OPINION BY JENKINS, J.:
Lawrence Semenza, captain of the Old Forge Fire Department and chief of the Old Forge Police Department, was accused of committing various sexual offenses against a minor, N.B., a volunteer firefighter, in 2004-05. A jury found Semenza guilty of corruption of minors
The first issue in this appeal is whether the trial court abused its discretion in admitting evidence under Pa.R.E. 404(b) of Semenza's sexual relationship with an adult female, M.K.S.,
Semenza raises the following four issues on appeal:
Brief For Appellant, at 6.
In his first argument, Semenza challenges the trial court's decision to admit evidence of his sexual relationship with M.K.S. under the common scheme exception to Rule 404(b)(2). The admissibility of evidence is within the sound discretion of the trial court, and we will not disturb an evidentiary ruling absent an abuse of that discretion. Commonwealth v. Flor, 606 Pa. 384, 998 A.2d 606, 623 (2010). "An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record." Commonwealth v. Harris, 884 A.2d 920, 924 (Pa.Super.2005).
The following evidence is pertinent to the common scheme issue. In 2004, Semenza was 40 years old, and he was both captain of the Old Forge Fire Department and a sergeant in the Old Forge Police Department. N.T., 10/16/13, at 62, 118. In 2005, he became chief of the Police Department. N.T., 10/21/13, at 201.
N.B. testified that in 2004, when she was 15 years old and a sophomore in high school, she wanted to become a member of the fire department, because she had grown up around firefighters. N.T. 10/16/13, pp. 53, 57. She applied to become a firefighter at the Old Forge firehouse. Semenza approved her application, making her the only female junior firefighter in the house. She began the Essentials training program that summer and completed it in the fall of 2004. Id. at 58-61. Semenza, her boss, was very supportive and accepting, and she saw him on a daily basis. Id. at 62, 63. She considered the firehouse a second home. Id. at 170.
N.B. testified that upon joining the fire department, she received old firefighter gear but was then immediately fitted for better fitting gear, a development she attributed to her relationship with Semenza. N.T., 10/16/13, at 66-70. Other evidence indicates, however, that she did not receive the new gear until one year after joining the fire department, and that 8 of the 12-15 members of the firehouse received new gear at the same time as she. N.T., 10/21/13, at 119-21. This equipment was paid for by the fire company. N.T., 10/16/13, at 70.
N.B. testified that her first intimate physical contact with Semenza occurred in the kitchen of the firehouse, where he
N.B. accused Semenza of digitally penetrating her vagina on two occasions. Once, in early 2005, while N.B. sat under a blanket with Semenza on the couch in the television room of the firehouse, Semenza placed his hand within her underwear and digitally penetrated her. N.T., 10/16/13, at 108-09, 111, 112. On another occasion close in time to the incident on the couch, Semenza digitally penetrated her in the firehouse weight room. Id. at 116. These were the only times that Semenza touched her vaginally, and he never touched her in that manner after her sixteenth birthday in March 2006. Id. at 117, 191, 197. Semenza never had vaginal intercourse or oral sex with N.B. Id. at 178, 196.
N.B. added that on another unspecified date, Semenza exposed himself to her in the firehouse kitchen and asked her to touch his penis. N.T., 10/16/13, at 117.
N.B. stated that she went to multiple training events with Semenza and other members of the department. N.T., 10/16/13, at 91. At most events, Semenza was an instructor. Id. On one trip, they had "intimate kissing" in his room, but nothing else happened. Id. at 94-95.
N.B. testified that she wanted a romantic relationship with Semenza and believed that she was almost like his wife. N.T., 10/16/13, at 214. As part of their relationship, Semenza gave N.B. presents, such as a Claddagh ring (a traditional Irish ring) and a Maltese Cross. N.T., 10/16/13, at 98, 100. These gifts, however, coincided with other members of the fire department exchanging Christmas gifts. Id. at 97, 100-102, 174.
N.B. testified that her romantic relationship with Semenza started to wane during her senior year in high school and ended by the end of 2006 or beginning of 2007. N.T., 10/16/13, at 144-145, 244. According to N.B., she became "very busy" with "[her] senior project and senior activities," and Semenza was busy as well, so their relationship "kind of just faded away." Id. at 148.
