plan exception in Pennsylvania

2022The trial court must also “assure that the probative value of the evidence is not outweighed by its potential prejudicial impact upon the trier of - 10 - J-S18027-22 fact.” Id. (citation omitted). “[T]he 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.” Id. (citation omitt

2022The trial court must also “assure that the probative value of the evidence is not outweighed by its potential prejudicial impact upon the trier of - 10 - J-S18027-22 fact.” Id. (citation omitted). “[T]he 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.” Id. (citation omitt

2021To 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. - 14 - J-S22024-21 Commonwealth v. G.D.M., 926 A.2d 984, 987 (Pa. Super. 2007) (paragraph break added and citation omitted).

2021In every case under Rule 404(b), a 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.” Tyson, 119 A.3d at 359 (quoting G.D.M., Sr., 926 A.2d at 987 ).

2020“A determination of whether evidence is admissible under the common plan exception must be made on a case by case basis in accordance with the unique facts and circumstances of each case.” Commonwealth v. Smith, 635 A.2d 1086, 1089 (Pa. Super. 1993) (quotations, citations, and corrections omitted). - 17 - J-S61027-19 Regarding the degree of similarity between the crimes, we have explained: [w]hen 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 evi

2017In Commonwealth:v. Smith, which dealt with the common plan exception, we find that, '"if the evidence reveals that the details of each criminal incident are nearly identical, the fact that the incidents ate separated by a lapse of time will not likely prevent the offer of evidence unless the time is excessive."' 635 A.2d 1086, 1090 (Pa. Super.

2019Further, in weighing the probative value of the evidence against its danger of unfair prejudice, “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. Frank, 577 A.2d 609, 614 (Pa. Super. 1990).

2018Further, in weighing the probative value of the evidence against its danger of unfair prejudice, “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. Frank, 577 A.2d 609, 614 (Pa. Super. 1990).

2022See Saez, 225 A.3d at 180 ; accord Commonwealth v. Aiken, 990 A.2d 1181, 1185-86 (Pa.Super. 2010) (finding no error in admitting evidence under the common plan exception, noting the two alleged incidents were “markedly similar,” as the victims were of like ages and were defendant’s biological daughters, and in both instances defendant initiated the contact by showing a pornographic movie during an overnight visit ).

2021See also Commonwealth v. Aikens, 990 A.2d 1181, 1185-86 (Pa.Super. 2010) (holding ten-year time lapse was not excessive for admissibility of evidence under the common plan exception).

2022See Saez, 225 A.3d at 180 ; accord Commonwealth v. Aiken, 990 A.2d 1181, 1185-86 (Pa.Super. 2010) (finding no error in admitting evidence under the common plan exception, noting the two alleged incidents were “markedly similar,” as the victims were of like ages and were defendant’s biological daughters, and in both instances defendant initiated the contact by showing a pornographic movie during an overnight visit ).

2021Appellant specifically cites to Commonwealth v. Saez, 225 A.3d 169, 180 (Pa.Super. 2019), in which this Court has held that in assuring that the probative value is not outweighed by his potential for unfair prejudice, the trial 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 deliberati

2022Gilliam, 249 A.3d at 272 (internal citation omitted).

2022Gilliam, 249 A.3d at 271-72 (emphasis added and citations omitted). [T]he [trial] court is not . . . required to sanitize the trial to eliminate all unpleasant facts from the jury’s consideration where those facts are relevant to the issues at hand and form part of the history and natural development of the events and offenses for which the defendant is charged. -9- J-A12012-22 Commonwealth v. Dillon, 863 A.2d 597, 601 (Pa. Super. 2004) (citation omitted).

2017Tyson, supra at 358–59 (citation omitted). “[M]uch more is demanded than the mere repeated commission of crimes of the same class, such as -6- J-A04042-17 repeated burglaries or theft.” Commonwealth v. Semenza, 127 A.3d 1, 8 (Pa. Super. 2015) (citation omitted). “[Our Supreme] Court has also recognized the res gestae exception, permitting the admission of evidence of other crimes or bad acts to tell ‘the complete story.’” Commonwealth v. Hairston, 84 A.3d 657, 665 (Pa. 2014), cert. denied, 135 S.Ct. 164 (2014) (citation omitted).

2017Tyson, supra at 358–59 (citation omitted). “[M]uch more is demanded than the mere repeated commission of crimes of the same class, such as repeated burglaries or theft.” Commonwealth v. Semenza, 127 A.3d 1, 8 (Pa. Super. 2015) (citation omitted). “[Our Supreme] Court has also recognized the res gestae exception, permitting the admission of evidence of other crimes or bad acts to tell ‘the complete story.’” Commonwealth v. Hairston, 84 A.3d 657, 665 (Pa. -6- J-A04043-17 2014), cert. denied, 135 S.Ct. 164 (2014) (citations omitted).

2017Tyson, supra at 358–59 (citation omitted). “[M]uch more is demanded than the mere repeated commission of crimes of the same class, such as -6- J-A04042-17 repeated burglaries or theft.” Commonwealth v. Semenza, 127 A.3d 1, 8 (Pa. Super. 2015) (citation omitted). “[Our Supreme] Court has also recognized the res gestae exception, permitting the admission of evidence of other crimes or bad acts to tell ‘the complete story.’” Commonwealth v. Hairston, 84 A.3d 657, 665 (Pa. 2014), cert. denied, 135 S.Ct. 164 (2014) (citation omitted).

2017Tyson, supra at 358–59 (citation omitted). “[M]uch more is demanded than the mere repeated commission of crimes of the same class, such as repeated burglaries or theft.” Commonwealth v. Semenza, 127 A.3d 1, 8 (Pa. Super. 2015) (citation omitted). “[Our Supreme] Court has also recognized the res gestae exception, permitting the admission of evidence of other crimes or bad acts to tell ‘the complete story.’” Commonwealth v. Hairston, 84 A.3d 657, 665 (Pa. -6- J-A04043-17 2014), cert. denied, 135 S.Ct. 164 (2014) (citations omitted).

