Received 03/10/2016 Supreme Court Eastern District

IN THE
SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
NO. __ EAL 2016
COMMONWEALTH OF PENNSYLVANIA
Petitioner
V.
WILLIAM J. LYNN

PETITION FOR ALLOWANCE OF APPEAL
Petition to appeal the December 22, 2015 decision of the Superior
Court (petition for en banc reargument denied February 10, 2016),
following remand by this Court for further proceeeings, at 2171
EDA 2012; vacating the July 24, 2012 judgment of sentence for
endangering the welfare of children in the Court Of Common Pleas
Of Philadelphia County, Trial Division, Criminal Section, At CP-51CR-0003530-2011 and ordering a new trial.

HUGH J. BURNS, JR.
Chief, Appeals Unit
RONALD EISENBERG
Deputy District Attorney
GEORGE D. MOSEE, JR.
First Assistant District Attorney
R. SETH WILLIAMS
District Attorney
3 South Penn Square
Philadelphia, Pennsylvania 19107

 TABLE OF CONTENTS
PAGE
Question presented

1

Order in question

2

Statement of the case

3

Reasons for granting the application

The 2-1 Superior Court majority usurped the discretion of
the trial court as to ‘other bad acts’ evidence that was
probative, necessary, and not improperly prejudicial.

15

The Superior Court majority’s flawed understanding of other bad
acts evidence comprehensively tainted its analysis.

16

2.

The evidence was relevant.

20

3.

The evidence was necessary and not excessive.

24

4.

The risk of improper prejudice was minimal.

27

1.

Conclusion

33

Certification of compliance

33

Appendix A: Order of February 10, 2016 denying en banc reargument
Appendix B: Superior Court decision of December 22, 2015 (majority opinion,
Bender, P.J.E.; dissenting opinion, Donohue, J.)
Appendix C: Trial court opinion

i

 TABLE OF CITATIONS
Commonwealth v. Boczkowski, 846 A.2d 75, 93 (Pa. 2004)

24

Commonwealth v. Brown, 786 A.2d 961, 971 (Pa. 2001)

30

Commonwealth v. Bryant, 67 A.3d 716, 726 (Pa. 2013)

16

Commonwealth v. Dillon, 925 A.2d 131, 141 (Pa. 2007)

17, 27

Commonwealth v. Dollman, 541 A.2d 319, 321-22 (Pa. 1988)

18, 19

Commonwealth v. Fisher, 769 A.2d 1116, 1128 (Pa. 2001)

17

Commonwealth v. Gordon, 673 A.2d 866, 870 (Pa. 1996)
Commonwealth v. Hoover, 107 A.3d 723, 729-30 (Pa. 2014)

18, 26
16, 19, 24

Commonwealth v. Iacino, 490 Pa. 119, 126, 415 A.2d 61, 65 (1980)

28, 29

Commonwealth v. Jemison, 98 A.3d 1254, 1262 (Pa. 2014)

17, 30

Commonwealth v. Lynn, 114 A.3d 796 (Pa. 2015)

12, 13

Commonwealth v. Lynn, 83 A.3d 434, 456, 457 (Pa. Super. 2013)

12, 13, 20

Commonwealth v. McCutchen, 454 A.2d 547, 549 (Pa. 1982)

18

Commonwealth v. Means, 773 A.2d 143, 157 (Pa. 2001)

30

Commonwealth v. Nolen, 634 A.2d 192, 198 (Pa. 1993)

30

Commonwealth v. Powell, 956 A.2d 406, 419 (Pa. 2008)

17

Commonwealth v. Schwartz, 285 A.2d 154, 158 (Pa. 1971)

25

Commonwealth v. Ulatoski, 371 A.2d 186, 192 n.11 (Pa. 1977)

17, 27, 28

Commonealth v. Weakley, 972 A.2d 1182, 1191 (Pa. Super. 2009)
Commonwealth v. Williams, 936 A.2d 12, 30-31 (Pa. 2007)
United States v. Hudgins, 2009 WL 2219240 (3d Cir. 2009) (unpublished)
ii

18
15, 25
29

  404(b) passim

1925 11



QUESTION PRESENTED
An Archdiocesan official responsible for protecting children from pedophile
priests under his supervision instead reassigned such a priest, as part of a general
scheme of concealment. To prove that scheme, as well as the critical elements of
knowledge and intent where the charge was endangering the welfare of children, the
Commonwealth offered 21 prior incidents as evidence of his supervisory methods,
training and experience in prior incidents. Following a 6-day pretrial hearing, the trial
court exercised discretion to admit this evidence. At trial it repeatedly gave limiting
instructions, and it explained its reasoning in detail in its opinion. The issue is, did
the 2-1 Superior Court majority err in overriding the trial court’s discretion to admit
evidence of other bad acts?
(Answered in the negative by the Superior Court majority).

1

 ORDER IN QUESTION
The order in question is the Superior Court order of December 22, 2015
(reargument denied February 10, 2016), at 2171 EDA 2012 (Pa. Super. 2013),
vacating the judgment of sentence for endangering the welfare of children and
ordering a new trial.

