J-S45008-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JUSTIN M. BURKE : : Appellant : No. 428 MDA 2024 Appeal from the Judgment of Sentence Entered January 31, 2024 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0006695-2019

BEFORE: OLSON, J., DUBOW, J., and McLAUGHLIN, J.

MEMORANDUM BY OLSON, J.: FILED: DECEMBER 30, 2024 Appellant, Justin M. Burke, appeals from the judgment of sentence entered on January 31, 2024, as made final by the denial of Appellant’s post-sentence motion on February 26, 2024. We affirm.

The trial court thoroughly summarized the underlying facts and procedural posture of this case: In the Spring of 2019, Appellant was introduced to [the] [19]-year-old [victim, G.E.]. At the time, [G.E.] was dating one of Appellant's best friends, Mitch Bitner. In the months that followed, [G.E.] and Mitch frequently socialized with Appellant and his fiancée. In June, the two couples vacationed together in Florida.

On July 7, 2019, Appellant invited [G.E.] to go with him to York, Pennsylvania to purchase fireworks for an Independence Day celebration scheduled later that evening. [G.E.] met Appellant at his house and they drove together to York, purchased the fireworks, and made several other stops.

When they returned to Appellant's house, he told [G.E.] that she needed to come inside to see his dog. Although [G.E.]

J-S45008-24

initially declined, Appellant insisted that she go inside with him.

When they were inside the house, Appellant told [G.E.] that she had to go into his bedroom to play with the dog because the dog did not get along with his pet cat. [G.E.] and Appellant went into the bedroom together and chatted while [G.E.] played with the dog on the floor. After a few minutes, Defendant asked [G.E.] if she wanted to lay with him on his bed to watch a movie. [G.E.] replied that she did want to watch a movie but preferred to stay on the floor. Appellant turned on a movie and pulled a desk chair next to the bed for [G.E.] to sit on.

As the movie played, Appellant began touching [G.E.’s] body with his feet. Even though [G.E.] asked him to stop, Appellant continued and lifted up her dress with his toes. [G.E.] told Appellant that it was time for her to leave and reached down to grab her car keys from the floor. At that moment, Appellant grabbed [G.E.] by the wrist and pulled her onto the bed. Appellant climbed on top of [G.E.] and straddled her. He used one hand to hold [G.E.’s] wrist down and, with his other hand, Appellant began removing [G.E.’s] dress. [G.E.] repeatedly asked Appellant to stop.

After Appellant pulled [G.E.’s] dress off, he started fingering her vagina. [G.E.] continually pleaded with him to “stop, stop, stop.” [G.E.] tried to pull Appellant's fingers out of her vagina, but Appellant told her to “shut up, shut up,” and assured her that she was “fine.” Appellant then took off his own pants. [G.E.] again told Appellant that it was time for her to leave. Instead of allowing [G.E.] to leave, Appellant grabbed the back of her head and forced her down to his penis. He told [G.E.] to “lick it.” When she did not comply, Appellant put both of his hands on [G.E.’s] head, held her down, and started thrusting his penis inside of her mouth.

When [G.E.] refused to participate in giving Appellant oral sex, he pulled her up by her hair and made her straddle him.

He wrapped both of his arms around [G.E.’s] back and held her tightly against his body. Appellant then used one hand to force his penis inside of [G.E.’s] vagina. [G.E.’s] vagina was dry and Appellant was struggling to fully penetrate her. [G.E.] began crying and continued to beg Appellant to stop.

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Appellant became frustrated and told [G.E.] to “grab the fucking lube.” Appellant told [G.E.] where to find it and she complied.

When [G.E.] returned to the bed, she again told Appellant that it was time for her to go and tried to get her keys for a second time. Appellant grabbed her and pulled her back onto the bed. While Appellant held [G.E.] with one arm, he applied lubricant to his own penis and inserted it into [G.E.’s] vagina. [G.E.] continued to ask Appellant to stop and begged him to think about his fiancée. Appellant continued to penetrate her.

Appellant then pulled his penis out of [G.E.’s] vagina, pushed [G.E.’s] head to his groin, forced his penis into her mouth, and ejaculated in her mouth. After ejaculating, Appellant got off the bed and went to the bathroom. He began laughing and asked [G.E.] if she thought that his fiancée would like to have a “threesome” with them. While Appellant was in the bathroom, [G.E.] was finally able to grab her keys, get dressed, and leave the apartment.

The next day, [G.E.’s] sister drove her to Lancaster General Hospital where she underwent a sexual assault examination.

The examination revealed redness, swelling, and tenderness to [G.E.’s] vagina from her external labia all the way to her cervix, which was consistent with forceful intercourse. The SAFE nurse encouraged [G.E.] to report the assault to the police.

A few days after the assault, [G.E.] met with Detective Matthew Shuey from the Elizabethtown Police Department for an interview. Following the interview and further investigation, Detective Shuey asked [G.E.] whether she would be comfortable meeting with Appellant while wearing a wire. [G.E.] agreed to participate.

[G.E.] first met with Appellant on August 29, 2019, at Rita's Italian Ice in Elizabethtown. Undercover detectives were on scene during the meeting, could see [G.E.] and Appellant, and could hear their entire conversation through a listening device that [G.E.] had with her. The conversation was also recorded. The investigating officers instructed [G.E.] to be

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as nice as possible during the meeting and to act like nothing was wrong to encourage Appellant [to] speak freely.

During the meeting, Appellant apologized and admitted that he was “still not sure exactly what happened.” He told [G.E.] that he had “fucked up” and that he “wish[ed] that if [he] did that, it wasn't with a friend,” but then stated that “ultimately [he] could be in jail if it wasn't [with a friend].” Appellant also said: What does that make me? What does that mean? That's the question I want answered. That's what I need to figure out and that's honestly why I'm in the counseling.

I go every week, every Monday.

...

I go every Monday with these guys and we talk about similar stuff every Monday. And one of the guys had done what I did to you to his wife . . . they're married, and he was in prison for eight years. And she didn't want it, and it was not consensual, in regards that she did not consent.

He was in prison for eight years and now has five years probation and has to register for a sex offender for the rest of his life. He can't be around kids. . . . He said, you'll never understand what they felt unless you talk to them.

In response, [G.E.] told Appellant that “it wasn't the best experience” and Appellant said he “wish[ed] he could take it back.” [G.E.] stated that she, too, had started going to counseling on Mondays and that she is “getting through it.”

[G.E.] agreed to a second wired conversation with Appellant.

She met Appellant on September 19, 2019. Like the first operation, undercover detectives were on scene during the meeting, could see [G.E.] and Appellant, and could hear their entire conversation through a listening device that [G.E.] had with her. During this meeting, both Appellant and [G.E.] again spoke about going to counseling. Appellant also said that he “had a knot in [his] stomach for a while . . . not only because [he] was scared, but because [he] hurt [G.E.] and also because [he] knew [he] did something wrong.” When [G.E.] asked what he was afraid of, he replied, -4- J-S45008-24

If you said one thing, if you went to the police right now and said one thing about it, there's not a question that I'm in jail for years. So, that was, still is scary to be honest, sorry.

[G.E.] and Appellant exchanged the following words: [G.E.:] Did you have to like, talk about me at your meeting?

[Appellant:] So, no name, but yes, definitely. . . . So, you have to go through a list of all these like, you know, possible victims, you know? Even if it's not, not only you being the one victim, but possible victims as well, so, I mean, they basically tear it apart.

[G.E.:] Well, like with you, like, like say you went in there, right? And you were like, since you and you told them about me, how don't they like, didn't you get nervous like they were going to arrest you right there? For rape or something?

