Com. v. Smith, V.

J-A11035-24


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
 VICTOR CHARLES SMITH                     :
                                          :
                     Appellant            :   No. 919 MDA 2023

          Appeal from the Judgment of Sentence Entered April 21, 2023
               In the Court of Common Pleas of Lancaster County
              Criminal Division at Nos: CP-36-CR-0004552-2021,
                            CP-36-CR-0005082-2020


BEFORE: BOWES, J., STABILE, J., and MURRAY, J.

MEMORANDUM BY STABILE, J.:                      FILED: NOVEMBER 1, 2024

      Appellant, Victor Charles Smith, seeks review of the judgment of

sentence entered by the Court of Common Pleas of Lancaster County (trial

court).    Following a jury trial, Appellant was found guilty of sex offenses

against two minor children (K.C. and D.H.), whose individual cases were

consolidated for trial purposes. He was then sentenced to an aggregate prison

term of 16 to 35 years and designated as a Sexually Violent Predator. On

appeal, Appellant contends that relief is due because (1) the trial court

erroneously admitted into evidence prior bad acts alleged by a third victim

(A.H.), and (2) the trial court erred in denying his motion to sever the cases

of K.C. and D.H.      Finding merit in Appellant’s first issue, we vacate the

judgment of sentence and remand for a new trial on that ground.
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     In 2020, K.C. (then 16 years of age) reported to her adoptive mother,

Amanda Keeler, that she had been sexually abused by Appellant on multiple

occasions over a period of several years. Keeler then spoke to her three other

children to learn whether any of them had also been sexually abused by

Appellant. One of Keeler's other children, D.H., who was 13 years old at that

time, reported one such incident when he had been between five and seven

years old. Both children claimed that the offenses had occurred during their

overnight stays in Appellant’s home in Lancaster County, Pennsylvania.

     Keeler contacted the children’s uncle, A.H., to discuss what K.C. and

D.H. had told her. A.H., in turn, relayed those the allegations to the police,

and when doing so, he disclosed his own single incident of abuse that had

allegedly occurred in Appellant’s Delaware home about 17 year earlier, when

A.H. was six or seven years old – he was about 23 years old when K.C. came

forward.

     Appellant was charged with sex crimes against K.C. and D.H., and the

cases of the two minors were consolidated. There was no physical evidence

that incriminated Appellant or otherwise corroborated the accounts of K.C.

and D.H.    To help prove Appellant’s guilt as to those two victims, the

Commonwealth sought to admit into evidence the allegations of A.H. as prior

bad acts under Pennsylvania Rule of Evidence 404(b)(2). The Commonwealth




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asserted that the prior bad acts detailed by A.H. established that Appellant

had a common plan or scheme to sexually molest the children in his family. 1

       Prior to trial, Appellant moved to sever the cases of K.C. and D.H.,

arguing that trying them together would be unduly prejudicial because the

alleged circumstances of the offenses against each child were not relevant to

the other. Appellant also contended that A.H.’s allegations should be excluded

from the evidence because they would be improperly used by the

Commonwealth to suggest that Appellant had a propensity to sexually abuse

children. The trial court denied the severance motion, and ruled that A.H.’s

testimony would be admissible. A.H. went on to testify regarding the incident

in Delaware which he had reported to the police.2

       As to the charges relating to K.C., the jury found Appellant guilty of one

count of rape of a child; one count of involuntary deviate sexual intercourse

with a child; one count of unlawful contact with a minor; one count of

corruption of minors; and one count of indecent assault of a person less than

13 years of age. As to the charges relating to D.H., the jury found Appellant



____________________________________________


1 The record reflects that, as of the date of Appellant’s trial in Pennsylvania,

there was a pending criminal case in Delaware, where A.H. was the alleged
victim.

2 The trial court instructed the jury that A.H.’s testimony was presented for

the limited purpose of proving a common plan or scheme to commit the
charged offenses against K.C. and D.H. The jury was also told not to regard
A.H.’s testimony as evidence that Appellant had a bad character or criminal
propensities. See N.T. Trial, 9/16/2022, at 469-70.

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guilty of one count of indecent assault of a person less than 13 years of age;

one count of corruption of minors; and one count of unlawful contact with a

minor.