2

 STATEMENT OF THE CASE
Defendant was a high-ranking Archdiocesan official specifically responsible
for protecting children from pedophile priests. Instead he relocated them, as part of
a general scheme of concealment, in a manner that put numerous children at risk of
being sexually molested. When the Superior Court, in a decision authored by thenPresident Judge Bender, ruled that the evidence was insufficient to prove endangering
the welfare of children (on the ground that defendant was not a “direct” supervisor
of the welfare of children), this Court reversed. But because the Superior Court had
decided only 1 of the 10 issues raised, this Court had to remand for the remaining
claims to be decided.
On remand, in a 2-1 decision again authored by President Judge (now
Emeritus) Bender, the Superior Court again selected one of the other remaining issues
– this time, admission of “other bad acts” evidence, where the trial court found the
evidence relevant and probative and repeatedly gave limiting instructions – and,
without addressing the 8 remaining claims, granted a new trial.1
But as set forth in the dissenting opinion by Judge (now Justice) Donohue, the
majority analysis authored by President Judge Emeritus Bender does not identify any
abuse of discretion by the trial judge. Rather, it usurps the trial court’s discretion and
reweighs the evidence.
Further review is warranted. What was true when this Court first granted

1

The majority considered, but decided against, reviewing the sufficiency of the
evidence for a second time (majority decision at *3-*6).
3

 review in this same case remains true today. Child sexual abuse is a crime in which
victims and their families are typically reluctant to come forward. When, as here, the
offenders are educational, religious, or other kinds of social leaders, they often benefit
from an institutional policy of concealment designed to protect the institution and to
exploit that reluctance. The Superior Court’s 2-1 ruling in this case calls into doubt
the ability of the criminal justice system to hinder such institutional wrongdoing. The
high degree of national public attention focused upon this case greatly exacerbates
this problem, which transcends the interests of the parties. As previously, the message
of the Superior Court’s divided decision is a dismal one – it signals victims of child
sexual abuse who are already reluctant to come forward that they may do so in vain.
This Court should not allow that message to stand unreviewed. The Commonwealth
respectfully requests allowance of appeal.2
Monsignor William Lynn was Secretary of Clergy of the Archdiocese of
Philadelphia from June 15, 1992 through 2004. In his own words, his “most
important” duty in this capacity was to investigate reports of sexual misconduct by

2

The situation in this case is unfortunately far too common, and remains fixed in
media attention. Further, a new investigating grand jury report concerning the
Altoona diocese exacerbates the deleterious effect of the instant Superior Court
decision. That report found policies similar to Lynn’s accompanied widespread, and
systematically concealed, sexual abuse of children by priests, and that local
authorities had assisted in the cover-up. A March 1, 2016 story in the Pittsburgh PostGazette (“Grand Jury: Altoona doicese concealed sexual abuse by hundreds of
priests”) described the report as stating that “the diocese had political boss-like
powers in central Pennsylvania.”
(http://www.post-gazette.com/news/state/2016/03/01/Staggering-abuse-cover-up-inAltoona-Johnstown-diocese-grand-jury-says/stories/201603010091).
4

 priests of the Archdiocese, including cases of sexual abuse of minors, and to protect
children from these priests (N.T. 5/16/12, 98; 5/17/12, 32; 5/23/12, 190-193; 199202; 219-220; 5/24/12, 56, 115). Lynn described himself as the “point man” in such
matters (N.T. 5/24/12, 20-21). It was his role to collect and process information, make
recommendations, and participate in the decision process of how to deal with the
problem of priests within the Archdiocese who were sexual predators against children
(N.T. 5/23/12, 197-202, 219-220). Lynn even claimed that his personal efforts
improved the manner in which the Archdiocese handled such issues (N.T. 5/24/12,
59-60).
The evidence told a very different story. Far from protecting children, Lynn
engaged in a pattern of concealment and facilitation of child sexual molestation by
priests. His misdirection of the public and aid to pedophile priests led directly to the
sexual abuse of victim D.G. by Father Edward Avery.3 While it was Lynn’s chief duty
to investigate and prevent priests from sexually molesting children, his real objective
was to conceal the misconduct and to avoid negative publicity, notwithstanding the
resulting risk of harm to other potential child victims. Extensive evidence – evidence
that this Court closely examined in the prior appeal and that is now the subject of the
latest Superior Court ruling granting him relief – established that Lynn’s handling of
Avery’s case was no oversight, but was in accord with his established practice for

3

Lynn was to be tried together with Avery and Father James Brennan, but Avery
pleaded guilty to conspiracy to endanger the welfare of children and involuntary
deviate sexual intercourse before testimony began. Lynn was therefore tried together
with Brennan. The jury could not reach a decision in Brennan’s case.
5

 dealing with sexual predator priests.
Lynn did not merely disregard that risk, he systematically invited it. Despite
being responsible for numerous cases of priests who molested children, in no instance
did Lynn ever attempt to contact victims who had not voluntarily come forward, nor
did he ever report such crimes to the police. He mollified victims who did complain
by falsely telling them that their allegations were being seriously pursued, while
behind the scenes he did the opposite, acting as protector and advocate for the
predators with full knowledge of their guilt. Lynn ignored reports that these priests
molested other victims who had not come forward, and never attempted to contact
victims who had not already contacted the Archdiocese themselves. He routinely
promised victims that their assailants would be kept away from other children while
doing nothing to accomplish it. Lynn invariably arranged for the prompt departure of
such priests from their parishes so that they would no longer be visible to victims and
their families, consistently arranging for parishioners to be told that the sudden
departure was for “health” reasons. Lynn sent sexual predator priests for “treatment”
that was ineffective and conducted solely for the sake of appearances. It was Lynn’s
practice to disregard plans for follow-up supervision recommended by therapists, and
to arrange for known sexual predator priests to be reassigned to environments in
which they would frequently encounter, and sometimes work closely with, children.
He ordinarily kept the priest’s new supervisor in the dark. In no instance did he take
any steps to require a relocated sexual predator to be kept separated from children.
Indeed, in instances in which other priests or nuns raised concerns about questionable
6

