Opinion
J-S15022-18 No. 1782 EDA 2017
07-18-2018
COMMONWEALTH OF PENNSYLVANIA v. MICHAEL ELLIOTT YOUNG, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence May 3, 2017
In the Court of Common Pleas of Delaware County
Criminal Division at No.: CP-23-CR-0003034-2016 BEFORE: STABILE, J., DUBOW, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY DUBOW, J.:
Appellant, Michael Elliott Young, appeals from the Judgment of Sentence entered by the Delaware County Court of Common Pleas following his conviction after a jury trial of Persons Not to Possess Firearms. We affirm on the basis of the trial court's November 13, 2017 Opinion.
In its Pa.R.A.P. 1925(a) Opinion, the trial court set forth the underlying facts. See Trial Court Opinion, filed 11/13/17, at 1-3, 10-11, 16-21. Briefly, on March 10, 2016, Detective Kenneth Bellis traveled with other officers to Appellant's suspected place of employment, a McDonald's restaurant in Brookhaven, Pennsylvania, to execute an arrest warrant and apprehend Appellant for Megan's Law violations. A manager permitted the officers entry into the restaurant and Detective Bellis arrested Appellant, who was standing five feet from the door.
After patting down Appellant, Detective Bellis asked Appellant if he had a jacket or any other personal belongings. After initially responding that he had a hoodie, Appellant "very quickly volunteered to the contrary that he had with him no personal effects." Trial Court Opinion at 10. Appellant repeated this claim as Detective Bellis escorted Appellant to his police vehicle. Detective Bellis returned to the restaurant and, with the manager's assistance, found in a nearby booth a hoodie and a backpack containing a loaded H&R Model 733 .32-caliber revolver.
The Commonwealth charged Appellant with, inter alia, the above offense. On June 30, 2016, Appellant filed a Motion to Suppress the physical evidence, including the firearm. Following a suppression hearing, the court denied Appellant's Motion to Suppress.
Appellant proceeded to a jury trial, at which Detective Bellis and McDonald's Manager Melissa McCullough testified; Appellant also testified. At trial, Appellant objected to evidence that he is a felon and ineligible to possess a firearm due to a prior Rape of a Child conviction because it was unduly prejudicial. Instead, Appellant offered to stipulate generally that he is a felon and ineligible to possess a firearm due to a prior conviction.
The trial court agreed to preclude any mention at trial that Appellant's prior Rape conviction involved a child, but would not require the Commonwealth to accept Appellant's more general stipulation to his status as a felon ineligible to possess a firearm. As a result, the parties subsequently agreed to stipulate to Appellant's prior Rape conviction. The trial court added a special voir dire question addressing this point with jurors, and provided several cautionary jury instructions addressing this stipulation.
On March 16, 2017, a jury convicted Appellant of Persons Not to Possess Firearms. On May 3, 2017, the trial court sentenced Appellant to a term of five to ten years' incarceration.
On June 2, 2017, Appellant filed a Notice of Appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents two issues for our review:
1) Whether the lower court erred in refusing to suppress the fruits of the unlawful warrantless search of Appellant's bag, which was conducted without probable cause or reasonable suspicion, and in violation of the rights guaranteed to him by Article 1, Section 8 of the Pennsylvania Constitution and the Fourth and Fourteenth Amendments of the United States Constitution?Appellant's Brief at 5.
2) Whether the lower court erred in permitting the government to introduce evidence of a specific conviction (rape) to establish that Appellant was prohibited from possessing firearms since the probative value of that evidence was outweighed by a danger of unfair prejudice, especially in light of his offer to stipulate to his general status as a prohibited person?
Motion to Suppress
In reviewing the denial of a Motion to Suppress, we are limited to considering only the Commonwealth's evidence and "so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole." Commonwealth v. McCoy , 154 A.3d 813, 815-16 (Pa. Super. 2017). Where the testimony and other evidence supports the suppression court's findings of fact, we are bound by them and "may reverse only if the court erred in reaching its legal conclusions based upon the facts." Id. at 816. It is within the exclusive province of the suppression court to "pass on the credibility of witnesses and determine the weight to be given to their testimony." Id. This Court will not disturb a suppression court's credibility determination absent a clear and manifest error. Commonwealth v. Camacho , 625 A.2d 1242, 1245 (Pa. Super. 1993).
"A defendant moving to suppress evidence has the preliminary burden of establishing standing and a legitimate expectation of privacy." Commonwealth v. Powell , 994 A.2d 1096, 1103 (Pa. Super. 2010) (citation omitted). "Whether a defendant has a legitimate expectation of privacy is a component of the merits analysis of the suppression motion." Id. (citation omitted).