       Appellant was sentenced as outlined above, and he filed a post-sentence

motion in which he argued that the admission of A.H.’s testimony and the

denial of severance were improper. The post-sentence motion was denied,

and Appellant timely appealed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925. In his brief, Appellant now raises two issues for our

consideration:

       [I] Whether the trial court committed a reversible error of law in
       its misapplication of the standard set forth in Pa.R.E. 404(b),
       specifically by permitting the introduction of A.H.'s testimony[.]

       [II] Did the trial court error in refusing to grant [Appellant’s]
       pretrial motion to sever the above-referenced dockets, which
       allowed the jury to be exposed to highly inflammatory
       incriminating evidence of another child sex related criminal
       offense involving a minor of the opposite sex?

Appellant’s Brief, at 6 (suggested answers omitted).

       In his first claim, Appellant asserts that the trial court erred in admitting

A.H.’s testimony regarding an alleged sexual assault in Delaware because the

circumstances of that incident contrasted with those described by K.C. and

D.H. According to Appellant, A.H.’s testimony was inadmissible under Pa.R.E.

404(b), as it constituted mere propensity evidence which deprived him of a

fair trial.




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      On review of a trial court’s ruling on the admissibility of evidence, this

Court applies an abuse of discretion standard.         See Commonwealth v.

Arrington, 86 A.3d 831, 842 (Pa. 2014).          “Evidence is admissible if it is

relevant – that is, if it tends to establish a material fact, makes a fact at issue

more or less probable, or supports a reasonable inference supporting a

material fact – and its probative value outweighs the likelihood of unfair

prejudice.”   Commonwealth v. Boczkowski, 846 A.2d 75, 88 (Pa.

2004) (internal citations omitted).

      Pennsylvania Rule of Evidence 404(b)(1) prohibits the use of prior bad

acts “to prove a person's character in order to show that on a particular

occasion the person acted in accordance with the character.”               Pa.R.E.

404(b)(1). Exceptions to that rule are enumerated in Rule 404(b)(2), which

allows evidence of prior bad acts to be admitted if used to prove a defendant’s

“opportunity, intent, preparation, plan, knowledge, identity, absence of

mistake, or lack of accident.”      Pa.R.E. 404(b)(2).     Further, in order for

evidence of other crimes to be admissible, its probative value must outweigh

its potential for unfair prejudice against the defendant. See id.

      It has long been recognized that caution is warranted when the

prosecution seeks to admit evidence of prior bad acts because it may so easily

be used to undermine the presumption of a defendant’s innocence.              See

Shaffner v. Commonwealth, 72 Pa. 60, 65 (Pa. 1872) (“It is not proper to

raise a presumption of guilt, on the ground, that having committed one crime,


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the depravity it exhibits makes it likely he would commit another.”); see also

Commonwealth v. Trowery, 235 A.2d 171, 172 (Pa. Super. 1967) (“The

presumed effect of such evidence is to predispose the minds of the jurors to

believe the accused guilty, and thus effectually to strip him of the presumption

of innocence.”).

       In Commonwealth v. Hicks, 156 A.3d 1114 (Pa. 2017), our Supreme

Court reaffirmed that prior bad act evidence is subject to stringent

admissibility requirements, especially where the prosecution relies on the

“common plan or scheme” exception of Rule 404(b)(2).             To satisfy this

exception, there must be a “striking similarity – or logical connection –

between the proffered prior bad acts and the underlying charged crime.”

Hicks, 156 A.3d at 1125 (emphases added).3

       This logical connection “must have existed in the mind of the actor,

linking them together for some purpose he intended to accomplish; or it must

be necessary to identify the person of the actor, by a connection which shows

that he who committed the one must have done the other.”            Id. (quoting

Shaffner, at 72 Pa. at 65).         Prior bad acts may be admissible if they are


____________________________________________


3 As discussed in the dissenting and concurring opinions of Hicks, the
“common plan or scheme” exception of Rule 404(b)(2) has often been
conflated in decisional law with the distinct “identity” (or modus operandi)
exception enumerated separately in that same rule. See Commonwealth v.
Hicks, 156 A.3d 1114, 1130-31 (Pa. 2017) (Saylor, J., concurring); see also
id., at 1143-44 (Donohue, J., dissenting). The Hicks majority seemed to
blend the two concepts together as alternative parts of a single exception, and
as the holding is binding, that approach has been applied here.

