commonwealth filed a motion to join the charges at both action numbers for trial and to seek permission to introduce the facts of each case in the other case on the basis that they showed common motive, intent, scheme or plan. Defendant argued that admission of the facts with regard to the charges at the separate action numbers was inadmissible because the same suggested that the claimant has a propensity to commit sexual assault.

 

  1. Pa.R.E. Rule 404(b) provides that evidence of propensity is inadmissible to show that a defendant acted in conformity with a prior bad act.

 

  1. Pa.R.E. Rule 404(b)(2) provides that evidence of propensity may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or lack of evidence. In such a situation in a criminal case, the evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice.

 

  1. Where the uncorroborated testimony of the alleged victim reasonably might lead a jury to determine that reasonable doubt exists as to whether the defendant committed the crime charged, it is fair to conclude that the other crimes evidence is necessary for the prosecution of the case and is not unduly prejudicial, as it is required for the Commonwealth’s case.

 

  1. While remoteness in time is a factor to be considered in determining the probative value of other crimes evidence under the theory of common scheme, plan or design, the importance of the time period inversely is proportional to the similarity of the crimes in question.

 

  1. A special circumstance where evidence may be relevant and admissible exists where 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.

 

  1. In light of the fact that the investigation into the allegations of inappropriate touching of the thirteen (13) year old grandchild led to the charges at the other action number with regard to the other grandchild that were alleged to have occurred ten (10) years before, the other grandchild indicated that he made the decade-late allegations because he was trying to protect the thirteen (13) year old grandchild from similar abuse and both victims are young boys with a familial relationship to Defendant with allegations of actions that took place in the familial home under similar circumstances, the allegations with regard to the charges against the thirteen (13) year old grandson is a necessary part of the history of the allegations with regard to the other grandson such that the factual progression is parallel and inseparable.

 

  1. As Defendant made his lack of motive central to the defense with regard to the charges involving the thirteen (13) year old grandson, the actions alleged to have occurred ten (10) years before with regard to the other grandson are relevant and probative with regard to Defendant’s motive or lack thereof.

 

  1. Since the testimony of each victim is relevant with regard to the facts of the case involving the other victim, the testimony of both grandchildren is important based upon Defendant’s denial of a motive and the probative value of the testimony far exceeds is prejudicial effect, the testimony of each victim is admissible in the case involving the other victim.

 

  1. The cases appropriately may be consolidated for trial pursuant to Pa.R.Crim.P. Rule 582(A), as the evidence of each offense would be admissible in a separate trial for the other, the evidence is capable of separation by the jury so as to avoid danger of confusion and Defendant will not be unduly prejudiced by the consolidation of offenses.

 

L.C.C.C.P. Nos. CP-38-CR-0000844-2018 and CP-38-CR-0001361-2018, Opinion by Bradford H. Charles, Judge, January 2, 2019.

 

 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

 

CRIMINAL DIVISION

 

COMMONWEALTH OF PENNSYLVANIA:    

:           No. CP-38-CR-0844-2018

  1. :           No. CP-38-CR-1361-2018                                                                                         :          

ROBERT HUGH KIME                                          :          

 

 

ORDER OF COURT

 

AND NOW, this 2nd day of January, 2019, after consideration of the briefs proffered by the parties, the Objection of DEFENDANT to the Commonwealth’s Motion to Introduce Evidence of Prior Bad Acts of DEFENDANT and combine Cases for Trial is hereby OVERRULED. The Motion to Introduce Evidence of Prior Bad Acts of DEFENDANT and to Combine the Cases for Trial is hereby GRANTED. The DEFENDANT is directed to appear for a Criminal Call of the List on January 8, 2019. He is also directed to appear for first day of trials on January 28, 2019.

 

 

 

 

 

 

 

BY THE COURT:

 

BRADFORD H. CHARLES

 

cc:        District Attorney’s Office
William M. Davis, Esq.// 1845 Walnut Street, 19th Floor, Philadelphia, PA 19103
Robert Kime // 30 Cottage Drive, Myerstown PA 17067

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

 

 

 

CRIMINAL DIVISION

 

COMMONWEALTH OF PENNSYLVANIA:    

:           No. CP-38-CR-0844-2018

  1. :           No. CP-38-CR-1361-2018                                                                                         :          

ROBERT HUGH KIME                                          :          

 

APPEARANCES

Megan E. Ryland-Tanner, Esquire For Commonwealth of Pennsylvania

DISTRICT ATTORNEY’S OFFICE      

 

William M. Davis, Esquire                For Robert Hugh Kime

MCMONAGLE PERRI MCHUGH & MISCHAK, P.C.

 

 

OPINION BY CHARLES, J., January 2, 2019

 

Before the Court is the DEFENDANT’s Objection to the Commonwealth of Pennsylvania’s Motion to Introduce Evidence of Prior Bad Acts and to combine the Cases for Trial. DEFENDANT has been charged with a number of offenses. On CR-0844-2018, DEFENDANT is accused of grabbing his grandson’s penis inappropriately. On CR-1361-2018, DEFENDANT is accused of a prolonged course of sexual misconduct with another grandson. The Commonwealth seeks to introduce the testimony of each grandson in the other grandson’s case. DEFENDANT argues this is invalid propensity evidence. The Commonwealth argues that the evidence fits an exception of the Prior Bad Acts exclusionary rule. For the reasons outlined bellows, we agree with the Commonwealth.

