Commonwealth v. Dillon

Justice BALDWIN

dissenting.

In this case implicating 18 Pa.C.S. § 3105, I believe that the prejudicial effect of the contested evidence outweighs its probative value when presented in the Commonwealth’s case-in-chief. For reasons explained in greater detail below, I respectfully dissent.

Appellant is charged with a multitude of sexual offenses stemming from the alleged sexual assault of his girlfriend Danielle Herron’s daughter, L.P. See Majority Op. at 133, n. 2-11. It is alleged that Appellant sexually abused L.P. for a period of almost four years, beginning in 1995 when L.P. was nine years old and ending in 1998. During this period, Appellant also physically assaulted both Ms. Herron and K., L.P.’s eight year old brother. In fact, Appellant was convicted of aggravated assault 1 following one such attack on K. which resulted in K.’s leg being broken. It was not until 2001, when Appellant was incarcerated on the aggravated assault charge, that L.P. revealed that Appellant had continually sexually assaulted her.

Prior to trial on the sexual assault charges, the Commonwealth filed a pre-trial motion in limine seeking to introduce evidence of the physical abuse of Herron and K. during the Commonwealth’s case-in-chief. The Commonwealth sought introduction of this evidence to demonstrate to the jury that L.P. failed to promptly report the sexual abuse out of fear that if she reported the abuse, she too would be subjected to the same physical abuse inflicted upon her family. The trial court denied the motion and ruled that the evidence was inadmissible until Appellant challenged the lengthy delay in reporting the abuse. The Superior Court, in a published en banc decision, reversed. Commonwealth v. Dillon, 863 A.2d 597 (Pa.Super.2004).

*370 We granted allocatur to determine “whether Rule 404(b) of the Pennsylvania Rules of Evidence prohibits the Commonwealth from introducing such evidence in its case-in-chief— specifically, here, evidence that Appellant physically abused L.P.’s mother and brother which was proffered to explain LJP.’s lengthy delay in reporting Appellant’s actions to authorities.” Majority Op. at 353, 925 A.2d at 133. The majority, relying on this Court’s decision in Commonwealth v. Minerd, 562 Pa. 46 , 753 A.2d 225 (2000), holds that the challenged evidence is admissible in the Commonwealth’s case-in-chief under Pa.R.E. 404(b)(2). In doing so, the majority overstates the probative value of such evidence. I disagree and reach the opposite conclusion. The introduction of evidence concerning the physical abuse of L.P.’s mother and brother prior to the defense attacking the victim’s delay in reporting results in the prejudicial impact of this evidence outweighing its probative value.

“Admissibility of evidence is a matter addressed to the sound discretion of the trial court and an appellate court may only reverse rulings on admissibility upon a showing that the lower court abused its discretion.” Commonwealth v. Billa, 521 Pa. 168, 177-78 , 555 A.2d 835, 840 (1989) (citing Commonwealth v. Claypool, 508 Pa. 198, 202 , 495 A.2d 176, 178 (1985)). “Evidence of a defendant’s distinct crimes are [sic] not generally admissible against a defendant solely to show his bad character or his propensity for committing criminal acts, as proof of the commission of one offense is not generally proof of the commission of another.” Billa, 521 Pa. at 177 , 555 A.2d at 840 (emphasis in original) (citing Commonwealth v. Lark, 518 Pa. 290 , 543 A.2d 491, 497 (1988)). This concept is similarly reflected in Pennsylvania Rule of Evidence 404(b)(1), which states that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of the person in order to show action in conformity therewith.” As the majority aptly points out, evidence of other crimes or bad acts is relevant, but generally proscribed as a matter of policy because the potential for misuse by the jury due to the inflammatory nature of this type of evidence is too great. See Majority Op. at 359, 925 A.2d at 136. Nonetheless, there are *371 exceptions to this rule which are specifically aimed at allowing the evidence to be used for purposes other than showing criminal propensity. Although not exhaustive, Pa.R.E. 404(b)(2) provides exceptions to the general rule where the evidence is offered to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. See Majority Op. at 359-60, 925 A.2d at 136-37.

Here, the majority finds that evidence of physical abuse upon Herron and K. was relevant for purposes other than criminal propensity. Specifically, the majority finds that the evidence was probative in that it explained L.P.’s “significant delay” in reporting the alleged sexual abuse. See Majority Op. at 363, 925 A.2d at 139. The majority also finds the evidence relevant for res gestae purposes. Id. (“The evidence was also relevant for res gestae purposes, i.e., to explain the events surrounding the sexual assaults, and resulting prosecution so that the case presented to the jury did not appear in a vacuum.”). On these specific findings, I agree with the majority. However, for Rule 404(b) purposes, finding that the proffered evidence is relevant for purposes other than criminal propensity does not end the inquiry. Such evidence is admissible “only upon a showing that the probative value of the evidence outweighs its potential for prejudice.” Pa.R.E. 404(b)(3). It is at this juncture that I must depart from the majority.