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“strikingly similar” to the alleged crimes, or committed in a way “so unusual

or distinctive as to be like a signature.” Hicks, 156 A.3d at 1125-26 (quoting

Commonwealth v. Rush, 646 A.2d 557, 560-61 (Pa. 1994)).                We have

compared a common plan to “a script or playbook of criminal tactics that

worked for the offender when committing past crimes.” Commonwealth v.

Cosby, 224 A.3d 372, 402 (Pa. Super. 2019), vacated on other grounds,

252 A.3d 1092 (Pa. 2021).

      These exceptions “cannot be stretched in ways that effectively eradicate

[Rule 404(b)(1)].” Commonwealth v. Ross, 57 A.3d 85, 104 (Pa. Super.

2012) (en banc). Indeed, “much more is demanded than the mere repeated

commission of crimes of the same class[.]” Hicks, 156 A.3d at 1126 (quoting

Rush, 646 A.2d at 561). “Rather, there must be such a high correlation in

the details of the crimes that proof that the defendant committed one makes

it very unlikely that anyone else but the defendant committed the others."

See Commonwealth v. Morris, 425 A.2d 715, 721 (Pa. 1981). The prior

bad acts must have a “close factual nexus sufficient to demonstrate the[ir]

connective relevance” to the charged crimes. Ross, 57 A.3d at 104.

      Factors that may establish the required similarity include “the elapsed

time between the crimes, the geographical proximity of the crime scenes, and

the manner in which the crimes were committed.” Commonwealth v.

Taylor, 671 A.2d 235, 240 (Pa. Super. 1996). “Furthermore, the importance

of the intervening time period is inversely proportional to the similarity of the


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crimes in question.” Commonwealth v. Einhorn, 911 A.2d 960, 967 (Pa.

Super. 2006) (internal quotes omitted); see also Commonwealth v.

Aikens, 990 A.2d 1181, 1186 (Pa. Superior. 2010) (holding that the strong

parallels between two offenses outweighed the lengthy intervening time

period between them).

      In the present case, the trial court reasoned that Appellant’s prior bad

acts against A.H. were admissible as “evidence of common scheme, plan, or

design,” because his conduct “fit a certain pattern.”     Trial Court 1925(a)

Opinion, 9/26/2023, at 5-6. Of course, the trial court did not state precisely

what this “certain pattern” was, instead vaguely alluding to “abuse [of K.C.,

D.H., and A.H.] starting around the same age.” Id., at 5. The trial court was

vague out of necessity, having acknowledged in its 1925(a) opinion that A.H.’s

testimony had a number of “dissimilarities from the present case’s

circumstances.” Id., at 6.

      Due to those marked differences, we cannot agree with the trial court’s

conclusion that A.H.’s testimony regarding Appellant’s prior bad acts was

admissible as evidence of a common plan or scheme. There is no rational way

to construe the three accounts of K.C., D.H., and A.H. as being somehow

linked together for a “common purpose” in the mind of Appellant. Nor can the

alleged offenses be characterized as being “strikingly similar,” as is required

to comport with Rule 404(b)(2) and controlling decisional law.




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      To summarize, K.C. alleged that her abuse occurred when she was

between seven to 12 years old, starting in 2010, when she began having

overnight visits at a house in Pennsylvania that belonged to her grandmother’s

boyfriend, Appellant. During that period, she and her younger brother, D.H.,

would often sleep in the living room with Appellant. As alleged, he would wake

K.C. up at night and digitally penetrate her under her underwear. On other

occasions, Appellant would force K.C. to touch his penis with her hands, and

then put his penis in her mouth. Appellant would also sexually assault K.C.

whenever she went to the bathroom, where he would force her to perform

oral sex.   At least once, Appellant ejaculated in K.C.’s mouth.       She was

frequently told by Appellant after these incidents not to tell anyone about their

“secret.”

      D.H. reported only a single incident that occurred when he was between

five and seven years old. During an overnight visit to Appellant’s home, he

was woken in the living room as Appellant began rubbing the child’s genitals.

D.H. told Appellant to stop, at which point Appellant withdrew his hand. D.H.

then went to sleep, and he did not report that any further instances of abuse

had happened thereafter.

