EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, March 6, 2010

Remote Control? Pennsylvania Court Upholds Admission Of M.O. Evidence Despite Its Remoteness

Pennsylvania does not have a counterpart to Federal Rule of Evidence 414(a), which provides that

In a criminal case in which the defendant  is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

That said, the state does have Pennsylvania Rule of Evidence 404(b), its counterpart to Federal Rule of Evidence 404(b), which provides that evidence of other crimes, wrongs, or acts of an individual is admissible for certain purposes such as proving common plan or scheme/m.o. And, in its recent opinion in Commonwealth v. Aikens, 2010 WL 737642 (Pa.Super. 2010), the Superior Court of Pennsylvania found that this rule covered a prior act of child molestation by a criminal defendant, despite its remoteness.

In Aikens, Ronald Aikens was convicted of corruption of a minor, endangering the welfare of a child, and indecent assault based upon acts that he allegedly committed against T.S., his then fourteen year-old biological daughter. At trial, the prosecution introduced evidence of prior acts of sexual molestation that Aikens allegedly committed against V.B., his then fifteen year-old biological daughter, fifteen years before the acts that he allegedly committed against T.S.  
After he was convicted, Aikens appealed, claiming, inter alia, that this past act evidence should have been deemed inadmissible, but the Superior Court of Pennsylvania found that it was admissible under Federal Rule of Evidence 404(b) to prove common plan or scheme. According to the court,
In the case at bar, we believe that the fact pattern involved in the two incidents was markedly similar. In both cases, the victims were of like ages: T.S. was fourteen years old, and V.B. was fifteen years old. Both victims were Appellant's biological daughters. Appellant initiated the contact during an overnight visit in his apartment. He began the sexual abuse by showing the girls pornographic movies. The assaults occurred in bed at night. While Appellant raped V.B. and indecently assaulted T.S., T.S. stopped Appellant from disrobing her and committing the more serious sexual assault. In addition, Appellant mimicked the grinding movements of sexual intercourse on T.S. in order to sexually gratify himself. These matching characteristics elevate the incidents into a unique pattern that distinguishes them from a typical or routine child-abuse factual pattern. Hence, we reject Appellant's position that we are pigeonholing sexual abuse cases to such an extent that any prior instance of child abuse would be admissible in a subsequent child abuse prosecution....As was the case in Hughes, the similarities at issue herein were "not confined to insignificant details that would likely be common elements regardless of who committed the crimes."

Moreover, the court found that

Concededly, the time lapse at issue in this case was lengthy. V.B.'s abuse started in fall 1986 and ended in approximately 1990....The rape introduced at this trial occurred fifteen years prior to the assault at issue....Thus, there was a ten-to-eleven-year period between the end of that abuse and the present abuse. However, as we noted in Luktisch, remoteness is merely one factor to be considered in determining admissibility; the importance of the gap in time is inversely proportional to the similarity between the crimes. In this case, the parallels are striking. The abuse was perpetrated in an identical manner on victims with identical characteristics and in an identical setting. The only exception was that the victim herein was able to stop the abuse from escalating. Hence, the fact that V.B .'s abuse occurred remotely to that in the present case was not determinative of the issue. In addition, since the crimes were comparable, the probative value of the evidence of V.B.'s abuse outweighed its prejudicial impact.

I'm not sure that I agree. Evidence offered to prove common plan or scheme usually consists of evidence of several prior similar acts such that the trier of fact would conclude that all of the acts must have been committed by the same person, i.e., the defendant. in Aikens, the prosecution only had evidence of acts involving the alleged victim -- T.S. -- and one other victim -- V.B. Given this, I think that the evidence regarding acts against V.B. were at best barely admissible, and that is before even taking account of the remoteness of those acts. With that remoteness factored in, I find it difficult to believe that evidence of these prior acts should have been admissible to prove common plan or scheme.



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