 

  1. FACTS & PROCEDURAL HISTORY

On April 11, 2018, the DEFENDANT was charged on CR-0844-2018 with Endangering the Welfare of Children[1], Corruption of Minors[2], two counts of Indecent Assault[3], and a summary Harassment[4]. On May 15, 2018, as a result of the investigation into those charges, Trooper Miller of the Jonestown Police Department discovered additional evidence of a separate victim and unique criminal behavior, and subsequently filed additional charges under CR-1361-2018. These were Involuntary Deviate Sexual Intercourse[5], Sexual Assault[6], Endangering the Welfare of Children[7], Corruption of Minors[8], and three counts of Indecent Assault[9]. On September 12, 2018, the Commonwealth filed a Motion to include the facts of each case in the other, and to combine the two trials. On or about October 11, 2018, DEFENDANT filed objections to the Commonwealth’s Motion. The victim in CR-0844-2018 is DEFENDANT’s 13-year-old grandson, J.M. It is alleged in this docket that DEFENDANT touched J.M.’s penis.

 

DEFENDANT argues that this was not for the purpose of sexual gratification , but to illustrate a disciplinary point. DEFENDANT told Trooper Miller, in his defense, that “I don’t do boys, thank you.”

 

During his investigation into the J.M. matter, Trooper Miller interviewed another grandchild, J.B. J.B. alleged that DEFENDANT had touched his penis and engaged in oral sexual intercourse with him 10 years previously when he was between the ages of 5 and 13. J.B. stated clearly that he was now coming forward out of concern for J.M. Je also stated that his own abuse had begun with similar touching.

 

  1. LEGAL STANDARD AND ANALYSIS

 

  • Prior Bad Acts Evidence

 

The Commonwealth argues that the victim testimony of each case, which forms the entirety of the evidence against the DEFENDANT, should be admitted in the other matter to show a common motive, intent, scheme or plan between the two. The DEFENDANT argues that this is inadmissible propensity evidence meant to show that because the DEFENDANT sexually assaulted one victim, he must have assaulted the other.

While Pennsylvania Rule of Evidence 404(b) states that evidence of propensity is inadmissible to show that the Defendant acted in conformity with the prior bad act, 404(b)(2) states:

The evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. In a criminal case this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice.

The concept of prior bad acts has been addressed on multiple occasions by our appellate courts. These courts have employed a two-step analysis. Step one requires us to ascertain if the other criminal acts are relevant to prove motive, intent, common scheme, plan, design or absence of mistake. Commonwealth v. Rogers, 615 A.2d 55 (Pa. Super. 1992) Step two requires us to balance “the relevancy and evidentiary need” for the evidence against its potential for “undue prejudice”. Com. v. O’Brien, 836 A. 2d 966,972 (Pa. Super. 2003).

Where “the uncorroborated testimony of the alleged victim… might reasonably lead a jury to determine that there was a reasonable doubt as to whether [the Defendant] committed the crime charged, it is fair to conclude that the other crimes evidence is necessary for the prosecution of the case… it is not unduly prejudicial, as it is required for the Commonwealth’s case.” Commonwealth v. Gordon, 673 A.2d 866, 870 (Pa. 1996).   “While remoteness in time is a factor to be considered in determining the probative value of other crimes evidence under the theory of common scheme, plan or design, the importance of the time period is inversely proportional to the similarity of the crimes in question.” Commonwealth v. Miller, 664 A.2d 1310, 1319 (Pa. 1995). A “special circumstance where evidence may be relevant and admissible is where 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. Buchanan, 689 A.2d at 930, 933 (Pa. Super. 1997). One indicator of validity is “where evidence became part of the history of the event on trial, or was part of the natural development of facts.” Commonwealth v. Brown, 342 A.2d 84, 90 (Pa. 1975).

Evidence that a defendant had sexually abused his older daughter was admissible at trial to show that he had raped his younger daughter despite a significant time delay between the two events. Commonwealth v. Aikens, 990 A. 2d 1181 (Pa. Super, 2010). Evidence that a man had sexually assaulted two minor boys was admissible to show that the Defendant had sexually assaulted a third boy, also despite time delays comparable to the current matters at bar. Commonwealth v. O’Brien, 836 A.2d 966 (Pa. Super. 2003). Evidence that a Defendant had robbed and attempted to rape the victim prior to her murder were admitted “for the limited purpose of showing appellant’s motive for killing Ms. Myers”. Commonwealth v. Dowling, 883 A. 2d 570, 578 (Pa. 2005). Evidence about a pattern of domestic abuse committed by a Defendant upon the murder victim and repeated violation of PFA Orders were admissible to show the “sequence of events which formed the history of the case” as well as to establish “motive, malice, intent and ill-will toward the victim”. Commonwealth v. Jackson, 900 A.2d 936 (Pa. Super. 2006). Evidence of the Defendants’ involvement in manufacturing and selling methamphetamine was admissible to establish motive and to explain “why Melson would intentionally kill a complete stranger”. Commonwealth v. Melson, 637 A.2d 633 (Pa. Super. 1994). Evidence that the Defendant surveilled drug houses of rivals and collected money for protecting them was relevant to establish motive. The Court commented that “without the introduction of this evidence, there would be no apparent link between appellant and the victims”. Commonwealth v. Rogers, 615 A. 2d 55 (Pa. Super. 1992).