2021Commonwealth v. Tyson, 119 A.3d 353, 358-59 (Pa.Super. 2015) (en banc) (quoting Commonwealth v. G.D.M., Sr., 926 A.2d 984, 987 (Pa.Super. 2007), appeal denied, 596 Pa. 715 , 944 A.2d 756 (2008)).

2019See Commonwealth v. G.D.M, Sr., 926 A.2d 984 (Pa.Super.2007). appeal denied, 596 Pa.715, 944 A.2d 756 (2008) (quoting Commonwealth v. Smith 432 Pa.Super. 91 , 635 A.2d 1086 (1993)).

2024As this Court explained in Commonwealth v. Cosby, 224 A.3d 372 (Pa. Super. 2019), reversed on other grounds, 252 A.3d 1092 (Pa. 2021), [a] determination of admissibility under the common plan/scheme/design exception must be made on a case[-]by[-] case basis in accordance with the unique facts and circumstances of each case. … 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 i

2022See Lead Trial Court Opinion, No. 43-2018, 3/29/21, at 8-10 (internal citation omitted); see also Commonwealth v. Cosby, 224 A.3d 372, 398 (Pa. Super. 2019), vacated on other grounds, 252 A.3d 1092 (Pa. 2021) (stating that the common plan exception helps to identify a perpetrator based on his “commission of extraordinarily similar criminal acts on other occasions.

1990In contrast to the holdings in Newman and in Kasko , our Supreme Court, in Commonwealth v. Hughes, 521 Pa. 423 , 555 A.2d 1264 (1989), has recently relied upon the common plan exception to affirm the finding that evidence of one rape, committed on January 5, 1980, was admissible in a prosecution for a rape and murder committed at an earlier date: March 1, 1979. 2 The Court determined that the similarities of the two crimes represented the unique signature of the appellant: ... (1) both crimes involved young females (Graham was nine; Oquendo was twelve); (2) both victims were non-Caucasian ...

1990In contrast to the holdings in Newman and in Kasko , our Supreme Court, in Commonwealth v. Hughes, 521 Pa. 423 , 555 A.2d 1264 (1989), has recently relied upon the common plan exception to affirm the finding that evidence of one rape, committed on January 5, 1980, was admissible in a prosecution for a rape and murder committed at an earlier date: March 1, 1979. 2 The Court determined that the similarities of the two crimes represented the unique signature of the appellant: ... (1) both crimes involved young females (Graham was nine; Oquendo was twelve); (2) both victims were non-Caucasian ...

2022The exception is demanding . . ., requiring nearly unique factual circumstances in the commission of a crime, so as to effectively eliminate the possibility that it could have been committed by anyone [else] . . ..”); Commonwealth v. Hicks, 156 A.3d 1114 , 1125–26 (Pa. 2017) (observing that “[i]n further explaining the logical connection standard, this Court has noted [that] much more is demanded than the mere repeated commission of crimes of the same class, such as repeated burglaries or thefts”) (internal citation and quotations omitted); cf. Commonwealth v. Rush, 646 A.2d 557, 561 (Pa. 1994

2017Ct. 2003) (citing Commonwealth v. Rush, 646 A.2d 557 (Pa. 1994)).

2022He claims evidence of J.D.’s allegations do not fit the common plan exception because the allegations “do not support an inference that [Dixon] conceived of a single, overarching plan encompassing each of the prior acts and the charged crime.” Id. at 26 (quoting Hicks, 156 A.3d at 1143 (Donohue, J. dissenting)).

2022He claims evidence of J.D.’s allegations do not fit the common plan exception because the allegations “do not support an inference that [Dixon] conceived of a single, overarching plan encompassing each of the prior acts and the charged crime.” Id. at 26 (quoting Hicks, 156 A.3d at 1143 (Donohue, J. dissenting)).

2024See 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

2022He cites Commonwealth v. Coyle, 203 A.2d 782, 789 (Pa. 1964), for the proposition that the common plan exception required more than shared similarities or a logical connection.

2022Gilliam, 249 A.3d at 271-72 (emphasis added and citations omitted). [T]he [trial] court is not . . . required to sanitize the trial to eliminate all unpleasant facts from the jury’s consideration where those facts are relevant to the issues at hand and form part of the history and natural development of the events and offenses for which the defendant is charged. -9- J-A12012-22 Commonwealth v. Dillon, 863 A.2d 597, 601 (Pa. Super. 2004) (citation omitted).

2019See Commonwealth v. Luktisch, 680 A.2d 877 (Pa.Super. 1996) (holding Commonwealth’s need to present prior bad acts testimony was increased after victim’s credibility was “crippled” at trial; at that point, prior bad act testimony became more probative than prejudicial).

2017In Commonwealth v. 0 'Brien, which, again, deals with the common plan exception but provides guidance on the .remoteness question, the Superior Court excluded the time the defendant had spent incarcerated from their analysis of remoteness. 836 A.2d 966, 911 (Pa. Super.

1992The general rule in Pennsylvania as to the admission of “other crimes” is that “a distinct crime ... cannot be given in evidence against a defendant who is being tried for another crime.” Commonwealth v. Booth, 291 Pa. Super. 278, 287 , 435 A.2d 1220, 1225 (1981).

1992The general rule in Pennsylvania as to the admission of “other crimes” is that “a distinct crime ... cannot be given in evidence against a defendant who is being tried for another crime.” Commonwealth v. Booth, 291 Pa. Super. 278, 287 , 435 A.2d 1220, 1225 (1981).