      A.H., the uncle of K.C. and D.H., alleged that he was sexually abused

on a single occasion by Appellant when he was between six and seven years

old. This would have been in 2003 or 2004, about seven or eight years before

the abuse of K.C. began.      At that time, he and his mother, Appellant’s


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girlfriend, lived in Appellant’s house in Delaware. At some point in the morning

or early afternoon, when no one else was home, Appellant touched A.H.’s

penis with his hand and put A.H.’s penis in his mouth.             Appellant also

nonverbally directed A.H. to “lick his butt” as he stood facing away from A.H.

and bent forward.     N.T. Trial, 9/15/2022, at 265-66.       A.H. did not recall

Appellant ever telling him to keep the incident a secret. See id. at 267.

      These facts do not satisfy the propensity evidence exceptions invoked

by the Commonwealth at trial. There is no apparent common plan or scheme

that Appellant would have had in his mind at the time the offenses were

alleged to have occurred. Nor is there anything unique, distinct, or unusual

about the manner in which the victims were sexually abused such that we can

discern a close factual nexus sufficient to demonstrate their connective

relevance. See Ross, 57 A.3d at 104. Sex crimes against minor children, by

definition, involve a sexual act on a child, and that is the extent of the material

similarities between the offenses described here. See Commonwealth v.

Bidwell, 195 A.3d 610, 627 (Pa. Super. 2018) (“Similarities cannot be

confined to insignificant details that would likely be common elements

regardless of the individual committing the crime.”).

      In K.C.’s account, Appellant abused her over a period of several years;

Appellant digitally penetrated her and forced her to perform oral sex in both

the living room and bathroom of his house. D.H. stated that Appellant rubbed




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his genitals over his pants on one occasion, and that after telling Appellant to

stop, the touching ceased, and never occurred again.

      The prior bad acts disclosed by A.H. have very little in common with the

offenses described by either K.C. or D.H.     In addition to taking place in a

different state, a different time of day, and several years before the abuse of

K.C. began, A.H. was forced to perform anilingus on, and receive fellatio from,

Appellant. K.C.’s abuse spanned several years, and not one of the incidents

in that time involved the types of sexual acts described by A.H. The acts

described by D.H. are also entirely distinct from those alleged by his uncle.

      The facts before us are analogous to those in cases where it was held

that prior bad acts did not show a common scheme or unique signature

relevant to the charged offenses.      See Ross, 85 A.3d at 104 (reversing

murder conviction because the trial court had improperly admitted evidence

of the defendant's past violent abuse of women as proof of a common scheme

to rape and murder the victim).

      In Commonwealth v. Kasko, 469 A.2d 181 (Pa. Super. 1981), a case

highlighted by Appellant, this Court reversed a defendant’s judgment of

sentence because his two cases had been erroneously consolidated pursuant

to the common scheme exception of Rule 404(b)(2). The material facts of

Kasko are as follows:

      The criminal activities encompassed by the first of the two
      consolidated cases were alleged to have occurred “on or about
      February or March of 1980.” In this case, appellant was charged
      with sexually molesting his girlfriend's six-year-old niece while the

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     girlfriend baby-sat the child at an apartment shared by the
     girlfriend and her sister, the child's mother. The specific acts
     alleged involved the touching of appellant's exposed genitals to
     the child's anal area, and anal intercourse. These acts were
     alleged to have occurred in the presence of appellant's girlfriend.

     The second of the two consolidated cases alleged similar
     misconduct with the four-year-old daughter of appellant's step-
     sister, as well as the corruption of this child and the five-year-old
     son of appellant's other step-sister by teaching or encouraging the
     two to have indecent contact with each other. These offenses
     allegedly occurred sometime between December 15, 1980 and
     January 26, 1981, while the children were visiting their
     grandmother at her apartment, which was shared by appellant.
     These incidents were not alleged to have been committed in the
     presence of appellant's girlfriend or any other adult.

Kasko, at 183-84.

     This Court observed in Kasko that the victims in the defendant’s two

cases both involved “children of a similar age group, having a family or

personal link to the appellant . . . and [i]n both cases [the defendant] was

accused of roughly the same type of misconduct.” Kasko, 469 A.2d at 185.

Despite those similarities, the Kasko Court held that that the common scheme

exception had not been satisfied:

     [T]he two cases were separated by a substantial period of time
     and involved different victims. They occurred under dissimilar
     circumstances in that one allegedly occurred in the presence of
     appellant's girlfriend, later his wife, while the other did not. One
     case involved both a young boy and a young girl, whereas the
     other only involved a young girl. Finally, the misconduct alleged
     in this case is, sadly, not as rare as it should be, but is rather a
     common form of child abuse. Under these circumstances, we
     cannot agree that the two cases reach that high degree of
     correlation in detail required to show a common scheme, plan or
     design.