 conduct by such predators, Lynn expressed clear disapproval of, and on several
occasions retaliated against, the whistleblowers.
In September 1992 Lynn met with R.F., who as a minor had been a victim of
sexual abuse by Father Avery. Lynn learned that, when R.F. had been in sixth grade
he was an altar server at St. Philip Neri parish, and encountered Father Avery. Avery
was “gregarious,” “charismatic” and “popular with the young people,” and took the
altar boys on trips to places such as Wildwood, New Jersey, where Avery had a
house. He provided the boys with beer and would enter the loft area where they slept
to “wrestle” with them. On at least two such occasions Avery’s hand would
“momentarily grab [R.F.’s] genitals.” Avery was transferred to a different parish but
maintained contact with R.F., inviting him to help Avery with his practice of “disc
jockeying” at parties. On one occasion in 1978 Avery took R.F., then age 15, to
Smoky Joe’s Cafe in West Philadelphia to assist him with a party for college students.
After the child was drunk on beer Avery took him to the rectory and directed him to
“sleep in the bed with me.” Sleeping on his back, the boy awoke to find the priest’s
“hand on top of my penis” over his underwear. Avery’s hand then began to reach
inside the underwear, at which point the child rolled away. Because R.F. “heroworshipped” Avery he “couldn’t really accept what had happened” at the time. After
R.F. had turned 18, Avery invited him on a ski trip to Killington Vermont with his
(Avery’s) brother. On this occasion the victim was awakened by Avery massaging
R.F.’s penis, leaving the victim “devastated, confused and angry.” With considerable
emotional difficulty R.F. contacted the Archdiocese in 1992 because he knew Avery
7

 continued to be a “threat to other impressionable young men,” and he sought
“assurance that Father Avery will not harm anyone else.” Lynn told R.F. that the
victim was of highest priority to the Archdiocese (N.T. 3/26/12, 259; 4/25/12, 6-25,
32-41).
Lynn sent Avery to Saint John Vianney, a mental health treatment facility
operated by the Archdiocese – Lynn had been on the board of directors for a number
of years – for evaluation and treatment. Lynn’s referral did not describe the sexual
misconduct alleged by R.F. but vaguely alleged Avery had been “drinking” and took
a child to a place “serving alcohol.” Avery nevertheless acknowledged his own guilt.
The therapist reported “concerns about the existence of other victims,” and the facility
recommended that as part of “continued outpatient treatment” Avery be placed in an
assignment “excluding adolescents” (3/27/12, 18, 42, 48; 5/23/12, 204-205).
Despite these warnings Lynn did nothing to find other victims or to keep Avery
separated from children. To the contrary, Lynn – whose job specifically included
participating in the assignment process (N.T. 5/23/12, 195-196) – recommended that
Avery be made associate pastor at Our Lady of Ransom, a parish with a grade school.
When Cardinal Anthony Bevilacqua declined that proposal, Lynn recommended
assigning Avery to a chaplaincy at Nazareth Hospital. But instead of requiring Avery
to live in the hospital residence, Lynn decided he should be allowed to live in a
rectory at nearby St. Jerome’s parish, another parish with a grade school (N.T.
5/29/12, 109).
Lynn wrote to St. Jerome pastor Joseph Graham, but in that letter said nothing
8

 about Avery’s sexual misconduct with children. In fact, the letter informed Graham
that Avery “had been asked to offer assistance in the parish.” Father Graham, who
was subject to Lynn’s authority, complied with Lynn’s letter and allowed Avery to
“assist[ ] in the parish” – he allowed Avery to say Masses at which children were altar
servers, and to be with children in confession, as Lynn knew he would (N.T. 5/29/12,
110-111). Lynn did nothing about the therapist’s “concerns about the existence of
other victims” of Avery, and did nothing to enforce the recommendation that Avery
be excluded from contact with adolescents. Other priests at the rectory where Avery
lived thought he was there because of overwork (N.T. 4/23/12, 143). Lynn provided
no warning to parishioners at St. Jerome, where Avery lived, or to the hospital where
Avery was assigned to work. Avery’s former parishioners were told that his departure
was “for his health.”
Meanwhile, Avery disregarded work at both the hospital and at St. Jerome
parish in favor of constant disc jockeying at block parties, weddings, dances, and
other events. Avery was constantly seeking new bookings and at one point scheduled
three for a single weekend (N.T. 3/27/12, 75). This was a serious danger signal
because it was the same type of activity Avery had used to groom R.F., the victim
who had contacted the Archdiocese and who had been interviewed by Lynn. To
Avery’s hospital associates this partying seemed odd given their understanding that
he was being treated for overwork; but Lynn rebuffed complaints by Father Michael
Kerper, Avery’s associate at Nazareth Hospital, telling him to convey his concerns
to Kerper’s own immediate superior. Nevertheless, in response to a follow-up inquiry
9

 from St. John Vianney, Lynn falsely claimed that Nazareth was “very pleased with
the work Father Avery is doing.” In 1997 Lynn wrote a letter for the signature of the
Cardinal to the National Association of Catholic Chaplains that described Avery’s
work at the hospital as “exemplary.” To a secretary at Avery’s former parish, Lynn
wrote that the Archdiocese had never received “anything but compliments” about him
(3/27/12, 45, 57-60, 65-82; 5/23/12, 50-51).
In the fall of 1998, ten-year-old D.G. was training to be an altar server at St.
Jerome, where Avery continued to live and say Mass. Within a few months D.G.
came to be sexually abused by another of the priests residing there, Father Charles
Englehardt. Early in 1999, Avery accosted the altar boy, saying he had heard of his
“sessions” with Englehardt, and soon thereafter sexually molested the child by putting
his penis in the boy’s mouth and ejaculating on him. D.G. was afraid to tell because
he thought no one would believe his accusation against a priest (N.T. 4/25/12, 101136).
Following investigation by two grand juries, the Commonwealth charged Lynn
with two counts of criminal conspiracy (charging that he conspired with, inter alia,
other Archdiocese officials) and two counts of endangering the welfare of children.
The case was assigned for trial to the Honorable Theresa Sarmina. Prior to trial, over
a six-day period (January 23, 24, 25, 30, 31, and February 6, 2012), the court heard
evidence and argument on the Commonwealth’s pretrial motion to admit against Lynn
specific instances of “other bad acts” evidence under Pa.R.E. 404(b). A total of 21
such instances were introduced at trial. The court found this evidence admissible for
10

