Com. v. McNeill, J.
1260 EDA 2015
| Pa. Super. Ct. | Sep 28, 2016Background
- McNeill, a massage therapist, was charged with indecent assault for allegedly reaching into a 64–65‑year‑old male client’s underwear and grabbing his penis during a July 15, 2014 massage; the client said McNeill apologized for a “misunderstanding.”
- The Commonwealth sought to admit three other acts under Pa.R.E. 404(b): April 24, 2014 (inappropriate touching of a female client’s genital area; resulted in training), July 11, 2014 (female client complained of digital contact to her genitalia; McNeill apologized; later terminated), and October 16, 2014 (digital contact and digital penetration of a female client at a hotel; arrest followed).
- All four incidents occurred while McNeill was working alone with paying clients in a massage room, often while massaging the upper thigh; the acts span six months and suggest escalation.
- The trial court denied the Commonwealth’s motion in limine to admit the other‑acts evidence under the absence‑of‑mistake and common‑scheme exceptions of Pa.R.E. 404(b).
- The Commonwealth appealed the pretrial order; the Superior Court reviewed for abuse of discretion and reversed, finding a close factual nexus and that the trial court misapplied precedent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility under absence‑of‑mistake exception (Pa.R.E. 404(b)) | Commonwealth: massage context plus apology raises an inference of mistake that prior acts can dispel | McNeill: no affirmative mistake defense raised; prior acts unduly prejudicial and not probative of intent | Reversed: other acts admissible—massage setting and apology create inference of accident; close factual nexus exists |
| Admissibility under common scheme/plan exception (Pa.R.E. 404(b)) | Commonwealth: shared facts (massage setting, upper‑thigh contact, apologies, escalation) show crimes are so related proof of one tends to prove others | McNeill: factual dissimilarities (gender of victims, location differences, victim’s age/position) negate a common scheme | Reversed: trial court abused discretion by emphasizing minor dissimilarities; record shows common plan/connective relevance |
Key Cases Cited
- Commonwealth v. Ross, 57 A.3d 85 (Pa. Super. 2012) (discussed limits on admitting prior acts to prove intent where intent was not contested)
- Commonwealth v. Boczkowski, 846 A.2d 75 (Pa. 2004) (prior‑act evidence may be admitted to dispel an inference of accident even if defendant did not raise accident defense)
- Commonwealth v. Wattley, 880 A.2d 682 (Pa. Super. 2005) (subsequent offenses can be admissible under Rule 404(b))
- Commonwealth v. Elliott, 700 A.2d 1243 (Pa. 1997) (common scheme evidence admissible where crimes are so related proof of one tends to prove the others)
- Commonwealth v. Aikens, 990 A.2d 1181 (Pa. Super. 2010) (standard of review for evidentiary rulings; courts must balance probative value against unfair prejudice)