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Kasko, 469 A.2d at 185.

      Another analogous case that entitles Appellant to relief is our more

recent decision in Commonwealth v. Roman-Rosa, No. 111 MDA 2023 (Pa.

Super. filed December 6, 2023) (unpublished memorandum), where the issue

was whether two sexual abuse cases were properly consolidated based on the

common scheme exception of Rule 404(b)(2).          The first victim was the

daughter of the defendant’s girlfriend, both of whom lived in the defendant’s

home. At age three or four, the defendant would take off the first victim’s

clothes and touch her vagina; by age six, the defendant progressed to vaginal

penetration with his penis.

      The second victim was the daughter of the defendant’s subsequent

girlfriend. The only incident of abuse of the second victim took place when

she was a teenager; while the defendant and the second victim were in bed,

the defendant fondled her under her clothing.

      The defendant was charged with sex offenses as to both the first victim

and the second victim. The trial court approved the consolidation of the cases,

and on appeal, this Court had to determine whether the consolidation was

permissible pursuant to the common scheme exception in Rule 404(b)(2).

      We held that the acts were not strikingly similar, precluding the

admission of evidence of one case in the other under Rule 404(b)(2). The

pattern of molestation was distinct for each of the victims – “the only real

similarity in these crimes is the victim being the daughter of Appellant’s


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girlfriend, which is more akin to an insignificant detail common to many

offenders who sexually abuse their victims.”       Roman-Rosa, No. 111 MDA

2023, at 16; see also Bidwell, 195 A.3d at 627 (holding that a common

scheme was not established by evidence that defendant “was a domestic

abuser of women, some of whom he was involved in on-going romantic

relationships in the past[.]”).4

       Here, as in Roman-Rosa, the acts collectively described by K.C., D.H.,

and A.H. did not demonstrate a distinct pattern of conduct by Appellant. The

primary similarity in the crimes was that each victim was the child or

grandchild of Appellant’s girlfriend, which is the kind of familial connection

that is all too common when children are sexually abused. Since the prior bad

acts here amounted to no more than crimes of the same class as the charged

offenses, they should not have been admitted into evidence at trial.     See

Hicks, 156 A.3d at 1126. By yet finding that such circumstances qualify as a

common scheme for the purposes of Rule 404(b)(2), the trial court flouted

our Supreme Court’s mandate in Hicks.5

____________________________________________


4 This Court affirmed the judgment of sentence in Roman-Rosa because it

found that the trial court’s error in admitting evidence of prior bad acts was
ultimately harmless under the unique circumstances of the case, including the
jury’s verdict, which partially acquitted the defendant. See Roman-Rosa,
No. 111 MDA 2023, at 18 (Pa. Super. filed December 6, 2023) (unpublished
memorandum).

5 Because the admission of A.H.’s allegations violated Rule 404(b)(1), and no

exception under Rule 404(b)(2) was satisfied, it is unnecessary for this Court
(Footnote Continued Next Page)


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       Admitting evidence of Appellant's crimes against A.H. was not harmless.

“Evidence of prior criminal activity . . . is probably only equaled by a confession

in its prejudicial impact upon a jury.” Commonwealth v. Spruill, 391 A.2d

1048, 1050 (Pa. 1978). “The presumed effect of such evidence is to

predispose the minds of the jurors to believe the accused guilty, and thus

effectually to strip him of the presumption of innocence.” Trowery, 235 A.2d

at 172; see also Hicks, 156 A.3d at 1157 (Wecht, J., dissenting) (“It is

natural and well-nigh inevitable . . . that a juror will conclude that, if a person

has assaulted women before, he likely will do so again.”).

       Indeed, the testimony of A.H. could have persuaded the jury to infer

that Appellant was predisposed to sexually abuse children, making it more

likely that he committed the charged crimes against K.C. and D.H. In a case

like this one, where there was no physical evidence of Appellant’s guilt, the

credibility of the victims was the ultimate issue for the jury to resolve.