 several relevant purposes, including to establish motive, knowledge, intent, a
common scheme or plan, and to rebut defense arguments of isolated mistake or
accident (which is just what Lynn later argued – N.T. 5/31/12, 35 [defense argument
that Lynn made “only one” error and “[s]o his job wasn’t perfect”]).
The trial court repeatedly instructed the jurors that Lynn was not on trial for
acts committed by priests other than his co-defendants, Brennan and Avery, and that
they could not consider such evidence as proof that he was of bad character or had a
propensity to commit crimes, but only for specified purposes (e.g., knowledge,
absence of mistake, common plan, etc.) (N.T. 3/29/12, 22-25; 4/2/12, 263-266;
4/9/12, 4-7; 4/16/12, 210-213; 4/19/12, 247-249; 5/1/12, 232-234; 5/10/12, 199-202;
5/17/12, 101-104; 6/1/12, 44-47).
On June 22, 2012 the jury found Lynn guilty of endangering the welfare of
children as a felony of the third degree and not guilty of all remaining charges. On
July 24, 2012, the court sentenced Lynn to three to six years imprisonment. On April
12, 2013, the trial court filed a factually detailed and comprehensive opinion
addressing the 17 issues raised in Lynn’s statement pursuant to Pa.R.A.P. 1925.
In its opinion, the trial court explained in detail the manner in which it had
balanced the probative value of the Rule 404(b) evidence against the risk of improper
prejudice. The court explained that the evidence was necessary to prove that Lynn
knew how to identify sexually abusive priests and how such priests behaved with
minors; that they used alcohol and other methods to isolate victims and were often
repeat offenders, and so dangerous to other potential victims. It also explained his
11

 motive and plan for keeping such conduct secret, such as by refusing to investigate,
lying to parishioners and the police, and using doctors who would support his agenda
of creating a false appearance of effective treatment (trial court opinion, 133-180).
On appeal to the Superior Court Lynn raised 10 separate issues, including a
claim that the evidence was insufficient because he supposedly was not within the
class of persons capable of endangering the welfare of children under the Crimes
Code. In an opinion authored by the Honorable John T. Bender, then President Judge,
the Superior Court agreed with this argument, held that the evidence was insufficient,
and, without resolving the remaining claims, ordered Lynn to be discharged
“forthwith.” Commonwealth v. Lynn, 83 A.3d 434, 457 (Pa. Super. 2013). This Court
granted the Commonwealth’s petition for allowance of appeal and ultimately reversed
that decision. Commonwealth v. Lynn, 114 A.3d 796 (Pa. 2015).
In reviewing the sufficiency issue, this Court’s opinion in that appeal included
a thorough examination of the “other bad acts” evidence, presenting an overview of
why that evidence was relevant and probative. 114 A.3d at 804-814. This review,
itself, illustrated the importance of this evidence in establishing Lynn’s guilt for the
charge of endangering the welfare of children:
The Commonwealth's evidence established that despite being
responsible for responding to sexual abuse allegations against priests for
the purpose of protecting the welfare of D.G. and other children,
Appellee mollified victims of sexual abuse by falsely telling them their
allegations were being seriously investigated and that the particular
priest would never again be assigned around children, despite knowing
that the priests under his supervision would merely be reassigned to
another parish with no ministry restrictions on contact with children; he
informed parishioners that the priests he transferred were moved for
health reasons, leaving the welfare of children in jeopardy; he routinely
12

 disregarded treatment recommendations for priests; he failed to inform
the relocated priest's new supervisor about abuse allegations; he took no
action to ensure that the abusive priest was kept away from children at
his new assignment; he suppressed complaints and concerns by the
colleagues of the priests; all with the knowledge that sexually abusive
priests rarely had only one victim and that all of these actions would
endanger the welfare of the diocese's children, including D.G.
Commonwealth v. Lynn, 114 A.3d at 824-825.
On remand, a 2-1 majority the of same Superior Court panel nevertheless
granted Lynn a new trial, on the ground that such evidence was improperly admitted.
The majority opinion written by President Judge Emeritus Bender concludes
(inter alia) that this evidence, offered to prove Lynn knew from experience how
dangerous Avery was to children, was excessive, and indeed unnecessary: “a jury is
capable of such commonsense conclusions in the absence of such evidence ... any
person of modest intelligence would recognize the peril” (majority opinion, *9). But
previously, in this same case, the Superior Court (per President Judge Bender) held
this same evidence was insufficient to prove Lynn had such knowledge. 83 A.3d at
456 (“the trial court states ... that the Commonwealth satisfied its burden by
demonstrating that Appellant was aware of the ‘natural and probable consequences’
of his handling of Avery ... The record simply does not support such a theory ...
Avery was not even diagnosed with a mental impairment that suggested he had a
predisposition to commit sexual offenses”).
The Superior Court majority also excoriates the trial court – which, as noted
above, devoted 47 pages of its opinion to the Rule 404(b) balancing analysis – for
“spend[ing] no time addressing the prejudicial value” of the evidence and
13

 “dedicat[ing] precisely one sentence to discussing the potential for that evidence to
prejudice Appellant” (majority opinion, *15).
The errors by the Superior Court majority opinion, discussed below and in the
dissent, boil down to usurping the discretion of the trial judge. The majority made no
secret of the fact it was re-evaluating the relative weight of certain items of evidence
de novo. Acknowledging that each had probative value, it found some were relatively
less probative than others. That is not a proper basis for a new trial.
This result should not go unreviewed. That is particularly true in that this case
is being closely followed, not merely by the media and the public at large, but by
victims of similar kinds of sexual abuse. Victims may now more than ever fear to
come forward because, given the ultimate result in the case of one of the very
masterminds of such a plot, there is simply no point. This Superior Court decision
also implicitly exposes this Court’s own authority to disrepute; innocently or not, it
creates the implication for the legally unsophisticated that this Court failed to
recognize that the evidence, on which it relied in overturning the Superior Court’s
sufficiency ruling absolving Lynn of guilt, was improper.
The Commonwealth respectfully requests allowance of appeal.