As we stated in Billa regarding the balancing test in Rule 404(b), “[a]s with any evidentiary ruling, the trial court should balance the relevancy and evidentiary need for the evidence of distinct crimes against the potential for undue prejudice.” Billa, 521 Pa. at 178 , 555 A.2d at 840 (emphasis added) (citing Lark, 518 Pa. at 310 , 543 A.2d at 501 ). Upon a close inspection, the need for the proffered evidence in the Commonwealth’s case-in-chief is minimal. Therefore, its probative value is outweighed by the evident prejudicial impact.

In Minerd , we were faced with a similar situation to that presented here. In that case, Timothy Minerd was charged with sexually assaulting the two young daughters of the woman with whom he was living. V.M., who was twenty years old at the time of trial, testified that Minerd began molesting her in the early 1980s when she was three and one-half or four *372 years old. Id. at 50 , 758 A.2d at 227. Similarly, J.M., V.M.’s younger sister, testified that Minerd began molesting her when she was six years old. Id. at 51, 753 A.2d at 228 . In 1989, after V.M. learned about AIDS in school and fearing that she had acquired the disease from Minerd, Y.M. informed her mother of the sexual abuse. J.M. also revealed that she too had been abused by Minerd. Id.

Minerd was eventually arrested and brought to trial. At trial, as part of the Commonwealth’s case-in-chief, Dr. Margaret Carver, an expert in obstetrics and gynecology, testified that she had examined both V.M. and J.M. and found no evidence of physical trauma to the girls’ vaginal or anal areas. She further testified, however, that the lack of physical injury did not prove that an assault never occurred because there was adequate time between the abuse and the examination for the relevant bodily areas to fully heal. Id. at 51-52 , 753 A.2d at 228 . Minerd was eventually convicted of various sexual crimes and sentenced to an aggregate term of imprisonment of seven and one-half to twenty-two years.

We granted allocatur in Minerd to consider “whether the Commonwealth may, as part of its case-in-ehief in a sexual assault prosecution, offer the testimony of an expert that the absence of physical trauma is nevertheless consistent with the alleged sexual abuse.” Id. at 50 , 753 A.2d at 227 . We rejected Minerd’s claim that the expert testimony would be proper only on rebuttal and not in the Commonwealth’s casein-chief. Because the victims waited a lengthy period of time before reporting the abuse, there was a lack of physical evidence to aid in proving the crime. Dr. Carver’s testimony was relevant to explain the conspicuous absence. Thus, in rejecting Minerd’s claim, we explained that without Dr. Carver’s testimony, “jurors may improperly draw a negative inference against the Commonwealth, based upon a layperson’s untutored assumptions, and rely upon that inference in rendering a verdict.” Id. at 57 , 753 A.2d at 231 . We also recognized that juries expect to hear certain kinds of evidence in sexual assault cases, and that the Commonwealth may be unfairly penalized for not meeting the jury’s expectations. Id. *373 (citing S.A. Saltzburg, A Special Aspect of Relevance: Countering Negative Inferences Associated with the Absence of Evidence, 66 Cal.L.Rev. 1011, 1019). Thus, we held that the Commonwealth was entitled to address this negative inference in its case-in-chief because the defense may choose not to introduce the results of the physical examination showing the lack of physical trauma, thereby depriving the Commonwealth of the opportunity to address the juror’s potential negative inferences. In such a case, introduction of the evidence during the Commonwealth’s case-in-chief would not prejudice or confuse the jury any more than if it were introduced at rebuttal, particularly because the defense would have the opportunity to cross-examine the expert at either stage. Id.

The majority employs the Minerd reasoning to find that jurors in a case such as this one will likely draw a negative inference from a sexual assault victim’s failure to promptly report the alleged abuse. Addressing this negative inference, according to the majority, cannot be conditioned on the defense first raising the issue. The Court states that “[t]he necessity for the party with the burden of proof to address that speculation cannot be a function of whether the defense decides to pursue it affirmatively. To allow the natural inference to go unrebutted can mislead the jury.” Majority Op. at 365, 925 A.2d at 140. As mentioned above, the majority overstates the necessity of addressing this potential negative inference in this case.

In Minerd , there was a high likelihood that jurors would be suspicious of the criminal allegations absent an explanation of the lack physical trauma to the victims. There was little doubt that the testimony’s probative value out weighed any prejudicial impact, which was minimal at best. Moreover, and particularly pertinent to this discussion, the necessity of Dr. Carver’s testimony was clear. Without her testimony, the jury’s suspicions and speculations would never be addressed.