Ordinarily, "a defendant charged with a possessory offense has automatic standing to challenge a search." Commonwealth v. Burton , 973 A.2d 428, 435 (Pa. Super. 2009) (en banc) (citation omitted). A defendant has no standing to contest the search and seizure of items that he has voluntarily abandoned or relinquished because he has no privacy expectation in the property. Commonwealth v. Byrd , 987 A.2d 786, 790 (Pa. Super. 2009) (citations omitted). In determining whether a defendant has abandoned property, we look to the defendant's intent and consider all relevant circumstances at the time of the alleged abandonment. Id. If the abandonment is coerced by unlawful police action, then the state-based constitutional principle of forced abandonment forbids using the property for evidentiary purposes. Id. at 791.
The Honorable Kevin F. Kelly, sitting as the trial court, has authored a comprehensive, thorough, and well-reasoned Opinion, citing the record and relevant case law in addressing Appellant's suppression claim. We, thus, affirm on the basis of the trial court's November 13, 2017 Opinion. See Trial Court Opinion, 11/13/17, at 3-13 (concluding that Appellant "failed to establish [a] legitimate expectation of privacy" because he abandoned the bag and the abandonment was not coerced by unlawful police action).
Stipulation to Prior Conviction
The "[a]dmission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion." Commonwealth v. Tyson , 119 A.3d 353, 357 (Pa. Super. 2015) (citation and quotation omitted). "Accordingly, a ruling admitting evidence will not be disturbed on appeal unless that ruling reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support to be clearly erroneous." Commonwealth v. Huggins , 68 A.3d 962, 966 (Pa. Super. 2013) (citations and internal quotations omitted).
Relevance is the threshold for admissibility of evidence. Commonwealth v. Cook , 952 A.2d 594, 612 (Pa. 2008). Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. Pa.R.E. 401; Commonwealth v. Drumheller , 808 A.2d 893, 904 (Pa. 2002). "Evidence that is not relevant is not admissible." Pa.R.E. 402. In addition, "[t]he court may exclude relevant evidence if its probative value is outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Pa.R.E. 403. See also Daniel J. Anders, Ohlbaum on the Pennsylvania Rules of Evidence § 401.06 et seq., § 403.06 et seq. (2017 ed. LexisNexis Matthew Bender).
A prior conviction of a certain enumerated offense is an essential element of the crime of Persons Not to Possess Firearms under Section 6105. Commonwealth v. Jemison , 98 A.3d 1254, 1261 (Pa. 2014). The defendant can offer to stipulate that his prior conviction disqualified him from possessing a firearm under Section 6105. Id. The Commonwealth, however, is under no obligation to agree to the defendant's stipulation. Id.
The Commonwealth can have the specific nature of the defendant's prior conviction admitted into evidence, over Appellant's objection, to establish the prior-conviction element of Section 6105. Id. The defendant is not subject to per se unfair prejudice simply because the Commonwealth presents evidence of the specific offense to establish the prior-conviction element of Section 6105. Id. Any unfair prejudice depends on the facts and circumstances of the particular case. Id.
After a thorough review of the certified record, the briefs of the parties, the applicable law, and the comprehensive and well-reasoned Opinion of the trial court, we conclude that there is no merit to Appellant's evidentiary claim on appeal. Accordingly, we affirm on the basis of the trial court's Opinion. See Trial Court Opinion at 13-23 (holding that: (1) Jemison constituted binding precedent and it could not force the Commonwealth to enter into a stipulation; (2) the trial court appropriately permitted the parties' stipulation informing the jury that Appellant had a prior Rape conviction, but not that it involved a child; and (3) the trial court's cautionary instructions detailing the limited purpose of this evidence prevented any unfair prejudice).
While we agree that Jemison controls the outcome of this case and we must affirm the trial court's decision to permit the Commonwealth to notify the jury that Appellant has a prior conviction for a rape, we find the application of Jemison to this case troubling. Jemison involved a prior robbery conviction while this case involves a prior conviction for a rape, a conviction that has a greater chance of inflaming a jury. The Supreme Court's holding in Jemison precludes the trial court from balancing the relevancy of the type of crime with the inflammatory nature of the prior conviction. Since the statutory language of Section 6105 involves only the existence of a prior conviction for one of the enumerated crimes, we suggest that the Pennsylvania Supreme Court revisit Jemison and consider whether the trial court should balance the relevancy of the type of crime with the potential that the prior conviction will inflame the prejudices of the jury.
We reiterate that, in similar circumstances where a defendant faces a jury trial for a Section 6105 offense with potentially prejudicial prior convictions legally permitted to be admitted into evidence, "there is a strong rationale for allowing a bifurcated presentation and deliberation to avoid prejudice, which might ultimately conserve judicial resources." Commonwealth v. Jones , No. 515 MDA 2016 (Pa. Super. filed May 24, 2017) (unpublished memorandum) (concurring statement by Judge Lazarus noting that, "Bifurcation would allow a jury to deliberate on the possession element, without the taint of evidence of a prior conviction, and end the matter if the jury found no possession -- preserving judicial resources, while avoiding potential prejudice to a defendant resulting from the introduction of a defendant's prior conviction.").
The parties are instructed to attach a copy of the trial court's November 13, 2017 Opinion to all future filings.
Judgment of Sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/18/18
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