The testimony of other Commonwealth witnesses suggests that Semenza's relationship with N.B. had a sexual dimension. Kim Zupon, Semenza's ex-wife, and Michael Zupon, Kim's present husband, testified that in the spring of 2004 or 2005,
Over Semenza's objection, the trial court permitted the Commonwealth to present M.K.S.'s testimony as "common scheme" evidence under Rule 404(b). M.K.S. testified that she met Semenza in January 2007. N.T., 10/18/13, at 30. Before meeting Semenza, M.K.S. joined the military at age 17,
After M.K.S. met Semenza through mutual friends, she applied for a position with the Old Forge Police Department. N.T., 10/18/13, at 26. M.K.S. interviewed for a conditional position and received Semenza's support for hiring. Id. at 28-29. She was hired on a conditional basis. Id. at 28.
Also in January 2007, M.K.S. had to travel to Harrisburg to take the Municipal Police Officers Training Education Commission ("MPOTEC") test, and Semenza offered to take her. Id. at 30, 37. When they arrived in Harrisburg, M.K.S. discovered that Semenza had obtained one room with two beds. Id. at 30. That night, they slept in the same bed and had sexual intercourse. Id. at 30-31. She testified that she felt trapped but had no other choice than to stay with Semenza and drive home with him the following day. Id. In her words, she passed her training test with "flying colors". Id. at 31.
M.K.S. recalled one other sexual incident in the fall of 2008, over one year later. N.T., 10/18/13, at 32, 37. Semenza called her to meet for coffee. Semenza picked her up, drove her to a dark road, where they had sexual intercourse in the back of his vehicle. Id. at 32. Over this 1.5 year time frame, M.K.S. believed that Semenza gave praise for her work and privileges in the form of shift scheduling because they had sex. Id. at 32. But after the second
Semenza testified in his own defense. He denied penetrating N.B. digitally as well as having indecent contact with her, exposing himself to her, or kissing her. N.T., 10/21/13, at 280-81. He also denied the Zupons' testimony that he shopped for lingerie with N.B. and the testimony of other Commonwealth witnesses that he kissed N.B. romantically or groped her in a sexual manner. Id. at 259-64. He admitted, however, that he had a sexual relationship with M.K.S. Id. at 209.
Relevance is the threshold for admissibility of evidence. Commonwealth v. Cook, 597 Pa. 572, 952 A.2d 594, 612 (2008). "Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Pa.R.E. 401. "Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption regarding a material fact." Commonwealth v. Drumheller, 570 Pa. 117, 808 A.2d 893, 904 (2002). "All relevant evidence is admissible, except as otherwise provided by law. Evidence that is not relevant is not admissible." Pa.R.E. 402. In addition, "the court may exclude relevant evidence if its probative value is outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Pa.R.E. 403.
"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith." Pa.R.E. 404(b)(1). "Such evidence may be admissible for another purpose," however, "such as proving the existence of a common scheme, establishing an individual's motive, intent, or plan, or identifying a criminal defendant as the perpetrator of the offense charged." Pa.R.E. 404(b)(2).
When ruling upon the admissibility of evidence under the common scheme exception,
Commonwealth v. Tyson, 119 A.3d 353, 359 (Pa.Super.2015) (en banc) (emphasis added). To clarify the definition of "signature crimes," our Supreme Court
Commonwealth v. Roney, 622 Pa. 1, 79 A.3d 595, 606 (2013). In short, common scheme evidence is admissible "where the crimes are so related that proof of one tends to prove the others." Commonwealth v. Elliott, 549 Pa. 132, 700 A.2d 1243, 1249 (1997) (where defendant was accused of sexually assaulting and killing young woman he approached outside a particular club at 4:30 a.m., evidence that defendant similarly preyed upon three other young women as each of them left same club in early morning hours and then physically and/or sexually assaulted them was admissible under common scheme exception).
