In Commonwealth v. Derrick Walker, the Pennsylvania Supreme Court took a hard look at one of the more slippery areas of criminal evidence law: when the Commonwealth may introduce evidence of a defendant’s other crimes or bad acts under Rule of Evidence 404(b)(2).
For decades, Pennsylvania courts have allowed “other acts” evidence under a judicially created exception for a “common plan, scheme, or design.” Over time, that exception morphed into using what courts called the “logical connection” test—a flexible standard that often asked little more than whether the charged crime and prior acts shared some similarities.
In Walker, four of the Court’s seven justices unanimously agreed that the logical-connection test has gone too far.
The End of the “Logical Connection” Test
A bare majority of the Court agreed on one thing: the logical connection test is no longer the law in Pennsylvania.
The Court acknowledged that, over time, the test drifted away from Rule 404(b)’s core purpose, which is to prevent convictions based on character or propensity evidence. See Pa.R.Evid. 404(b)(1) (“Evidene of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.”) Instead of acting as a safeguard, the test became a gateway for admitting highly prejudicial evidence based on loose or generalized similarities.
In rejecting that approach, the Court looked backward—far backward—revisiting cases from the 1800s that originally drew a sharp line between admissible “plan” evidence and impermissible character evidence.
The message is clear: similarity alone is not enough.
What Counts as a “Plan” Going Forward?
Here’s where things get complicated. Three justices (McCaffery, Donohue, and Wecht) offered that for “others acts” to be admissible in a criminal case related to certain criminal charges, the other acts must be part of something more than repeated misconduct. There must be:
- A linked plan connecting the acts to a single overarching goal, or
- Something akin to a signature—conduct so distinctive that it shows identity, not just bad character.
Stretched similarities won’t cut it. Saying that multiple crimes involved vulnerable victims, occurred in public places, or involved violence is not enough. Without proof of coordination, preparation, or a distinctive method, admitting “other acts” evidence risks turning out convictions based on character and propensity evidence.
Justice Dougherty, however, would go slightly further. In a separate opinion, he endorsed the possibility of what he called an “unlinked plan.” Under his view, other acts might still be admissible if they show advance preparation or a developed methodology—even if the crimes weren’t aimed at a single shared objective.
But even Justice Dougherty emphasized that the trial courts needs to use restraint in this area. He stressed that a plan requires forethought, not just repeated opportunism, and that courts must be vigilant to avoid dressing up propensity evidence as planning.
Why the Defendant Still Won
Despite their different reasoning, four justices agreed on the outcome: the defendant’s three separate sexual-assault cases should not have been joined for trial together.
The alleged offenses varied in timing, location, initiation, weapons used, and conduct. Whatever similarities existed, they did not demonstrate a shared plan or distinctive method sufficient to justify consolidation.
In two of the cases, Walker initiated contact with the victims; the third victim approached him. Two of the assaults occurred in the late morning; the third assault occurred near midnight. Each sexual assault occurred in a different Philadelphia neighborhood. Although Walker convinced all three victims to follow him to a secluded area, in one case, he held a knife to her neck while doing so. He did not otherwise physically assault that victim; however, he punched another victim, and struck the third victim with a tire iron. He forced two of the three victims to perform oral sex on him before raping them. He robbed only one victim. One rape occurred three years before the other two. Plainly, the three rapes for which Walker was charged cannot be linked as signature crimes.
Trying the cases together unfairly amplified the risk that the jury would reason: three accusations must mean guilt.
That, a majority of the Court said, is exactly what Rule 404(b) is meant to prevent.
What About the Rape Kit Evidence?
The Court also addressed whether rape kit reports are “testimonial” under the Confrontation Clause—meaning whether the nurse who prepared the report must testify.
Here, the Court fractured completely. There was no majority agreement, and therefore no precedential holding, on that issue. As a result, this question remains unsettled and is almost certain to resurface in a future appeal.
What Walker Really Does—and Doesn’t—Change
Walker does not provide a neat, step-by-step test for admitting evidence of a common plan, scheme, or design. In that sense, Walker is frustratingly incomplete. But it does something important.It signals that the Court is pulling back from decades of over-admission of other-acts evidence, especially where the theory begins to sound like “he’s the kind of person who would do this.” The logical connection test is gone. Similarity alone is suspect. And trial courts are being reminded that Rule 404(b) starts with a presumption of exclusion.
For defense lawyers, Walker is a tool to push back against consolidation and overbroad “common plan” arguments. For prosecutors, it’s a signal that grouping separate crimes together for trial, over tenuous similarities, will no longer work.
And for everyone else, it’s a reminder of a basic principle of criminal justice: people should be tried and convicted for the individual offenses they are accused of, not because of their character or what their propensities seem to be.