14

 REASONS FOR GRANTING THE APPLICATION

The 2-1 Superior Court majority usurped the discretion of
the trial court as to ‘other bad acts’ evidence that was
probative, necessary, and not improperly prejudicial.
Introduction
The Commonwealth had the burden of proving beyond a reasonable doubt the
near-unthinkable, that a high ranking prelate of the Catholic Church, responsible for
protecting children from sexual predator priests, instead knowingly put children in
danger. That burden was met with evidence that included 21 prior cases proving Lynn
was following a common scheme. He created a false veneer of successful treatment,
made secret transfers, and deployed phony cover stories. He systematically flouted
his duty to investigate because that might prompt more victims to come forward. It
was this evidence that proved Lynn’s aim was not to solve the problem, but hide it.
The evidence shed critical light on his handling of Avery, and was essential in
establishing the elements of criminal conspiracy and endangering the welfare of
children. Commonwealth v. Williams, 936 A.2d 12, 30-31 (Pa. 2007) (“of course”
other crimes admissible “to show the full scope and extent of the conspiracy” and so
“individual crimes would not be presented in a vacuum, lacking context”).
The pedophiles Lynn supervised certainly committed their own crimes, but that
was not the point; their cases established Lynn’s criminal methodology and proved
his handling of Avery was not, as he tried to claim at trial, an unwitting accident. This
criminal scheme was designed to be invisible; it was the contested evidence that made
it visible.
15

 The Superior Court may reverse evidentiary rulings “only” for an abuse of
discretion, a determination that “may not be made merely because an appellate court
might have reached a different conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so
as to be clearly erroneous.” It may not substitute its own judgment for that of the trial
court. “The point ... is not how an appellate court might balance [the] factors, but
rather, whether the trial court's balancing so departs from what is reasonable that it
can be set aside.” Where a trial court “considered all factors in light of the case that
unfolded before it,” and acted to ensure the evidence “was not misunderstood or
misused,” there is no abuse of discretion. Commonwealth v. Hoover, 107 A.3d 723,
729-30 (Pa. 2014) (citations and internal quotation marks omitted). On appeal the
defendant has the “heavy burden” of showing an abuse of discretion. Commonwealth
v. Bryant, 67 A.3d 716, 726 (Pa. 2013) (citation omitted).
1.

The Superior Court majority’s flawed understanding of other bad
acts evidence comprehensively tainted its analysis.
The Superior Court majority opinion distorts the law of other-bad-acts

evidence, concluding that the challenged evidence was “by default” inadmissible
unless the trial court “eliminated the potential for unfair prejudice.” It makes no
difference if the potential for unfair prejudice was slight, or even if there was no
prejudice at all. The burden of showing that any potential for prejudice was
eliminated, it says, is “on the Commonwealth” (majority opinion, *14, *18). This is
not the law. The burden on appeal is on the defendant, not the Commonwealth.
Bryant, 67 A.3d at 726. The view of the Superior Court majority that mere risk of
16

 “potential” prejudice disqualifies the evidence ignores that the risk of unfair prejudice
is inherent. Because bad acts evidence can always possibly be taken as evidence of
bad character there is an ineradicable “danger that it will stir such passion in the jury
as to sweep them beyond a rational consideration of guilt or innocence of the crime
on trial.” Commonwealth v. Ulatoski, 371 A.2d 186, 192 n.11 (Pa. 1977) (citation
omitted); Commonwealth v. Fisher, 769 A.2d 1116, 1128 (Pa. 2001) (other bad acts
evidence offered for a proper purpose is “not unduly prejudicial merely because it [is]
damaging to [the defendant's] case,” but is admissible so long as the jury is not
allowed to treat it as proof of criminal propensity or bad character); see
Commonwealth v. Jemison, 98 A.3d 1254, 1262 (Pa. 2014) (“unfair prejudice is
defined as a tendency to suggest decision on an improper basis”) (citation and internal
quotation marks omitted).4
As this Court’s decisions make clear, the potential for unfair prejudice is
acceptably diminished, “balanced,” or “outweighed” where the evidence has a proper
purpose. That purpose need only outweigh, not eliminate, the risk of improper
prejudice; and indeed, that risk is reduced by the very use of the evidence for a
necessary and proper purpose. Commonwealth v. Dillon, 925 A.2d 131, 141 (Pa.
2007) (other crimes evidence admissible when relevant to a proper purpose even
4

The need to avoid unfair prejudice is not, of course, an exotic or unique feature
of other bad acts evidence, but applies to all evidentiary rulings. Commonwealth v.
Powell, 956 A.2d 406, 419 (Pa. 2008) (“any ruling on the admissibility of evidence
is subject to the probative value / prejudicial effect balancing that attends all
evidentiary rulings”); Commonwealth v. Ulatoski, id. (“All evidence, even when
determined to be relevant, is inadmissible if the trial court, in its discretion,
determines that its prejudicial impact outweighs its probative value”).
17

 where “extremely grotesque and highly prejudicial”); Commonwealth v. Gordon, 673
A.2d 866, 870 (Pa. 1996) (“Whether relevant [other crimes] evidence is unduly
prejudicial is a function in part of the degree to which it is necessary to prove the case
of the opposing party”); Commonwealth v. Dollman, 541 A.2d 319, 321-22 (Pa.
1988) (“admission of evidence which may tend to inflame the minds of the jury is
admissible at the trial court's discretion”) (citation omitted); Commonwealth v.
McCutchen, 454 A.2d 547, 549 (Pa. 1982) (“the value of this evidence ... fully
compensates for any likelihood that [it] may inflame the passions of the jury”);
Commonealth v. Weakley, 972 A.2d 1182, 1191 (Pa. Super. 2009) (“While the
potential for prejudice ... can be great when ‘other crimes’ evidence is calculated to
inflame the jury's emotions of sympathy or hostility, the potential is mitigated where,
as here, the focal point of the evidence is the precise criminal method used”). As
noted by then-Judge Donohue (dissenting opinion, *22), this was the proper analysis,
correctly applied by the trial court.
Given its flawed understanding of the trial court’s task it is unsurprising, but
still unfortunate, that the Superior Court majority excoriates that court for supposedly
“spend[ing] no time addressing the prejudicial value” of the evidence and supposedly
“dedicat[ing] precisely one sentence [in its opinion] to discussing the potential for
that evidence to prejudice Appellant” (majority opinion, *15). This attack on the trial
court is embarrassingly unjustified. The trial court devoted no fewer than 47 pages
of its opinion to the balancing test (see dissenting opinion, *22 [“my review of the
trial court’s opinion reveals that it dedicates far more than ‘precisely one sentence’
18