The narrative involved in the J.B. matter is inextricable from the J.M. matter. The investigation into the J.M. matter literally spawned the J.B. matter. In the J.B. matter, the entire explanation for his decade-late allegations is that he is now trying to protect J.M. The J.B. matter comes down to a credibility determination between J.B. and the DEFENDANT. J.B.’s believability hinges on including the narrative that he is coming forward now, a decade later, to protect J.M. from similar abuse. J.M.’s allegations are a necessary part of the history of the J.B. matter. Both victims were young boys with a familial relationship to the DEFENDANT. Both allegations take place in the familial home under similar circumstances. J.B. alleges that his abuse began like the abuse described by J.M. The factual progression is parallel and inseparable.

Likewise, DEFENDANT has made his lack of motive central to his defense on the J.M. matter. His strategy on the J.M. matter is to admit the touching but claim that the touching was benign because he has no sexual interest in it. The existence or non-existence of motive is the issue on the J.M. matter. This reinforces the importance of J.B.’s testimony that DEFENDANT displayed sexual interest in him. In fact, J.B.’s testimony directly refutes DEFENDANT’s statement: “I don’t do boys, thank you.”

The probative value of this evidence cannot be overstated. Child sexual abuse is inherently difficult because it involves high emotion and because it almost always occurs behind closed doors. There are rarely witnesses outside of the victims. There are issues of shame and fear that are only exacerbated where the victims are children. Often a purported lack of motive is a primary defense, especially when the defendant is married and the children are of the same sex.

In this case, we reach the following conclusion:

  • The testimony of J.B. is relevant in the case involving J.M.
  • The testimony of J.M. is relevant in the case involving J.B.
  • The testimony of both boys is especially important given that the DEFENDANT denies motive by stating: “I don’t do boys, thank you.”
  • The probative value of the testimony proffered by the Commonwealth far exceeds its prejudicial effect.

Accordingly, we hold that the testimony of both J.B. and J.M. should be admissible in the case involving the other boy.

 

 

 

  • Case Consolidation

 

The Commonwealth also seeks to have these two matters consolidated for trial. Pursuant to Pennsylvania Rule of Criminal Procedure 582(A). Pa.R.C.P 582 stated:

Offenses charged in separate indictments or informations may be tried together if:

  • 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

The appropriate test for consolidation is as follows:

 

The Court… 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). The undue prejudice standard is the same under Pa.R.C.P. 582 as it is under Pa.R.E. 404(b), described above. See Commonwealth v. Smith, 47 A.3d 862, 867.

Thus, prongs (1) and (3) of the Collins standard are satisfied by our analysis in Section II A., above. The DEFENDANT’s argument regarding the remaining prong, danger of confusion, is spurious at the most. J.M.’s claims hinge on the explicitly sexual nature of J.B.s allegations. J.B.’s credibility hinges on the narrative that he is only now coming forward because of J.M.’s allegations. There is really only one Commonwealth narrative her, inextricably and linearly connected with the exact same evidence. We therefore conclude that a jury could easily separate its analysis of the charges including both victims. Stated differently, there is no danger of jury confusion. Thus prong (2) is also satisfied.

 

III.   CONCLUSION

It is clear that J.B.’s testimony should be allowed in the J.M. matter to establish the DEFENDANT’s motive. J.M.’s testimony should be allowed in the J.B. matter because it explains J.B.’s new willingness to testify against the DEFENDANT. It is clear that while their testimony is prejudicial in both matters, it is not unduly prejudicial next to the absolutely essential probative value that each testimony evinces. Accordingly, we conclude that the two-above-captioned dockets should be tried together. By an order entered simultaneous with this opinion, we will so order that consolidation.

 

 

[1] Pursuant to 18 Pa.C.S. § 4304(a)(1).

[2] Pursuant to 18 Pa.C.S. § 6301(a)(1)(i).

[3] Pursuant to 18 Pa.C.S. § 3126(a)(1).

[4] Pursuant to 18 Pa.C.S. § 2709(a)(1).

[5] Pursuant to 18 Pa.C.S. § 3123(a)(7).

[6] Pursuant to 18 Pa.C.S. § 3124.1.

[7] Pursuant to 18 Pa.C.S. § 4304(a)(1).

[8] Pursuant to 18 Pa.C.S. § 6301(a)(1)(i).

[9] Pursuant to 18 Pa.C.S. § 3126(a)(1).

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