Allowing A.H. to testify as to Appellant’s prior bad acts prejudiced him because

such testimony could have improperly bolstered the credibility of K.C. and

D.H., and led the jury to believe that Appellant was guilty not because of the

evidence, but due to a perceived propensity for him to sexually abuse children.

See Roman-Rosa, No. 111 MDA 2023, at 20 (“The fact that credibility is


____________________________________________


to address whether the probative value of that evidence outweighed any
prejudicial effect under Rule 404(b)(3). See Commonwealth v. Ross, 57
A.3d 85, 104 n.18 (Pa. Super. 2012) (en banc).

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paramount in sexual abuse cases renders it virtually impossible for this Court

to state that the evidence of guilt was so overwhelming” that the evidence

could not have contributed to the verdict).         To remedy the prejudicial

admission of propensity evidence, the judgment of sentence must be vacated,

and Appellant must receive a new trial.

      Having disposed of Appellant’s first issue in his favor, we now turn to

his second claim – that the trial court erroneously denied his motion to sever

the cases of K.C. and D.H.

      Pennsylvania Rule of Criminal Procedure 582 provides that separate

cases 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(A)(1).

      Further, Rule 583 allows courts to “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.” Pa.R.Crim.P. 583.

      “The general policy of the laws is to encourage joinder of offenses and

consolidation of indictments when judicial economy can thereby be effected,

especially when the result will be to avoid the expensive and time consuming

duplication of evidence.” Commonwealth v. Johnson, 236 A.3d 1141, 1150


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(Pa. Super. 2020) (citation omitted). “Whether to join or sever offenses for

trial is within the trial court's discretion and will not be reversed on appeal

absent a manifest abuse thereof, or prejudice and clear injustice to the

defendant.” Commonwealth v. Knoble, 188 A.3d 1199, 1205 (Pa. Super.

2018) (citation omitted).

      Here, Appellant’s severance claim on appeal is a closer question than

the evidentiary issue discussed above because the testimony of A.H. does not

come into play. The trial court had discretion to consolidate the cases of K.C.

and D.H. as long as “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[.]”     Pa.R.Crim.P. 582(A)(1)(b).    The

Commonwealth had argued, and the trial court found, that the cases could be

joined because the evidence of the victims’ offenses established a common

plan or scheme under Pa.R.E. 404(b)(2). See Trial Court Opinion, 9/26/2023,

at 2-5.

      The record shows that the trial court acted within its discretion in

consolidating the cases for trial. At the relevant times, the victims, K.C. and

D.H., were siblings who both regularly spent the night at Appellant’s home.

D.H.’s age at the time of his incident with Appellant was close to the age of

K.C. when she was first abused by Appellant.        The offenses against the

children also occurred under similar circumstances (late at night during “a

sleepover”), in the same place (Appellant’s living room, where the children


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slept when they visited the home), and within a relatively close period of

time.6

       Additionally, Appellant did not suffer any undue prejudice from the

consolidation of the cases for trial because the jury would have easily been

able to parse the charges in each victim’s case. The ongoing abuse of K.C., a

female, and the single instance of abuse against D.H., a male, would have

made the facts in the respective cases distinguishable. There was minimal

danger that the jury would have confused the two cases or somehow conflated

them with each other.        Thus, since the common plan exception of Pa.R.E.

404(b)(2) was met with respect to K.C. and D.H., the trial court acted within

its discretion in denying Appellant’s motion to sever the two victims’ cases.

See e.g., Commonwealth v. Renninger, 269 A.3d 548, 564 (Pa. Super.

2022) (affirming denial of severance where evidence in two cases showed that

defendant had similarly touched the victims over their clothes, and the

commonality of that behavior refuted the defense that the touching was

accidental); Aikens, 990 A.2d at 1185-86 (holding that common scheme

linked two cases, warranting joinder, where both victims were siblings,

defendant initiated sexual contact in bed during overnight visits, and the

outset of abuse fit a unique pattern of conduct).



____________________________________________


6 The offenses against K.C. took place between 2010 and 2017.The offense
against D.H. overlapped with that period, taking place between 2012 and
2014.

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     Judgment of sentence vacated. Case remanded for further proceedings

consistent with this memorandum. Jurisdiction relinquished.

     Judge Bowes joins the memorandum.

     Judge Murray files a concurring and dissenting memorandum.



Judgment Entered.




Benjamin D. Kohler, Esq.
Prothonotary



Date: 11/01/2024




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