 to the question of the prejudicial nature of the evidence”]). As this Court has
explained, the balancing test is what determines whether the relevance and proper
purpose of the evidence reduces its possible improper prejudicial effect. That the trial
court did exactly what it was supposed to do was lost on the majority, because the
majority fundamentally misunderstood the process.
Contrary to the view of the Superior Court majority, the trial court was not
obliged to do the impossible and eradicate every imagined possibility of improper
prejudice before it could decide to admit relevant evidence under Rule 404(b).
Because the very foundation of the majority’s analysis is thus distorted, its
unauthorized attempt to re-stage the balancing process is distorted as well.
2.

The evidence was relevant.
The Superior Court majority does not deem any of the disputed evidence

irrelevant for a proper purpose under Rule 404(b). Instead it only pronounces some
items relatively less probative than others, without specifying all of the items that
were supposedly so much relatively less probative as to be inadmissible. In addition
to the fact that this analysis shrouds in mystery what the trial court is supposed to do
on retrial, such vague, shades-of-gray distinctions are precisely what the law bars
from the Superor Court’s scope of review. See Commonwealth v. Hoover, 107 A.3d
at 730 (reversing Superior Court decision that amounted to “differences in judgment
in weighing and reweighing the same identified factors, yet reaching different
conclusions”); Commonwealth v. Dollman, 541 A.2d at 321 (Superior Court’s
conclusion that evidence was “highly inflammatory” and of “little probative value”
19

 reversed because “[t]he function of the trial court is to balance the alleged prejudicial
effect of the evidence against its probative value, and it is not for an appellate court
to usurp that function”).
Moreover, in substituting its discretion for that of the trial court, the Superior
Court majority does not even accurately characterize the allegedly inadmissible
evidence. Its opinion is a caricature of the evidence.
The majority identifies only three examples of evidence it deems not “highly
or substantially” probative (majority opinion, *11, original emphasis). The first is the
case of Father Thomas Wisniewski. The majority considers this evidence unnecessary
and unhelpful for the purpose of showing that sending a pedophile to a parish with
a school was dangerous, because “any person of modest intelligence would recognize
the peril” (majority opinion, *6). But Lynn, who handled Avery in much the same
way as Wisniewski, denied any peril was recognizable. Indeed, so did the Superior
Court itself, finding that this same evidence, in this same case, suggested no such
danger when the issue was sufficiency. Commonwealth v. Lynn, 83 A.3d 434, 456
(Pa. Super. 2013) (asserting record “simply does not support” theory that Lynn “was
aware of the ‘natural and probable consequences’ of his handling of Avery” who had
previously molested a minor, but “was not even diagnosed with a mental impairment
that suggested he had a predisposition to commit sexual offenses”).
The majority opinion neglects to note that Lynn handled the Wisniewski case,
in which the latter had (inter alia) anal and oral intercourse with a 15-year-old boy,
in 1992, at roughly the same time he was dealing with Avey. Lynn sent Wisniewski
20

 to the St. John Vianney treatment center shortly before he sent Avery, with similar
results – Wisniewski supposedly was “not a pedophile,” yet for some reason should
be kept away from male adolescents, similar to Avery. Lynn handled the investigatory
aspect of his protective duty by not reaching out to any of the several victims
Wisniewski admitted or looking for ones he may have omitted. Lynn had Wisniewski
tell his parish he was going on vacation, and proposed reassigning him to a parish
with a school (N.T. 4/19/12, 229-243; 4/23/12, 44-78; trial court opinion, 54-59).
Since, as the the Superior Court majority puts it, “any person of modest intelligence
would recognize the peril,” so did Lynn; but he denied recognizing it, exposed
children to danger, and knowingly used the same plan when it came to Avery.
The second case deemed relatively irrelevant is that of Fr. Joseph Gausch, a
matter that, supposedly, did not involve Lynn at all but only the conduct of his
predecessors. But Lynn’s involvement in that case was personal and significant. In
1994 a former altar boy reported to Lynn, as Secretary for Clergy, that Gausch had
fondled his genitals and those of another altar boy in the church sacristy. Lynn soon
learned that Gausch had an appalling record of sexual misconduct going back 50
years. Although by then officially retired, Gausch remained a clear and present danger
since such priests routinely remain active in (inter alia) offering masses and hearing
confessions. After seeing Gausch’s file Lynn included him with Avery on a list of
priests “guilty of sexual misconduct with minors.” But, as with Avery, Lynn made no
move to restrict or monitor the priest’s activities. He did nothing to find or help other
victims and made no effort to keep this known predator away from potential future
21