[Appellant:] So, the one thing is that, they have confidentiality for telling the truth. They can't. If you went in there, yea, is basically what I'm saying.

...

[Appellant:] None of it's comfortable to say in front of you ever. Ever.

[G.E.:] At least it wasn't a stranger. Like they would have really been . . .

[Appellant:] Sometimes I think it would have been better.

[G.E.:] They would have went right to the cops, though.

[Appellant:] If they knew me, if they knew how to get a hold of me or report it.

[G.E.:] That's true.

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[Appellant:] You know what I mean? Like, sometimes, then I wouldn't have lost a friendship or hurt someone I knew. I mean, sometimes, yes, I agree with you, but also I don't, you know what I mean?

...

[G.E.:] Well, at least you see what you did. I mean, that's a plus, you know what I mean? They say once you accept it.

[Appellant:] Whatever.

[G.E.:] Like for me, like, I didn't do counseling for the first month and that was really hard, but once I got into counseling and talking about it, it makes it a lot easier to get past it. And then being able to talk to you about it, get everything out in the air.

[Appellant:] Okay. So, then another question comes up.

Say, five or ten years from now, blah, blah, blah, you can feel comfortable being friends around me?

[G.E.:] Yea.

[Appellant:] That's something you can completely get over?

[G.E.:] I feel not fully get over.

[Appellant:] Not forget.

[G.E.:] Not forget, maybe not be around you by myself, but I mean like in a group setting? I don't think I'd mind, I guess.

[Appellant:] That's fair. I don't blame you for that. I will never do it again, but I don't blame you for setting up a boundary. I don't blame you.

[G.E.:] I mean baby steps.

[Appellant:] I'm just, yea. I'm just thinking through, I mean.

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[G.E.:] Not the easiest to get over right away. But counselling does help one-on-one. It does a lot.

[Appellant:] I believe it. I mean obviously it's confidentially, so I never use your name. I call you Bob.

...

[Appellant:] I can honestly say though, my intention was never to hurt you. That's for sure. It was solely selfish, like for myself, you know what I mean? I'd never, it doesn't sound any better, but like in that moment I can remember you were more of an object than a person.

Like, it wasn't like, fuck [G.E.], go get her or whatever.

There was no anger, there was no, I don't know, it was just completely selfish. Like I wanted it, I'm gonna get it because I can or whatever. Whatever thought I had then but, it's completely selfish, it wasn't anything that you did, but.

[G.E.:] It hurts, but I think we can get past it. I mean, it's better than you not seeing what you did.

[Appellant:] Well, for sure, yes.

[G.E.:] Because that would have probably pissed, pissed me off more if you just tried to like it like, oh no, you know what I mean?

[Appellant:] Yea, fuck that, I didn't do that.

[G.E.:] Yea. And that you're willing to admit it. I don't know, see what you did. It makes it easier for me knowing that like, you see it too. I'm not crazy or anything.

[Appellant:] Yea, I fucked up, I mean. You know what I mean? Nothing else, anything else would be a lie. I can't do that.

Detective Shuey ultimately filed the following charges against Appellant: rape by forcible compulsion; involuntary deviate sexual intercourse by forcible compulsion; two counts of sexual assault; two counts of aggravated indecent assault; -7- J-S45008-24

and three counts of indecent assault. A jury trial commenced on November 2, 2020, and was presided over by the now- retired Honorable Howard Knisely.

Prior to the 2020 trial, the Commonwealth filed a notice of intent to introduce prior bad acts pursuant to Pa.R.E. 404(b) in the form of testimony from two women who Appellant had sexually assaulted at a college party in 2017. Judge Knisely conditionally granted the Commonwealth's Motion; the evidence was deemed admissible for the sole purpose of determining Appellant's absence of mistake regarding whether [G.E.] consented to the sexual contact. At trial, the women testified about how Appellant had non-consensually touched their vaginas and breasts. The Commonwealth also questioned Appellant about the charges of indecent assault that were filed against him because of the non-consensual touching and his resultant participation in the Accelerated Rehabilitative Disposition program.

At the close of the 2020 trial, the jury convicted Appellant of all counts and Judge Knisely sentenced Appellant to a term of 10 to 20 years incarceration. Appellant filed a timely appeal to the Superior Court, arguing that Judge Knisely had erred in allowing testimony of the 2017 assaults. Appellant argued that the Court should have deemed the evidence inadmissible because the 2017 crimes were significantly different than the circumstances surrounding his sexual contact with [G.E.]. Specifically, Appellant argued that in the 2017 assaults, he stopped touching the victims as soon as he was asked while he allegedly committed forceable sexual acts against [G.E.’s] repeated objections. He also argued that in the 2017 assaults, he was in a public space, contrasted against the allegation that he assaulted [G.E.] in a closed bedroom.

In a May 10, 2022, [memorandum], the Superior Court determined as follows: Our review discloses that the trial court's analysis is not supported by the record and the law. Here, [Appellant's] actions were not so unusual and distinctive as to overcome the extreme prejudice resulting from such evidence's admission. Indeed, although each victim ostensibly had a friendly relationship with [Appellant] -8- J-S45008-24

before the sexual abuse occurred, and identified [Appellant] as her abuser, [Appellant] immediately stopped touching [the 2017 victims] after his initial, nonconsensual touching but allegedly continued his assault on [G.E.] despite her protests to stop. Moreover, [Appellant] assaulted [the 2017 victims] in a hallway and touched them on their breasts and vaginas with his hands, while here, the Commonwealth asserts he raped [G.E.] vaginally in his bedroom.

The similarities between the cases did not manifest a signature method that went beyond ordinary details typical of crimes of this class and fail to reflect an absence of mistake regarding [G.E.’s] consent. In sum, the probative value of this evidence is outweighed by the potential for prejudice to the defense, as it could confuse the jury or result in unfair prejudice, in suggesting a decision on an improper basis or to divert the jury's attention away from its duty of weighing the evidence impartially. Accordingly, we conclude that the trial court abused its discretion when it determined that such evidence was admissible to prove [Appellant's] absence of mistake regarding [G.E.’s] consent.

Commonwealth v. Burke, [279 A.3d 1241 (Pa. Super. 2022) (non-precedential decision) (citations and quotation marks omitted)].

The Superior Court reversed the judgment of sentence and remanded the case for a new trial.

The matter was . . . ultimately scheduled for trial to commence on October 16, 2023. In anticipation of trial, Appellant filed a motion in limine requesting, inter alia, that [the trial court] issue an order directing the “Commonwealth to sanitize any intercepted wire recordings to prevent any mention of [Appellant] receiving counseling and the reason for said counseling.” In support of this request, Appellant argued that “[a]llowing this evidence at trial would create a backdoor route to introduce [Appellant's] prior bad acts, which the Pennsylvania Superior Court, in its remand to this Court, has determined may not be admitted at the new trial.”

On October 11, 2023, [the trial court] issued an order stating that the following wire excerpt was admissible at trial: -9- J-S45008-24

[Appellant:] But I go every Monday and talk with these guys and we talk about similar stuff every Monday. And one of the guys had done what I did to you to his wife, they're married, and he was in prison for eight years. And she didn't want it, and it was not consensual, in regards that she did not consent. He was in prison for eight years and now has five years of probation and has to register as a sex offender for the rest of his life. He can't be around kids, can't be, you know, all this stuff and he gave me advice and to talk to you was the first thing he said. He said, you'll never understand what they felt unless you talk to them. And I still don't think we really talked about your feelings, but at least we're talking now, you know what I mean?