Review of multiple decisions from our Supreme Court and this Court convinces us that evidence of Semenza's affair with M.K.S. is inadmissible under the common scheme exception to Rule 404(b). See Roney, supra; Commonwealth v. Bryant, 515 Pa. 473, 530 A.2d 83 (1987) ("Bryant I"); Commonwealth v. Bryant, 531 Pa. 147, 611 A.2d 703 (1992) ("Bryant II"); Commonwealth v. Ross, 57 A.3d 85 (Pa.Super.2012) (en banc).
In Roney, the defendant was convicted of first degree murder and sentenced to death for shooting and killing a police officer in the course of a robbery at a PNC Bank. During post-conviction proceedings, the defendant argued that trial counsel was ineffective for failing to investigate and present evidence suggesting that one Travis Hall participated in the bank robbery and was the individual who shot the officer. To support this claim, the defendant averred that Hall (1) committed numerous armed robberies, some involving financial establishments, within the same time frame and within a similar geographical area as the PNC Bank robbery; (2) fired his gun during some of the robberies; (3) received aid from accomplices during the robberies; and (4) stole get-away vehicles
Id., 79 A.3d at 606.
Bryant I and Bryant II involved the same defendant. At his first trial (Bryant I), the defendant was convicted of first degree murder and sentenced to death for beating an elderly woman, Edith Steckle, to death in her Philadelphia home during a burglary. Steckle never regained consciousness after the beating, and there were no eyewitnesses to the incident or physical evidence recovered from the crime scene that incriminated the defendant. Several weeks after the crime, however, the police found items belonging to Steckle (a television, radio and ring) in the defendant's residence. During trial, the Commonwealth introduced evidence of a robbery committed by the defendant two months before the crime in question at a residence four blocks away in which the defendant severely beat an elderly woman, stole items from her house and defecated on her floor. Our Supreme Court held that evidence of the other robbery was not admissible as common scheme evidence:
Id., 530 A.2d at 86. The improper admission of evidence of the other robbery mandated a new trial. Id. at 86.
During the defendant's second trial (Bryant II), the Commonwealth introduced into evidence details of yet another crime that the defendant committed in 1988, ten years after the assault against Steckle. In the 1988 offense, the defendant broke into a house on his street in which a pregnant 23-year-old black female, Valerie Phillips, lived with her young son. The defendant beat Phillips on the head with his fists, dragged her upstairs to her bedroom, told her to lie on her stomach and fondled her vagina. Phillips screamed that she might deliver her baby since she was eight months pregnant. The defendant stopped his assault, took thirty dollars in cash and left the premises. The Commonwealth offered this evidence to persuade the jury that the man that attacked Phillips was the same man who killed the elderly female in the 1978 robbery. The jury convicted the defendant of first degree murder, but the Supreme Court again reversed on the ground that the crime against Phillips was inadmissible under a common scheme theory:
Bryant II, 611 A.2d at 706.
Finally, in Ross, this Court held, in the course of vacating the defendant's conviction for murdering his girlfriend, that the trial court abused its discretion by allowing the Commonwealth to introduce the
Id. at 104-05.
These decisions demonstrate that uncharged conduct is not admissible to prove a common scheme except when it shares unique features with the charged offenses that reflect the defendant's "signature". General similarities or insignificant similarities are insufficient; "more is required than the mere repeated commission of the same general class of crime." Bryant I, 530 A.2d at 86.
Certain general similarities exist between Semenza's relationships with N.B. and with M.K.S.: Semenza was substantially older than both females, hired both females after interviewing them, and was their superior in the workplace. These similarities, however, are not sufficiently unique to constitute Semenza's "signature". To the contrary, these facts are commonplace in many, and perhaps most, sexual harassment cases that arise in the workplace.