 victims; he was, however, careful to inquire whether the victim had a lawyer and
might be considering legal action. Despite graphic details in the victim’s 1994
account, Lynn suggested – to the sexual abuse victim – that perhaps he had
“misinterpreted” Gausch’s putting his hand on the victim’s penis. When Lynn
interviewed Gausch, he “assured” the serial abuser “of the support of the
Archdiocese” and indicated there would be further investigation – of the sexual abuse
victim (N.T. 5/1/12, 131-137; 5/24/12, 187-188; trial court opinion, 101-102). This
evidence had nothing to do with Lynn’s predecessors, and everything to do with Lynn
himself and his own methods for dealing with sexually abusive priests.
The Superior Court majority nevertheless states that it “strains credulity” to
consider Gausch relevant to Lynn’s case (majority opinion, *11). This analysis
indicates not that the trial court neglected to consider improper prejudice, but that the
Superor Court majority’s understanding of the evidence is deeply flawed.
The final case deemed less than sufficiently significant is that of Fr. Raymond
Leneweaver, another instance in which, in the view of the Superior Court majority,
Lynn was not involved in any way. But while Lynn became Secretary of Clergy near
the end of the Leneweaver matter, that hardly made it irrelevant. Lynn became
directly involved in 1997, when Leneweaver, who had been removed from ministry,
sought reinstatement. Lynn soon learned that Leneweaver had been removed in the
first place because he was an incorrigible pedophile with a horrific record, and Lynn
put him on his list of priests “guilty of sexual misconduct with minors.” The records
Lynn consulted revealed the same pattern he himself followed in dealing with similar
22

 issues, including avoiding public scrutiny by sending the offender to treatment
facilities such as St. John Vianney (where Lynn sent Avery), and demonstrated that
this accomplished – in Leneweaver’s own words – “nothing” in terms of actually
modifying the abusers’ conduct. (Indeed, just as with Avery, that facility did not
diagnose Leneweaver as a pedophile either, notwithstanding his relentless sexual
abuse of children). Officials of the Archdiocese (with whom, it should be noted, Lynn
was accused of conspiring) assured victims and family members that the handling of
the priest was in accord with “medical advice.” The Leneweaver matter also
illustrated the practice of transferring the offending priest to a new parish to avoid
“scandal” (the file admitted that, his case, such parishes were growing scarce). When
Lynn handled the case he learned that Leneweaver, though not in priestly ministry,
was actually teaching Latin to middle schoolers. Lynn reacted to this obvious menace
to children in typical fashion: he did nothing to warn potential victims. At the same
time he recommended that Leneweaver not be allowed to return to ministry, citing the
climate of the times – by then the Church nationwide was being sued by sexual abuse
victims. The Leneweaver case underscored that deliberate concealment was the
cornerstone of Lynn’s own approach to his duty of protecting children. It also put the
lie to Lynn’s testimony that his personal efforts had improved the manner in which
the Archdiocese handled such issues (N.T. 5/24/12, 59-60). In fact Lynn copied or
exacerbated only the worst aspects of his predecessors’ methods.
The Superior Court majority does not correctly represent the evidence which,
again as noted by then-Judge Donohue (dissent, *21-*22), was entirely relevant and
23

 probative. This is not a sound basis for concluding that the trial court abused its
discretion.
3.

The evidence was necessary and not excessive.
In criticizing the trial court for supposedly “mistak[ing] quantity for quality,”

the Superior Court majority further usurped its balancing function by applying a kind
of back-of-the-envelope statistical analysis to decide that too much of the prosecution
case consisted of Rule 404(b) evidence, and that too much of the trial court’s opinion
was devoted to explaining its decision to admit it (majority opinion, *13, *15). But
the law imposes no quantitative or statistical limit for relevant evidence.5
Further, the majority opinion neglects to mention that, even while he deemed
them excessive, Lynn simultaneously argued these 21 cases were too few (Lynn’s
Superior Court brief, 65).6
That defense argument that there were not enough other-bad-acts cases relied

5

The majority cites no authority for a quantity limit, but cites a decision of this
Court rejecting such an argument. Commonwealth v. Boczkowski, 846 A.2d 75, 93
(Pa. 2004) (claim that 52% of total prosecution evidence concerned another crime
warranted relief due to “sheer volume” failed where evidence was relevant and there
were “repeated cautionary charges”). In Commonwealth v. Hoover, this Court
remarked, “obviously, the greater the number of prior crimen falsi convictions, the
greater the danger of assuming propensity.” 107 A.3d at 730. But this referred to the
accused’s own prior convictions. Obviously the acts of sexual abuse committed by
priests who subsequently came under Lynn’s supervision were not attributed to him.
He was accused of endangering children by creating a risk of further abuse by
pursuing a deliberate policy of concealment.
6

Indeed, as noted in (now) Justice Donohue’s dissent, here the majority relies on
an argument defendant never raised (dissent, *21). Lynn did not purport to complain
of an excessive amount of relevant evidence, but rather declared that “none” of it was
relevant. But if that were true, volume would be beside the point.
24

 on the legal principle that, to prove a mental state such as knowledge or intent (a
critical factor in this case), evidence of other bad acts must show “a consistency of
actions amounting to a custom, habit or usage,” and “must indicate sufficient
regularity to make it probable that the same actions would be carried out in every
instance or in most instances.” Commonwealth v. Schwartz, 285 A.2d 154, 158 (Pa.
1971) (“For over one hundred years this Court has held admissible evidence of the
commission of prior crimes when such evidence shows a consistency of actions
amounting to a custom, habit or usage ... [t]he evidence ... must indicate sufficient
regularity to make it probable that the same actions would be carried out in every
instance or in most instances”).
This principle requires more, not fewer, instances of prior conduct. That was
all the more true in this case, in which it was necessary not only to prove Lynn’s
knowledge and intent, but that he was pursuing a deliberate and consistent policy of
concealment. Proving that was essential to refute his claim that the sexual abuse in
this case was an accident he tried to prevent and could not have anticipated. To
demonstrate he was deliberately executing a policy that consciously accepted the risk
of further sexual abuse of children in his care, it was essential to show other incidents
with “consistency of actions” and of “sufficient regularity to make it probable that the
same actions would be carried out in every instance or in most instances.” Lynn’s
criminal plan would remain invisible – just as it was designed to be – if its
components were “presented in a vacuum, lacking context.” Commonwealth v.
Williams, 936 A.2d at 31.
25

 While there is thus no principled reason to deem 21 instances of relevant
evidence too many, and the evidence here was admitted under precedent requiring
more rather than fewer, the Superior Court majority makes matters worse by failing
to accurately consider the need for it. In a case where a drug dealer murdered a rival,
21 instances of other crimes evidence might easily be excessive. But here the
Commonwealth had the burden of proving conspiracy and the crime of endangering
the welfare of children by inference, where the accused was a respected and
sympathetic figure, a high executive official in a highly revered religious institution,
who claimed to be pursuing sound policies that failed to prevent only one
unforeseeable mistake. In conducting its balancing test the trial court was entitled to
consider the necessity of the evidence in reaching the truth. Commonwealth v.
Gordon, 673 A.2d at 870 (“Whether relevant [other crimes] evidence is unduly
prejudicial is a function in part of the degree to which it is necessary to prove the case
of the opposing party”). The Superior Court majority erred in ignoring that necessity.
4.