[G.E.:] Yeah.

[Appellant:] But, I mean, that's exactly what he said.

Talk to her first, get to know exactly how she felt because you'll never know. You made her feel some type of way, but she'll never know exactly what that is, until you actually, and most people don't get the chance to ask, you know? And so, I appreciate that, you know? At least I get to talk to you regardless how it, the outcome, you know?

[G.E.:] I mean, it wasn't the best experience.

[Appellant:] I understand that. I wish I could take it back, I really do.

[The trial court] also reserved a ruling on the remainder of Appellant's motion until trial.

On October 12, 2023, Appellant filed an amended motion in limine requesting, among other things, a total prohibition on any mention – from the wire recordings or otherwise – that Appellant was undergoing counseling. On October 16, 2023, [the trial court] issued an order specifically delineating the portions of the wire recording that were inadmissible by attaching a redacted transcription of the recordings as “Exhibit A.” The redactions excluded references to Appellant being on probation, his prior sexual assault convictions, and - 10 - J-S45008-24

any intimation that his counseling was court-ordered or related to past sexual assaults. However, [the trial court] did not grant Appellant's request to have all references to counseling wiped from the recordings.

Following a four-day trial, the jury convicted Appellant of the following crimes: involuntary deviate sexual intercourse, two counts of sexual assault, and two counts of indecent assault.[1] Appellant was acquitted of rape, aggravated indecent assault by forcible compulsion, and one count of indecent assault. After receiving a pre-sentence investigation [report], [the trial court] presided over a Sexually Violent Predator and sentencing hearing on January 31, 2024. At the close of the hearing, [the trial court] determined that Appellant fit the Sexually Violent Predator criteria and [the trial court] sentenced Appellant to an aggregate term of incarceration of 11 to 22 years.

Trial Court Opinion, 5/21/24, at 1-14 (citations and some capitalization and corrections omitted).

The trial court denied Appellant’s post-sentence motion on February 26, 2024 and Appellant filed a timely notice of appeal. Appellant raises one claim to this Court: Did the trial court err in admitting recorded statements [Appellant] made which referred to his being in counseling and the reason for his being in counseling, as these statements improperly led the jury to the conclusion that he had previously been accused of and/or convicted of sexual offenses?

Appellant’s Brief at 6.

We have reviewed the briefs of the parties, the relevant law, the certified record, and the opinion of the able trial court judge, the Honorable Jeffery D. ____________________________________________

1 18 Pa.C.S.A. §§ 3123(a)(1), 3124.1, and 3126(a)(2), respectively.

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Wright. We conclude that Appellant is not entitled to relief in this case, for the reasons expressed in Judge Wright’s May 21, 2024 opinion. Therefore, we affirm on the basis of Judge Wright’s able opinion and adopt it as our own.

In any future filing with this or any other court addressing this ruling, the filing party shall attach a copy of Judge Wright’s May 21, 2024 opinion, with the name of the victim redacted.

Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 12/30/2024

- 12 - Circulated 12/02/2024 01.31 01:31 PM

THE .COURT IN THE Co ?40-N PLEAS 0F, COMMON COURT OF PLEAS OF OF. LANCASTER LANCASTER.. COUNTY, PENNSYLVANIA CRIMINAL

COMMONWEALTH OF PENNSYLVANIA 6695--2019 6695--2019 V. 428 MDA MEM 2024 2024

JUSTIN JUSTIN K.

M. BURKE

PA. R.A.P. 19:25.0PIINION PA.RA.P. 1925 OPINION BY: WRIGHT, BY VVRIG.hiT, I J May 16, 2024 Justin M. Burke Justin M. Burke-(" Appellant") has filed a ("Appellant") a*caunseled counseled Appeai Appeal to the Superior Court from Court from the the.Judgrne,rit Judgment of of Seritence fallowing. his imposed following Sentence imposed his convictions c6nwictions.of of Involuntary Deviate Involuntary Deviate Sexual Sexual -Intercourse by For Intercourse by Cible,Cornpulsion, Forcible Compulsion, two counts of two counts of Sexual Assault, Sexual Assault, and and two two. counts counts Hof of Indecent Assault. This Indecent Assault. Opinion is This Opinion is written written.

pursuant to pursuant to Rule Appellate Procedure. For Pennsylvania Rules of Appefiate Rule. 1925(a) of the Pennsylvania.. Fb.r

the: reasons that the reasons fo.ilow.., Appellant's that follow, Appellant's single single claim claim bf error is of error me:ritless and is meritless his and his Sentence.shoutd Judgment -of Sentence should be affirmed.

BACKGROUND In the Spring 21J19, Appellant ' Spring of 2019, was introduced was introduced : to nineteen- year-bld nineteen-year-old (Notes (Notes of Testirnony Testimony,;-Jury Jury Trial, Oct. 16-1.9, at 64, 290 Oct. 16-19, [hereinafter [hereinafter ""N.T N..T, at at " "?). }. At*the At the time, G~. was. dating one of Appellant's was AppeIIant's

I

------------------------. - . best firiends., frienas, Mitch Bitner. ((N.T Mitch Bitner. 64, 290).

N.T. -at 64, 290). In the months that that, followed, 'GK. ((,E. and Mitch frequently frequently socialized with Appellant an.d.:his. and his fiance. N.T. at fianc~. '((N.T. at.

65-67). In June, the two couples 65-67). in Florida. couples vacationed together in Florida. ((N,T N.T: at at.65- 65- 67, 290).

290) On * Ju.y On July 7, 2019, 2.0I9,.Appeliarit (C go with invited` ;•,, - to go Appellant invitea him: to York, with him York..

Pennsylvania to -purchase fireworks fireworks .for for ,an an Independence Day celebration scheduled tater later that evening. evening. ((N.T, N.T. at.69-70).

69-7Q). K.U.. met et Appellant at at * his and. they drove together house and together to York, purchased the fireworks, and and made several other stops. stops. ((N.T.

N.T. at 72-73). When they returned returned to Appellant's house, told ( C.t. that he tole«Gt. that she needed to come inside to to. see his dog. (N.T. at. dog. (.N.T. at 73 -74).

73-74) Although Although CE. initially initially de C,C; cli ned A declined, ppe llant insisted that she.go Appellant ; she go inside with him. (N.T. at 73-74). (NT. 73-74) When they were inside the house, Appellant tot when told (G.C.

CC!=':C: tat that- she she * had to go into his bedroom bedroorn10 not- get along with to play with the dog because the dog did not pet cat. his pet cat. ((N.T, N.T.. at 74-75). Cc. and Appellant Appellant went into the bedroom 'together together and white CG. JL played with the and: chatted while Gk. the .dog dog on th:e. the floor.. floor. ((N.T. at N.T.' at 75)_ After a 75). a few minutes, minutes; Defendant askee asked GE._ t sne wanted to tay if she lay with ► iitli him

his . bed on his bed. to to .watch a movie. watch a Movie. (N.T. 7:5). .• (N.T. at 75, .C. replied. that she. ,L.. replied she did want to a movie but preferred watch a preferred to stay on the floor. (N,T. at 75).

7S). Appellant_ Appellant a movie and pulled a turned on a t• a desk cha.r chair next to the bed toed for - } to sit on, foe .t»to on. (N.T. at 75). (N.T 75). _, Lhe:movie As the P movie played, Appellant began touching (&, C • G•; body with his feet. (N.T. at (N.T. at- 76). Even though • though (Cc asked him to stop Appellant:contin,ued stop,; Appelant continued and

lifted. up lifted up her dress with his toes. toes. ((N.T N.T. at. 76). G at 76), to l rG:. :told dAppellant that t it was time for her to leave and reached down to grab her ear keys: from th car keys thee floor. . floor (N.T. at. (N.T 76). At that. at 78). momen ;r, Appellant that moment, grabbed G. .Appel lant grabbed G-•. and. puled by the wrist and pulled' bed. ((N.T. her onto the bed. N.T: at at..75). climbed on top o C&.