The instant case differs from Minerd in two substantial ways. First, the evidence in question here is of a materially different character than that in Minerd . In Minerd , the evidence was expert testimony regarding the lack of physical trauma, whereas in the instant case the evidence at issue *374 related to credibility and involved unrelated violent crimes perpetrated on the alleged victim’s family. Second, however, is the chief distinction from Minerd , which is the applicability of 18 Pa.C.S. § 3105. Section 3105 states, with regard to sexual offenses, that:

Prompt reporting to public authority is not required in a prosecution under this chapter: Provided, however, That nothing in this section shall be construed to prohibit a defendant from introducing evidence of the complainant’s failure to promptly report the crime if such evidence would be admissible pursuant to the rules of evidence.

18 Pa.C.S. § 3105. (emphasis added).

The statute instructs the courts that the Commonwealth does not have to prove, or explain, anything with regard to the promptness, or lack thereof, in reporting the alleged abuse to the authorities to achieve convictions on the underlying charges. Commonwealth v. Freeman, 295 Pa.Super. 467 , 441 A.2d 1327, 1331 (1982) (“[T]he fact that a victim made a prompt complaint is no longer required to sustain a rape conviction, See 18 Pa.C.S.A. § 3105.”) Pursuant to § 3105, courts should instruct juries that the failure of a victim to promptly complain about sexual abuse or attacks is not to be considered in determining whether the Commonwealth has made its case. As discussed below, this would diffuse concerns about improper inferences drawn by the jury. This, of course, is limited to the situation where a defendant chooses not to attack the victim’s credibility based on her delay in reporting the abuse or attack.

The existence of this statute not only refutes the majority’s assertion that the challenged evidence here is necessary, but it also eliminates the concern that juries will (1) have and (2) ponder some nebulous “negative inference” that is never addressed unless the defendant raises the issue. If the defendant fails to raise the issue, which, as the majority points out, would be a rare situation, see Majority Op. at 367, 925 A.2d at 141, the Commonwealth can inform the jury during closing arguments that it need not consider the lack of a prompt complaint because Pennsylvania law does not require it as an *375 element of any sexual crimes. More importantly, the Commonwealth can request that a jury instruction be given that tracks the language of Section 3105, and the trial court should so instruct them. The result would eradicate any lingering concerns that the jury would have regarding the necessity of an explanation regarding the victim’s failure to promptly report the alleged abuse. We routinely presume that jurors follow the court’s instructions regarding the law. See Commonwealth v. Johnson, 542 Pa. 384, 401 , 668 A.2d 97, 105 (1995). Therefore, an instruction to this effect would dispel the notion that the jurors would penalize the Commonwealth for not offering evidence to explain the speculation possibly lingering in their heads. The burden then lies with the defendant. The Commonwealth need not explain the issue; thus, if the defendant desires the benefit of the negative inference about the complainant’s credibility that historically accompanies the victim of a sexual assault’s failure to immediately report the abuse, he must raise it or suffer the consequences of having the judge instruct the jury not to consider it.

In light of the effect of § 3105, the need for the evidence in question in the Commonwealth’s case-in-chief is minimal. Admittedly, the probative value must still be weighed against the prejudicial effect of the proffered evidence. See Billa, supra. The challenged evidence of prior crimes of violence is severely prejudicial. The impact of prior crimes, particularly violent ones, on a trial for a separate offense is well-settled. As we stated in Commonwealth v. Bryant, 515 Pa. 473, 476 , 530 A.2d 83, 85 (1987) (citing Commonwealth v. Spruill, 480 Pa. 601, 606 , 391 A.2d 1048, 1050 (1978)), "... evidence of prior criminal activity on the part of the accused is so highly prejudicial in its effect upon the jury as to be equaled only by an actual confession in its impact on the deliberative process.” As the majority notes, “ ‘unfair prejudice’ means the tendency to suggest a decision on an improper basis or to divert the jury’s attention away from its duty of weighing the evidence impartially.” Majority Op. at 366, 925 A.2d at 141, (citing Pa.R.E. 403 cmt.). Unquestionably, the inherent prejudice involved with prior crimes, including the acts of violence *376 involved here, will improperly influence the jury and divert its attention, particularly where the defense chooses to forgo any challenge to the victim’s failure to promptly report the alleged abuse. This would be even more so where the judge instructs the jury that the Commonwealth need not prove, or explain, anything with regard to the issue to sustain a conviction. Thus, I conclude that the prejudicial impact of the proffered evidence here outweighs its minimal probative value.

To be clear, the above analysis is applicable only to the Commonwealth’s presentation, in its case-in-chief, of highly prejudicial evidence that is unrelated to the charged crimes. Where a defendant raises the issue of why the alleged victim failed to report the incident in a more timely manner, the circumstances change and the Commonwealth’s need to explain the delay escalates to the point where introduction of the evidence on rebuttal will outweigh its prejudicial value. However, until such an attack is lodged, to ensure a fair trial, I would hold that the evidence is inadmissible. Therefore, I dissent.

. 18 Pa.C.S. § 2702.