The risk of improper prejudice was minimal.
As noted, relevance for a proper purpose, itself, reduces risk of improper

prejudice, and balancing the risk is for the trial court in its discretion. The Superior
Court majority erred in not only usurping the trial court’s balancing function, but
performing it inappropriately. And notwithstanding all that, the majority’s error was
all the more egregious due to its distorted understanding of prejudice.
The Superior Court majority treats the Rule 404(b) evidence as obviously and
inherently inflammatory, but its sole explanation for deeming it so is a complete non26

 sequitur:
Appellant's mishandling of priests other than Avery and Brennan, who
molested different children, and in different circumstances, was not
clearly within the web of facts pertaining to Appellant's misconduct with
Brennan and Avery. This is true regardless of whether his actions in
those other cases tended to speak to an overarching motive to protect the
Church and/or Archdiocese from ill-repute at the expense of the safety
of children in the Archdiocese. Moreover, the other-acts evidence that
did not relate to Appellant's prior conduct, but instead to the conduct of
his predecessors, was not at all within the web of facts that pertained to
Appellant's mishandling of Avery and Brennan.
Majority opinion, *15.
According to the Superior Court majority, then, the evidence was unfairly
prejudicial because (1) it revealed Lynn “mishandled priests other than Avery and
Brennan,” and (2) some of it “did not relate to [his] prior conduct, but instead to the
conduct of his predecessors[.]” But this argument does not concern improper
prejudice at all; it goes to relevance. As discussed, the evidence was clearly relevant
to a proper purpose.
Improper prejudice consists of jurors being swept “beyond a rational
consideration of guilt or innocence of the crime on trial,” Commonwealth v. Ulatoski,
371 A.2d at 192 n.11, and “misus[ing] the evidence [to] convict based solely upon
criminal propensity.” Commonwealth v. Dillon, 925 A.2d at 137. This evidence was
not improperly prejudicial. Contrary to the puzzling assertion of the Superior Court
majority that some of it did not concern Lynn’s own conduct at all but only that of his
“predecessors,” Lynn – as shown above – was significantly and personally involved
in each instance. But to the extent that (as the majority claimed in deeming it
prejudicial) such evidence supposedly involved only conduct by his predecessors in
27

 which Lynn was supposedly wholly uninvolved, that would make it all the more
unlikely for a jury to mistake it as evidence of Lynn’s criminal propensity.
Likewise, evidence proving only that Lynn “mishandled” priests who had
committed crimes could not reasonably lead jurors to infer he had a propensity to
commit such crimes. Just as no one blames disease on the doctor, it would have been
obvious to jurors that Lynn, the “point man” assigned to tackle the problem, did not
personally commit any acts of sexual abuse of children. It was instead clear that he
stood accused of failing in his duty to prevent the risk of further sexual abuse by
priests under his supervision by following a scheme of concealment and disavowal.
Hence, the risk of improper prejudice identified by the Superior Court majority – i.e.,
that the jurors might irrationally convict Lynn regardless of the law or the charges due
to the prior misconduct of others – here was inherently less than in typical Rule
404(b) situations.
Two other factors that should have weighed heavily against finding undue
prejudice, the Superior Court majority simply brushed aside: the jury’s verdict, and
the trial court’s multiple limiting instructions.
The jurors could not have been swept “beyond a rational consideration of guilt
or innocence,” Commonwealth v. Ulatoski, supra, because they deadlocked as to coconspirator Brennan and found Lynn not guilty of three out of four charges. See
Commonwealth v. Iacino, 490 Pa. 119, 126, 415 A.2d 61, 65 (1980) (claim that jurors
could not keep the evidence separate in a joint trial was contradicted by their verdicts,
which acquitted two co-defendants, convicted another of four of five charges and
28

 Iacino of two of five charges; “As the jury was able to sift through the evidence
before it, appellant's claim of prejudice is without merit”); see also United States v.
Hudgins, 2009 WL 2219240, at *3 (3d Cir. 2009) (unpublished) (“If Hudgins's
testimony concerning the second robbery had tainted the jury's treatment of the first
robbery, they would not have acquitted him of it. Concluding that there was
prejudice, as Hudgins's brief does, ignores this reality”).
The panel majority’s explanation for disregarding the jurors’ three acquittal
verdicts in its prejudice analysis is another exercise in non-sequitur reasoning. The
majority states it is “ill-suited to the task of reading the minds of twelve jurors so as
to ascertain why they chose to acquit [on] some charges but not others” (majority
opinion, *17). It also refers to “narrative[s]” that could be “constructed” to explain
the verdicts; but despite deeming it “preferable judicial policy to avoid such
speculation,” it concludes that, absent some such “narrative,” the disputed evidence
was inadmissible (id.). The majority adds that the verdicts “tells us very little”
because “we review the trial court’s evidentiary decision for its potential to cause
unfair prejudice, not for actual prejudice” (id., *18).
This analysis simply makes no sense. There was no need for “narratives” about
“why” the jury chose its verdicts. Discriminating between guilt and innocence
demonstrates “rational consideration of guilt or innocence.” That is precisely what
improper prejudice, were it present, would prevent. The Superior Court did not have
to read minds to acknowledge this reality, any more than did this Court in deciding
Iacino. What mattered was not what the jurors’ reasons were, but that they were
29