76). Appellant -climbed. and her. (N.T. straddled her. 77). fie (N.T. at 77). hold GE. est He used one hand to ho wrist down and, halid, Appellant with his other hand, Appellant began removing [••-s began removing G.&_ ress. dress.; ((N.T N.T. at 77). <,.C.. repeatedly ., repeate-dly asked. Appel [ a*nt..to.stop. asked Appellant to stop. ((N.T N:T. at 77) 77).

After Appellant puttee g.Cs pul.led'O. Cli dress oft, aress off, he started started - fingering her vagina. (N.T. at 77). G.e.

77). G.& pleaded with hi'm continually pleaded him to "stop, stop, stop." to stop, stop." ((N.T N.T. at 77).

77. Ce tried to pull Appellant's Fmgers fingers . out of her vagina,, vagina, but Appellant toid her . to her to ""shut shut up, shut up," Appellant then took olf was- time for her that it was u.p," and assured her that she was off his own pants.

her- to pants. ((N.T.

to. leave.

N.J. at leave. ((N.T 79). < at .79).

N :T. at at. 79.) was ""fine." 3.d: Iistead of Instead G. tine." ((N.T.

N.T. at 78) 78).

again told Appellant orallowing G.€. allowing G.C. to leave, Appellant grabbed the back of her head his.. penis lead and forced her down to his peri_is. (N.T. at (N.. at:79).

79). He told C• tole G5- to. to`--`lick lick it. it." ((N.T.

N,T..at 79)*. at 79). no tcomply, When she did not cbrnp ly, Appellant put .both of his hands on kt z ei on&cs head, held her down, and started mouth.. ((N.T thrusting his penis inside of her mouth. N.T. at 79.80) 79-80).

Where G,c. refused to participate inin giving Appellant oral sex, When G.(f . sex; he pulled :

:h her6r -up LIP by her hair flair and and : made her straddle him hirm .((N.T.

N.T. at 80). ile wrapped both tie _, of his arms around.C,± arourid:C.. } held her tightly back and held tightly* against . body. ((N.T his body. N.T, at at* N). . Appellant then used one 80}. one- hand to force his penis inside of 4GIIE. , vagina. inside ofGc, (N.T. at 80)_CC (.N..T, at 8.0), O.•. f wa.s:dry.and vagina was dry and Appeliant.was Appellant was struggling to to.fuily fully her, ((N.T. penetrate her at 80-81). C.C.

N:T.. at 6,&. crying and continued began crying conti.riued to beg beg.

Ap.peilant.

Appellant to stop. stop. .((N.T.

N.T. at at..80-81).

80-81). Appellant :b(ecame became frustrated and told "grab the fucking to "grab fucking. iube." iube," ((N.T.

N.T...at told at 81). Appellant to1Gf, 2where whereto to find it and.she and she -complied. complied. ((N.T.

N.T.. at 81-82).

81 -821).

When G.. the bed, she again told returned to the that*lt*was told Appellant that it was time go. and tried to yet for her to go get her keys keys for aasecond time time. ((N.T.

N.T. at at'82): 82).

Appellant grabbed her and pulled her Appellant grabbed - her back onto the bed. bed. ((N.T. 82). While N.T. at 82)

Appellant heye &{ held Ci'.•. with oh .arm, th one lubricant*`to arm, he -applied lubricant hJs own to his own. penis and inserted it iinto f :C ` nto&.(s Vagina. vagina. ((N.T. &~.

N.-T. at 83). 0;L . continued. to ask Appellant continued begged him to stop -and begged hire to think about- fiance. ((N.T. about his fianc~. N.T. at 83}.

83). Appellant, continued, N.T. at 84). her.: ((N.T. continued to penetrate her, 84) ± • • Appellafrit.then Appellant pulled his penis out of then pulled of G.C.>,, vagina, pushed6.C.4% pushed. : G.•-5 to - his groin, head to groin, forced his his. penis into her mouth, mouth., .and ejaculated. in her mouth and ejaculated mouth. (N.J, at 84). After ejaculating (N.T. Appellant got off the.bed ejaculating,; Appellant-got.off the bed and and went to the the. .bathroom. bathroom. ((N.T.

N:T. at 85).

8S). began laughing He began laughing, and asked 6X.: t asked6,K. if she thought thought that.his that Fiance would like his fianc~ lie to have a ""threesome" threesome" W* ith*them. with them. ((N.T.

N.T..at 85). While at 85), Appellant was in the bathroom, G.c, Appellant.was G waswas finally able to'grab to grab her keys, get aparEment. ((N dressed, and leave the apartment. N.T. at 85}: 85) The next day, day,. Gs C~x sister rove drove her to to. Lancaster General Hospital hospital she. underwent a where she sexdal assault examination. a sexual examination. ((N.T at..91)*.

N..T. at The.

91). The examihatiori redness, :swelling, examination revealed ,redness, swelling, and tenderness to Cc' tenderness. t '. , s , vagina frorn vagina from .her her external labia all the way dray to her cervix, which which hubs was consistent with. Forceful with forceful intercourse. intercourse. ((N.T at 203 N.T. at -04): The 203-04). The'SAFE encouraged C.C.

SAFE nurse -encouraged G.. to to report report the assault to the pohce police. ((N.T N.T. at -93) 53) - ,.

4: A few days A days after after-th.e the assault,. assault, ( • rnet met with Detective Matthew Shuey . from the Elizabethtown Police Department Department For are -interview. for an €nterview. ((N.T, N.T. at at 93). following Following the interview and further investigation, in.vestigptidrn, Detective Shuey asked G.Cs whether she whether she would would be be comfartable.meeting comfortable meeting with. Appellant while with Appellant while .wearing wearing a.wire: wire ~ (N.T. at 231-32). (N.T. 23L-3}.:. agreed to :participate, G.C. agreed participate. .((N.T.

N.T. at 231-32).

2.31-32)..

G.~.

G. first met with Appellant on trst on. August August 29, 2G1.9, 2019, at Rita's Italian Ice in in. .E €izabethtown..

Elizabethtown (N.T.. at 233), (NT, Were , on 233). Undercover detectives were on..scene the scene . during the meeting, could see G.€» C Z.*• and Appellant; Appellant, and could hear their their entire through- a conversation through a iis listening . device that&i tening device* C..C• :. had with her. her. ((N.T N.T. at 233- . The conversation 34) :. conversat€on. ,vas was also recorded. The investigating Officers instructed Ci-2to be as nice as possible during (r.»to clurk g. the meeting and to act like nothing was V•ra*F. vvrong to wrong to* encourage encourage* Appellant speak freely. freely. ((N.T, N.T. at at . 107), 30.7).

During.-the meeting, During meeting, Appellant apologized apologized and admitted that he was was ""still sti.11 exactly what mappene." not sure exactly happened. ;' (N.T. (N T, at 112, Commonwealth's £x.