The differences between Semenza's relationships with N.B. and M.K.S. are more pronounced than their similarities. When M.K.S. met Semenza, it is virtually certain that she was no longer a minor, because she had served in the military and had graduated the Police Academy; N.B., on the other hand, was only 15 years old and a high school sophomore when she met Semenza. The nature of Semenza's sexual contact with M.K.S. differed from his alleged sexual contact with N.B. Whereas Semenza had vaginal intercourse with M.K.S. twice, N.B. claimed that Semenza digitally penetrated her twice, had her touch his penis once, and kissed and fondled her on other occasions. Semenza had sex with M.K.S. outside of her place of employment, in a hotel or in an automobile; N.B. claimed that Semenza digitally penetrated her and had her touch his penis in the firehouse. N.B. alleged that Semenza watched her take a shower in the firehouse; Semenza never watched M.K.S. shower. N.B. wanted a romantic relationship with Semenza; M.K.S. did not. Semenza gave gifts to N.B. such as a Claddagh ring and Maltese Cross; he did not give similar gifts to M.K.S. M.K.S. accused Semenza of withdrawing scheduling privileges when their physical relationship ended; N.B. did not accuse Semenza of withdrawing any privileges when their relationship faded away.
In its attempt to rebut Semenza's Rule 404(b) argument, the Commonwealth
Because many of the alleged similarities between Semenza's treatment of N.B. and M.K.S. are either generic or exaggerated, and because there are many dissimilarities in Semenza's treatment of these individuals, we conclude that the evidence of Semenza's relationship with M.K.S. is inadmissible under the common scheme exception to Rule 404(b). We also conclude that this evidence prejudiced Semenza's defense. The Commonwealth highlighted this evidence in its closing argument, stating:
In light of our remand for a new trial, we need not address Semenza's objections to his sentence in his third and fourth issues on appeal. On the other hand, we will address Semenza's second issue on appeal, a challenge to the jury instruction defining corruption of minors, so that it does not arise again on remand. See Drum v. Shaull Equipment & Supply Co., 787 A.2d 1050, 1059 (Pa.Super.2001) ("other issues remain which were raised by Appellants on appeal, have been briefed adequately, and are likely to recur on remand. For the guidance of the parties and the trial court, therefore, we will address these issues").
During trial, and in this appeal, Semenza objected to the following portion of the jury instruction that the trial court gave concerning corruption of minors:
N.T., 10/22/14, at 172-173 (emphasis added). According to Semenza, the corruption of minors instruction should have told the jury to examine whether any "sexual contact" corrupted or tended to corrupt the morals of a minor, not whether any "act" corrupted or tended to corrupt the minor's morals. Use of "act", Semenza insisted, improperly expanded what conduct the jury could consider and invited them to apply its own arbitrary standards in its deliberations. Consequently, said Semenza, the trial court permitted the jury to find him guilty for such innocuous acts
When evaluating the propriety of jury instructions,
Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa.Super.2014).
We conclude that the trial court accurately and adequately presented the law of corruption of minors in its jury instruction. Contrary to Semenza's strenuous argument, the corruption of minors statute explicitly requires the jury to examine the defendant's "acts". See 18 Pa.C.S. § 6301(a)(1)(i) ("whoever, being of the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of any minor less than 18 years of age ... commits a misdemeanor of the first degree") (emphasis added). "Any act" extends further than sexual misconduct. See Commonwealth v. Meszaros, 194 Pa.Super. 462, 168 A.2d 781, 782 (1961) ("`tending to corrupt,' like `contributing to delinquency,' is a broad term involving conduct toward a child in an unlimited variety of ways which tends to produce or to encourage or to continue conduct of the child which would amount to delinquent conduct"). Conversely, section 6301 does not mention "sexual conduct", so it is questionable whether this term belongs in a jury instruction on corruption of minors.
Moreover, the final sentence of the passage in question, which defines "actions that tend to corrupt the morals of a minor" as "those that would offend the common sense of the community and the sense of decency, propriety and morality which most people entertain," is completely proper, for we have used this very language in multiple decisions to clarify the offense of corruption of minors. As we held last year:
Commonwealth v. Slocum, 86 A.3d 272, 277 (Pa.Super.2014) (quoting Commonwealth v. Pankraz, 382 Pa.Super. 116, 554 A.2d 974, 977 (1989); Commonwealth v. Randall, 183 Pa.Super. 603, 133 A.2d 276, 280 (1957)).
Based on Semenza's meritorious argument in his first issue on appeal, we reverse and remand for a new trial. We find no merit in Semenza's second argument on appeal. We do not address Semenza's third and fourth arguments due to our disposition of his first argument.
Judgment of sentence vacated. Case remanded for a new trial.