Ex.. 4)., Fie 4), He told G. .: tat toluG. that he had had '"fucked fucked up" and; he "Wish[ed] and that he "wish(ed] that if [[he] he] did that, it wasn't with with aa friend," but then. that ""ultimately then stated that ultimately [[he] lie] could be in 1njail - jail if it t wasn't [[with wasn't with a friend." ((AN.T, alriend]. N.T-.at at 112., 112, Commonwealth's Ex, 4) Cammnonwealth's Fx 4), Appellant alee also.:

said: What that make me what does that: me? what What does that mean Teat's the mean? That's question I answered That's what I I want answered. I need to figure figure •aut out and that's honestly honestly. why I'm I'ln in' in the counseling. counseling.. I go every I go every Week, Mbnday. week, every Monday.

Ii . go qn every Monday with these these, guys and we talk about similar stuff every every Monday..

Monday. And one o*ne.of of the guys guys had done what I I did to you to his wife. wife ... .they're 'they're married married,; and he was •r 'in inprison eight years. And she prison for eight didn't want she didn't want it*, it, and and it was it was not consensual,.in consensual, in regards that she did not not consent. consent. He was He was in prison prison for eight eight:years years and now has five years years . probation and has to register register for aa sex offender for the rest of his life. He He can't around kids be around can't be kids..... He said; said, you'll never understand what they they felt. felt unless unless you talk to them. (N.T. at 112, Commonwealth's Ex. 4).

in response,Gt, In response, G_C, told Appellant Appellant. that that"'it the. best experience" wasn't. the "it wasn't experience" and acid Appellant said Appellant said he he ""wish[ed] wish[edI he he could could take take it hack." ((NT. t back." N.T. at at 112, 112, Corrirrionweaith's Ex Commonwealth's Ex.. 4)_ she, .

4). C ,.: stated that she, too, had started going to too, counsel l ing on Mondays counseling Mondays and that she.is she is ""getting getting through it." .((N.T.

N.T. at. 112, at I12, Commonwealth's Ex. 4).

&.f. ( a second wired conversation with Appellant. She met agreed to a Appellant on September 19; 2019: 19, 2019. Like the*first.operation, the first operation, undercover detectives. were on scene.during.the detectives see. G scene during the meeting, could see GtC► -and.AppeIlant, and Appellant, and could hear their entire conversation through aa listening, that.u.t dev.ice, that listening device &• had. with her. During ha During. this this. meeting, both Appellant and and %.f- again spoke about spoke. about going -to counseling, counseling, ((N,T.

N.T. at 112, Commonwealth's Commonwealth'. s Ex. Ex. ).

5). Appellant also said ". haci - that he "had aa knot in [[his] his.]. stomach for a a while white.. _ only because. not on:iy [he] was because [he] scare, but because [he] scared, but [he*] hurt G~, [ .C, jand also because .[[he] he] knew knew [[he] he]. (did did sornethi.ng wrong..." ((NT, smething wrong." N.T. at 1.12, 112, Commonwealth's Ex. Ex..5), 5). When G.{_ when aC`_ used asked what he was afraid afraid .of, of, he replied, If It you you said one thing, if one thing, if you went right now and went to the police right and said one thing about it, said:one it, there's thtre's .not a a question that. that I'm .in jail jail for years. So, that was, still stil.1 is scary scary to be honest., honest, sorry, Sorry (N.T. at 112, Commonwealth's Ex. (N.T. Ex..- 5).

Gt. and -Appellant exchanged exchani ed the following following words:

----------------- Did you you have to like, have to like, talk talk about abbut.-me your me at Your meeting?

Appellant: Appellant name, but yes., So, no name, definitely ,..,, yes, definitely , .. So, you have to gog,o through through a a list of all these like, you know, possible victims,:You you know? Even if if it's not, ot, not onlyonly you ypu' being being the one one \4ctirn, victim, but poss61e victims as well, so, I . mean, they possible ba.sicaily tear jt basically it apart.

r7 well, like. with Well, like with - you, you., like, like l'ske say say -you you went in there, right? And there, right? And you were like, you were like,- since since .you and you and you told there you them about. about me,m e:; .how don't. don't they like, dint you get.nervous didn't get nervous like they were going to arrest you right there? there? : For rape or'sorriething? or something?

Appellant: So, So, the one'one thing thing is that, they have confidentiality far for telling the the truth. truth, They can't.

If If -you went in there, yea, isis: basically what I'rn I'm saying. saying

Appellant: None -of it's comfortable cornl=artable to say in front of you ever. Ever ever Ever. r :C At. Ie*ast it At least it.W6sn't wasn't aa stranger- stranger. Like they would have really reall been.

Appellant: Appellant Sometimes I it.would I think .it better.. would have been better They would have. went have went right right to the cops, -thou gh.. though.

Appellant: If If they knew me, rne, f if -they knew how to. get . a to get a of * me or report it hold of it.

That's true.

Appellant: You know what X.I mean? mean? Like, sometimes, Lie, sometimes, then. then IIwouldn't have have lost lost .a a .frieridship friendship or hurt . someone I I knew. I mean., sometimes;- I mean, yes,. I sometimnes, yes, I agree agree with. with you; you, but also II don't, but -also don't, you you know know what I rne* an7 I mean? .** e •

weli, least you see Well, at least see what you you did. IYmean, mean,* that's a know- what a plus, you know what.II mean? They say once you accept accept- it.

Appellant.: Appellant whatever.

Whatever U'ke for me, like, Like tike,. II'didn't di@n't do counseling counseling for the first month and first month and that that was was really really hard, hard,. but but- once* once I gat got into into counseling counseling and and talking talking about about it, It it makes .it makes a lot it a lot..easier easier to to get past it. get past And then it. And then tale to being able to talk to you about about. it, get everything out in the air everything air.

Appellant: Appellant Okay. So, Okay So, then then 'another question comes another question comes* up up.

Say, five or Say, `five ten years or ten years from now ... blah, from now, blah, blah, blah., bla.h ; you blah, you . can can feel feel comfortable conifartable being being friends friends around me me? ?

c€ Yea.

Yea Appellant: Appellant That's something you can something you can. completely completely get gEt fluter? over?

11eel.not feel not -fu.ily get over. fully get over.

Appellant: Appellant: Not forget..

Not forget.

forget, maybe not be around you by Not forget, by c.€ ' myself ; but IImean myself, mean tike like in a group in a group setting? setting? I I -.don't-.think. don't think I'dI'd mind, mind., Itguess. guess.

Appellant: Appellant: That's fair: I That's fair I don't blame you don't blare you for that. IIW for that. M will *

never* do never do.it again; but it again, but I I dah."t don't blame: you for blare you for Setting setting up a boundary.. I a boundary I don't blame. blame you.

imean baby I baby steps steps.

Appellant: Appeliant: I'rn just, yea. f're just, yea. I'm just 1'm just thinking. thinking thi raugh, . through, I t mean. mean, cc. ': 6. NQt te Not the easiest to get right away. get over right away. But counseling does counseling help -one-on-one. does help one -on-one, ItIt. docs does a a lot. lot.

8.

Appellant:.

Appellant: II believe it.. it. : mean I obviously obviously it's confidentially, so I1. never use your your.name. name. IIcall you. Bob you Bob.

••• Appellant: Appellant: I I can honestly say though, though, my intention was hOrt you, never to hurt you. That's That's. for for sure.. sure. It was It was solely selfish, solely selfish,. like like. for For myself, myself, you you know what II .mean? mean? I'd I'd never, it it. doesn't sound any better, but lie but like in in that that .momept moment I remember you I can remember you were more were mare of of an object than an object than a person. Like, a person. Like, it it vvasn't wasn't whatever. whatever, like There fuck like,; tuck G.~.,< C r_, go -get her or Was ho anger, there was was no Was no, rio, I.I don't dont know, it. was. just it was completely selfish Just corp.eteiy selfish.

Uke IIwanted it, I'm gonna Like gonna -,get It get because lI* it because can or whatever.. whatever, thought: II had Whatever thought then but, it's then. it's com.pietely completely selfish, selfish, Itit wasn't. wasn't anything anything that you di d, but. you did,

It hurts, but but. IIthink we we can get pasr.A. past it. I mean,.

I mean, it's better than . you not you not .seeing. seeing what you did. did..

Appellant: Appellant: Welf, for Well, for sure, yes.

G.€ Because Because that that would have probably would have probably . pissed, pissed, pissed pissed me off more if you just tried tried to lie like it like, oh like, oh no, no, .you..knoW* you know what what I rnean. ?

I rear2 Appellant:.

Appellant: Yea, fuck that, I..didn't t in't co do that.

Yea.

Yea. willing to admit it.

And that you're wilting it I What you did. It makes it don't know, see what easier for'nr for me e knowing that like, :you see it too. tdo.

J.'m I'm not crazy or 0hything. or .anything Appellant: Appellant: Yea,.

Yea, II fucked up, up ;. T I mean. know. what You know What I I mean? Nothing Nothing else, else, anything anything else else.. would be be .a a lie. II'can't lie. do that can't do that. ((END END 51).

51)..

(N.T::at (NT. at 1.12., Corn rn pnw ea I 112, Commonwealth's th's Ex. Ex.. 5) 5).

.9

-···--------------------- Sauey ultimately filed the.

Detective Shuey the .following agairist Appellant; fol.owing charges against Appeliant; Rape by Rape by Forcible Compulsion; Compulsion; involuntary Involuntary Deviate Sexual Intercourse by Forci.b.ie Compulsion; Forcible Compulsion; two tWo counts of of-: Sexual Sexual _Assault; cournts:of Assault; two counts of Aggravated jndeten.t indecent Assault; Assault,-and three counts of of .Indecent.Assault.

Indecent Assault. A A jyry jury trial commenced on November -. on 2, 2020, 2, 2020, and was presided over by the the .now- retired Honorable now-retired Howard Knisely.

Howard Knisely, Prior to the 2020 trial; the Commonwealth trial, the Com`monweaith filed a a.notice notice of intent to introduce prior acts pursuant to prior bad acts to Pa.R.E. 40.4(b)..in Pa,R.E. 404(b) form .• of testim in the form testimony on..y .

From two women from Appellant had sexually assaulted women who Appeliant a:ssaWted at a a college party in 2017. Judge Knisely 2017. Judge Knis.ely conditionally conditionaliy:grarited granted the Commonwe alth's Motion; the Commonwealth's the. evidence was deemed admissible for*the purpose..of for the sole purpose of determining Appellants mistake. regarding Appellant's absence of mistake Ct regarding whether Cam-- conse.rited consented to the sexual contact. sexual contact. At trial, trial, the women testified about how Appeliant Appellant: had non- .consensually consensually touched their vaginas vaginas -and breasts. breasts, The.Com*non►iWealth The Commonwealth also questioned. Appellant questioned Appel lant about the the charges:of charges of Indecent Assault that were filed tiled against against him because. of•the because of the non-consensual touching and his resultant participation in participation in the the Accelerated Rehabilitative Disposition Accelerate Rehabiitotive Disposition' program program.

the. - At the close of -the 2020 trial, the Ory convicted jury con. Vi Appellant of Appellant of *all counts all counts ) and -edge Knisely sentenced Appellant to aa term of 10 to 20 years Judqe incarceration. Appellant incerceration. Appellant filed a a timely appeal to the Superior Cot.rrt, Court, arguing that Judge. Knisely . had erred Judge Knisely erred- in allowing testimony of the 2017 201.7 assaults.

argued that the Court sh* Appellant argued dl i should d have deemed deerned the. the evidence inadmissible the .2017 because the crimes 'Were 2017 crimes sighificantly different than the circumstances were significantly

surrounding with ¢& surrodnding. his sexual contact with , ,, . Specifically, Specifically ; Appellant argued argued that in the 2017 assaults, he stopped touching the in fhe victims as soon soon, as he .was asked while he allegedlyo allegedly committed forceable sexual sexuaC*acts agairist Gt.3 acts against - twb_ s repeated objections, He also objections. argued that in the 2.017 also argued in- a 2017 assaults, he was in a public space, contrasted against Che allegation against the allegation that he he.:assaulted t. assaulted C G in a bedroom. a closed bedroom *In.

In aa- May May 10, Qpiniari, the Superior Court determined.

2.022, Opinion, 10, 2022, as follows.:. determined as follows.

Dui- review discioses Our discloses that the trial court's court' s analysis is not supported by the record and the the- law. Here, .[[Appellant's] Here, Appellant's) actions were not so unusual unusual *andand distinctive as to overcome dvercome .the the extreme prejudice resulting from such evidence's admission. Indeed, Indeed, although although each vi6tiri ostensibly had. victim-tostensibly had aa friendly friendly relatii•nship relationship with with [ Appellant] [Appellant] before the sexual abuse occurred, occurred, identified [[Appellant] and identified Appellant] as herher .ahuse.•, abuser, [Appellant]`irTim.ediately [Appellant] touching [the immediately stopped touching victims ] 2Q 17 victims] [the 2017 after his initial nonconsensual touching but allegedly after continued - his assault on [G.·] continued [G,c:• •] despite her tier protests protests- to stop.

Moreover Moreover,; .[ Appellant] assaulted . [[the [Appellant] the 2017 victirhi victims]] in aa hallway and touched them on their hallway their.breasts breasts and vaginas with his hands, his hands, while while here, here, the. the Commonwealth Commonwealth asserts raped asserts he rape vaginally in [«]vaginaly in his his bedroom. bedroom.

The similarities between The similarities between the cases cases did did not nok manifest manifest a a signature signature .method method * that went -beyond ordinary details typical crimes. of this class of crimes ot and.fail class and fai to reflect an absence of of.m.i.stake mistake regarding [G •C-. regarding [GE_] consent. In sum, the the. probative probative . value value of this evidence is outweighed- by is outweighed try the the: poten6Io potential For for prejudice toto confuse :[the the defense, as it could confuse he jury jury or result in unfaif unfair prejudice., prejudice, in suggesting` suggesting a a decision on an improper basis or to divert the jury's jury's attention away from. its duty of weiglh.ing from its.duty weighing the the evidence im.partia:lly.. evidence. impartially. Accordingly, we we .conclu.d.e-tha.t conclude that the trial court ab U* sed its court abused its discretion Whe' whenn it it . determined determined that that such such evidence was admissible admissible to p.rpve prove .[[Appellant's] Appellant's] absence of of [ O&A.:s -J] mistake regarding [6.d.s ] consent.

Commonwealth 'v. Commonwealth v. Burke, .No. 4.83 M0A No. 483 MDA :2021, 2022 - WI 2021, 2022 W1~ 1468355, at at '"4-5 4_*5 ((Pa. Pa..

Super: May Super. May 10, 10, . 2022) 2022) ((unpublished) unpublished) ((internal internal citations citabons. and an.d quotations .omitted. omitted).

The Superior Court The Superior Ioust reversed the judgment judgment of sentence and remanded the case for for aanew new. trial. trial.

The matter was The matter assigned to was assigned me on to me on August August 31, 3.1, 2022, and was 2022, and was ultimately ultimately scheduled for scheduled for trial trial to.commence on October to commence on October 1b, 2023. In 16, 2023. anticipation of trial, In anticipation a* Motion in Umine.

Appellant. filed a Appellant requesting, inter Limine requesting, inter alie, alid, that that I I issue an order issue an order directing the directing the " "Commonwealth intercepted vrire Commonwealth -to sanitize any intercepted recordings to wire recordings to prevenL any prevent of [[Appellant] any mention of Appellant] receiving and the reason for said receiving counseling and counseling," In counseling." in support of this request,. request, Appellarit argued. that Appellant argued "[ aIllowing. this that "[a]fiowing evidence bt create.a. at trial would create ba.ckdoar.route a backdoor route to introduce [Ap.pellant's] prior introduce [Appellant's] acts, wmuch bad acts, which the Pennsylvania Perinsylvania Superior Court, in its remand .to its remand to this Court,.

T Court, determined * has determined has may not may not be admitted at ,the new new trial." trial." On October 1I., 11, 2023, I1 issued issued:an an order Order stating thaL`the. stating that : following wire the following wire.excerpt. excerpt was admissible was admissible at at trial: trial; Appellant: Appellant. But IIgo [ut go. every every Monday Monday. and talk with these guys and guys and we we talktalk about about similar sip"Iiiar :stuff every stuff every Monday.

Monday. And.

And one one of of the the guys guys had had done done what what II .di didl to, a you to to you to his wife, wife:, they're they're married, and he ' was: he was inin prison for eight years. And she she didn`t want i.t; (didn't it, and it- was not it was riot . consensual, consensuaI, in regards that she did consent.- He was in id not consent. prison prison for eigift eight years years and now has five years of * probation' probation an and ahs to register as a a sex offender for for tli*e the rest of his life. life.. hie He can't cant - be ,around around kids, can't be, you know, all all- this -stuff and he and he gave gave re me advice advice and and to talk to you was the first thing thing he said. He :said, He said, you'll never understand what they felt. felt unless you talk to them. And I I still. don.`t think we still don't w'e really talked feelings, but about your feelings, but at least we're we're, talking now, you. you know know what what I l mean? mean?

cc Yea h.

Yeah.

·--··-------------- Appe.11ant: Appellant; But But,;.II mean, rnean, that's exactly what he tie said. Taik. said, Talk to her first, get to know exactly exactly how she felt because you'll never . know..You made her know. tier feel some. some type type of way. way,;. but but. she'll never know exactly what that is, until you actually, and exactly an most people don't get the chance to -ask, you know? And so, IIappreciate that, you you' know?

At Ileast At. east . I I get get to talk to- to you regardless how It, t, the: outcome, you know the know?

Imean, it wasn't the best experience experience..

Appellant: Appellant. that.. * II. understand that I I wish II. could take take...it it back, I rea liy do, I really do.

My Order aso My also reserved reserved a remainder of P,ppellant's a ruling on the remamder Appellant's Motion until trial. trial October* 12, 2023, On October Lini ne 2023, Appellant filed an Amended Motion in Limine requesting,. among requesting, among other other- things, things, aa * total prohibition promibition on any mention--from rr 6n0on-from tbe the

wire recordings recordings or otherwise--that otherwise----that Appellant was was. undergoing counseling. counseiih.g. On 16, 2023, October 16, 2023, I an brde.r I issued an specifically delineating the .portions of the Order specificaly wire recording that were inadmissible by:attaching wre by attaching aa redacted transcription of recordings_ as the recordings tne as .""Exhibit Exhibit - The redactions A." The redafctions excluded references to : Appellant being on proba.tion,. pr-iar sexual. probation, his .prior anti. any intimation sexual assault convictions, and intima:don that his counseling was was- court -ordered or related to past court-ordered past :sexual sexual assaults.. assaults. However, I riot grant did not grant. Appellant's AppeilanL's request to have all a:ll references to to: counseling codnsoIing wiped from the. recordings. frorn the recordings.

Following aa €our=day trial, the jury convicted Appellant of the following four-day crimes: crimes. Involuntary Involuntary Deviate Sexual Intercourse, two counts of Sexual Sexual- Assault, A*ssau.lt. Appellant and two counts *of Indecent Assault. Appellant- was acquitted of of ,- Rape, Aggravated Indecent* Compulsion,; and one caurit:of Indecent Assault by -Forcible CompLilsion. Irnd.ecent count of Indecent "• 3 Assault, After Assault After receiving receiving aa Pre-Sentence Pre- Sentence: Investigation, Investigation, IIpresided presided over over a a Sexually Violent.

Sexually Predator and Violent Predator and Sentencing Sentencing Hearing on Jan ua ry' 31, 2024, At the January close of the hearing, hearing, I I determined that Appellant fit the Sexually Violent Predator criteria and II*sentenced predator sentenced Appellant Appellant to an aggregate term of incarceration of I*X to 2.2 Febr uary I2, years. On February 1.2 . ,2024, 2024, Appellant Appellant filed a a Post- .Sentence Sentence Motion arguing' aggregate sentence constituted aa manifest arguing that his aggregate abuse Duse of discretion and .was discretion an clearly unreasonable. was Clearly unreasonable-. . I1denied the on the Motion or 2C, 2024..

February .26, 2024 On March 27, 27, 224, Appellant filed a 2024, Appellant a..Notice Notice .of Appeal to the Superior Ciourt, at..4•8 Court, docketed at 428 MDA X024.

2024. 2% 8,20 On March :28, ' 24, IIdirected Appellant to 2024, file aa statement statement. of errors complained on: appeal pursuant to complaine of on to. Pa.R.A.P pa.'R..A*.P 1025.(b).

1925(0). . Appellant filed 2024, and the. ? 6, 2024., filed his Statement on April 26, the May :1, Commonwealth responded on My l, 2024.

2024 DISCUSSION In his Ws. Statement, Appellant ibdges lodges •j allegation: single* , a single allegation: that I I erred in admitting recorded admitting recoided statements which referred to his being in 1h counseling cou.nseiing and and.the the reasong tor for his. his being in. counseling. being in counseling.. According to Appellant, these statements state..rnents mproperl.y led the improperly the }u*ry jury -to conclude that he had been preViod sly accused of previously of and/or convicted of sexual offenses, which resulted in the.admission.of ev1dence the admission of evidence which was held inadmissible by by"the the Superior Court Court- after Appellant's Appellant's prior trial. prior trial above,. following Appellant's first trial, the Superior As referenced above, Superior Court determined that Appellant's Apl:)ellant's ' prior prior- crimes of sexual assault were inadmissible inadmissi,,)le under Pennsylvania Rule Rule* of Evidence 404(b).

4.04(b). ""Generally, Generally ; evidence euidence' of prior bad

acts.or.unrelated acts criminal activity or unrelated criminal activity is. inadmissible to is inadmissible show that to show that a a defendant clefen.dant acted acted conformity with those past acts oe in conformity show criminal or to show criminal propensity." propensity.

Commonwealth • Commonwealth v. Aikens, Aiken, 990 99.0 A.2d* A.2 1181, 1181, 1185 ((Pa. Pa. Super. Super 2010).

2010). However, for the reasons explained for herein, Appellant's explained herein, Appel.ant's recorded recorded statements regarding bis statements regarding his participation In participation counseling— as redacted in counseling--as redacted—; imply do not imply that he -simply hu had ha assadited ether assaulted other.women women prior to assaulting( priar'to- assaulting t. Thus, Thus,. Rule Rule 404(b) 404(b) has no has no applicability apphcabilit in coritext.and in this context A.ppellant's claim of.error and Appellant's ba.seiess.. of error is baseless .In their original, In their original, .upredacted unredacted form., form, * the the wire recordings redordings of of Appellant's Appeliant's conversations with .c did contain references with ► . C► dirk contain references to his counseling being court- court- ordered and related to his prior ordered prior assault convictions. convictions: Admissidn Admission of these statements would have statements unquestionably violated 404(b) and the,Superior have unquestionably the Superior Court's prior ruling, prior Consequently, I ruling. Consequently, iTieticulously reviewed I meticulously the wire reviewed the wire transcripts transcripts line line by by line and fine redactions that and made redactions both preserved that both the highly preserved the probative .n'alure highly probative of nature of Appellant's confessional statements Appellant's statements- and heeded the Superior Court's apt directive. directive Contrary to Appellant's Contrary Appellant's assertion, the redacted version of the recordings entered- as entered as trial trial exhibits exhibits and played for and played for the jury fury did 4.04(b) concerns id not trigger 404(b) or risk or risk violating violating the the Superior Court's prior Superior Court's prior order. Immediately prior order. Immediately prior to to mentioning .counseling mentioning when he first counseling when tG first met with ;C.6% ..; Appellant to.d told her that he had ""fucked had fucked up" up r and and ""was was scared scared.for he ""wasn't for days" because he wasn't..sure sure where [she] going to go was going go with this." this.." ((N.T N.T. at 112, Ca monwealth's.EEx.

1I2, Commonwealth's . A).

4). He then asked, rhetorically, asked, rhetorically ;, "What " What does do.5 that that make make me? me?. What What. does does that that mean?" mean.?" and and made the mnade the following staterrierit: statement:

IS That's the That's the question question IIwant answered. That's what what .II need to figure out figure out and that's honestly why -Yrn I'm in the counseling, counseling. I I go every go week,:every every week, Monday. every Monday •• But But I every Monday with these guys g❑ every.

I go guys and we talk about similar stuff stuff . every every Monday.

Monday.And And one.. one of the guys guys: had done. done What what I I did to you you to.hi.s to his wife, they're .married., married, and he. he was in prison for eight prison eight years.; years. And she didn't want.it, want it, and it was not consensual; in regards consensual, did -not­.consent. regards that she did not consent. He was in prison for eight prison eight- . yearss and row years now has five years probations and and. has to register register as sex offenderfor offender for the rest of of*his. life.. He can't his life. be be around kids,kids, can't be, be, you you know, all this stuff and he he..gaue gave me advice and to me to. talk to to you was the first thing that. that he said.

Fie said, te said. ; you'll you'll never understand what what. they felt- felt unless you talk talk to them. And IIstill don't think think we really really :talked talked about your fee your hngs, but at feelings, at.least we're. ta.lki.ng least we're talking now, you know what what Urnean? l mean?

de

But, Iimean, But, mean, that's exactly what What helie said: said. To ta_Ik-to first., talk to her first, get get to. to know exactly how she she. felt because you'll never know.

You made her feel some sore typetype -of way, but shellshe'll never know exactly exactly what what that is, is, until you you actually,.And. actually, and most people people don't get..the get the chance to: to ask, you you . know? And Ana so, I I appreciate that, you you know+►? know? At At Ieast.1-get..to least I get to talk talk to you regardless regardless how.it,.the how it, the outcome, y ou. know? you N.T. at 112, (N.[. Carnmonwealth's Ex. ), 112, Commonwealth's 4). A A few moments moments. after after. Appellant told: told xthat he (~.that h.e was in counseling,j 6.C. in.counselinq 6-E disclose disciosed that that she,. she, too, had had: started counseling 'tolfowing counseling CEie assault, following the assault, ((N.T.

N.T. at 112, Commonwealth's Cornmonwealth's..Ex. Ex. 4), tl e ), As the conversation..unfoided, conversation both. unfolded, bot GK,and discussed . bow and Appellant discussed how * their respective therapies beneficial:- Appellant did therapies had been beneficial. did: not say that he was forced to go to to counseling or was seeking counseling conv. icLi.ons. As redacted, seeking therapy because of past convictions. redarted, Appellant's Appellant's initial statements staternents -about counseling indicate that Appellant knew that .he assaulted he assault6 G.c• and was -trying G trying to .to .make make sense of of.his conduct. his own abhorrent conduct

In their In their second second recorded conversation, both Moth _s and Appellant again discussed, their discussed participation in their participation in counseling' assault. After Appellant counseling following the assault. Appellant. discussed his iscussed his group group. therapy, QC-* . asked therapy, Gk, asked if he.had to to ""talk talk.about about [[her] her] at his I at [[his]

meeting.. (N.T. meeting." (N.T. at 112, 112, .Comm nwealth's Ex. ).

Commonwealth's responded that he 5).. Appellant responded did. and did and stated that he he.*was was not worried about -being charged with rape rape.because. because confidentiality requirements. of confidentiality requireinents.. ((N.T.

N.T. at at*1.12, CornmonweaIth's Ex.5).

112, Commonwealth's ( ZZ Ex, 5),. G.& also discussed: he.r counseling and noted . discussed her that " that counseli.ng does "counseling does help o.ne -on - one-on one,"but one," her therapy but clarified that her therapy centered on talking about how to '"get get over": the ,assauf the assaultLrather rather than than discussirig discussing the details of what happened: happened ((N.T.

N.-T_ at 112,..

112, Commonwealth's Ex. Commonwealth's Ex. 5), 5).

Here. again, Here again, none of references to counseling of. the references counseling. suggest that that. Appellant court--ordered was court ordered t to . participate because 0- participate assaults.. -Appellant's because of prior sexual assaults. Appellant's. statement that he was expected to talk about his expected to his.victim victim does not lead to the conclusion 'that conclusion that he had other other-victims victims or had been previously accused/convicted offenses.. Rather, of sexual offenses. in. light of.

Ratfzer, : in of the careful redactions, redactions,. Appellant's su gge st that after he assaulted one statements suggest one of his close close. friends, he decided help: whict, to seek out professional therapeutic help which, necessarily, necessarily; involved admitting. admitting 'to to what done`in what -he had done in a a confidential confidential erivironment, environment Appellant's insistence that Appellant's his counselin.g-related-statements that his improperly counseling-related statements improper.y led the jury to conclude jury to conclude that:-* that he he had had previously previously been accused of and/or and /o*r of.sexual convicted of is altogether unsupported sexual offenses is Unsupported .by an .a.bjective.reading objective reading . of *.the the wire transcripts, transcripts. The redacted recordings recordings, do not paint picture: of aa paint *a picture serial seXuai predator— sexual predator which would have been -which been- an accurate but inadiTiissible inadmissible

--------------·--- portrayal. Instead, when viewed from the perspective of a portrayal. Instead, a juror with no knowledge of knowledge of Appellant's propensity for Appellant's propensity for crimes crimes of of sexual sexual violence, the- the redacted. redacted wire recordings recordings. depict depict Appellant Appellant as a individual :who a disturbed individual who chose to in -counseling participate.in participate counseling to- to process why..he process why lured (C_ he lured G'CF into his bedroom bedro'om.and and assaulted her, her. Therefore, the Superior Court's ruling regarding 404(b) 444(b) evidence violated . by my decision -to allow references to apparently -voluntary was not violated therapy therapy that that were enmeshed witr haJi*n*g Appellant's unequivocal confession to having with App.ellant's

.assaulted assaulteG. .6 CONCLUSION these reasons, For these reasons, each of Appellant complains of- the errors that Appellant complains of are without of are without merit and merit and his appeal appear should be denied. denied.. Accordingly, I I enter the the - following following:

.i18s

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