Commonwealth v. Taylor

1

COMMONWEALTH OF PENNSYLVANIA Appellant v. EMMANUEL TAYLOR Appellee

No. 159 WDA 2022

No. J-S36023-22

Superior Court of Pennsylvania

April 14, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered January 31, 2022 In the Court of Common Pleas of Blair County Criminal Division at No(s) CP-07-CR-0000917-2018

BEFORE: STABILE, J., KING, J., and COLINS, J. ^[*]

MEMORANDUM

KING JUDGE

Appellant the Commonwealth of Pennsylvania, appeals from the order entered in the Blair County Court of Common Pleas, which granted the oral motions in limine raised by Appellee, Emmanuel Taylor, prior to the commencement of his trial. The Commonwealth appealed pursuant to Pa.R.A.P. 311(d) and certified that the order substantially handicapped the prosecution.^[1] We affirm in part, reverse in part, and remand for further proceedings.

The trial court set forth the facts and procedural history of this case as follows.

The facts in this case, as taken from the testimony from the motion to suppress held January 8, 2019, and the police criminal complaint filed of record, are as follows:

On April 1, 2018, the codefendant, Darien Riddick, was driving a vehicle southbound on Interstate 99. He passed Pennsylvania State Trooper [Rusty] Hays, who was on his way to work in an unmarked police cruiser, traveling between 70 and 80 mph. Hays testified the codefendant's vehicle approached him traveling at a high rate of speed from behind and failed to signal when going from the right[-]hand lane to the left[-]hand lane, and after the pass failed to signal to move from the left-hand lane back to the right-hand lane.

The trooper effectuated a traffic stop. He approached the vehicle on the driver's side; the driver put the window down, and the trooper immediately detected the smell of marijuana coming from the vehicle as he spoke with the driver. He suspected Riddick of driving while under the influence of a schedule I controlled substance. He continued to detect the odor of marijuana coming from the vehicle and called for another unit so he could perform a search of the vehicle. He performed what he characterized as a probable cause search of the vehicle searching specifically for marijuana. He characterized this search as being based off of probable cause of plain view/plain smell of marijuana. While searching the vehicle he located a clear plastic jug in the middle of the rear seat of the vehicle. The jug was wrapped in a winter beanie style hat. Inside that jug were two bags of a green leafy substance suspected to be marijuana. According to the police criminal complaint, the marijuana in the two bags weighed [between] 21 and 27 grams. Continuing to search the vehicle, [Trooper Hays] discovered a silver and black 9 mm Ruger pistol underneath the driver's seat.

There were two individuals in the vehicle and the passenger, [Appellee], was seated in the backseat driver's side. The trooper testified that the firearm was accessible by both the driver and the backseat passenger. A records check revealed that the firearm was stolen and that the backseat passenger, [Appellee], had Maryland criminal history indicating a felony possession with intent to distribute a controlled substance offense from January, 2010, making him ineligible to possess a firearm or to be licensed to carry a firearm.

[Appellee] was charged with one count of manufacture, deliver or possess with intent to deliver a controlled substance under 35 P.S. § 780-113(a)(30) and one count of criminal conspiracy to commit the same pursuant to 18 Pa.C.S.A. § 903(a)(1); one count of criminal conspiracy to engage in receiving stolen property, 18 Pa.C.S.A. § 903(a)(1) with object crime 18 Pa.C.S.A. § 3925(a); one count of receiving stolen property 18 Pa.C.S.A. § 3925(a); one count of possession of firearm prohibited under 18 Pa.C.S.A. § 6105(a)(1); one count of firearms not to be carried without a license under 18 Pa.C.S.A. § 6106(a)(1); one count of marijuana, small amount for personal use 35 P.S. § 780-113(a)(31)(i); and one count [of] use and possession of drug paraphernalia under 35 P.S. § 780-113(a)(32).

The codefendant, Mr. Riddick, was charged with the same offenses except that he did not have a criminal record, and therefore was not charged with the offenses about firearm possession. The Commonwealth offered him ARD after he gave them a proffer that the firearm was not his.

[Appellee] filed a motion to suppress, which was denied April 11, 2019.… On September 28, 2020, the firearms charges were severed from the other charges for trial.

The matter was convened for jury trial on October 29, 2020. Before the trial, on October 28, 2020, the defense made a motion for authorization to issue an out of state subpoena and motion for continuation of trial. Defense counsel alleged that [Mr.] Riddick was a material exculpatory witness whose testimony was now necessary at trial. Defense counsel alleged, and had marked as defendant's Exhibit 1, a statement purportedly made by [Mr.] Riddick.

In that statement Mr. Riddick purportedly said that the firearm in the vehicle did not involve [Appellee] and he was willing to speak up and take full responsibility for the firearm in this matter. Riddick was not available for trial that day, and upon request of [Appellee], by order dated October 29, 2020, the court continued the trial.

Subsequently, in a document docketed in [Mr.] Riddick's case… [Mr. Riddick] indicated his intent to assert his constitutional right under the Fifth Amendment not to testify in [Appellee's] trial.

[Appellee's] second jury selection was January 24, 2022, with trial scheduled January 31, 2022-February 1, 2022.

On January 31, 2022, the impaneled jurors were present and the jury convened. Defense counsel challenged the Commonwealth's intent to call the owner of the gun that was found in the case to testify the gun was stolen.

The defense submitted that the fact that the gun was stolen was not relevant to the case, in which the charges were only person not to possess a firearm and carrying a firearm without a license, the other charges having been previously severed.

The Commonwealth argued that because the crime was a crime of possession the Commonwealth should be able to put on the evidence of to whom the item in question legally belonged.

The defense argued that the Commonwealth was "…getting evidence that a gun was stolen to try to 'back door' to say that he ([Appellee]) must have possessed it because it was a stolen gun and somebody is guilty of stealing the gun or something. That tends to incriminate him and Mr. Riddick for something they are not being tried for this time." (N.T. Trial, 1/31/22, at 4).

The court considered the arguments of the parties and applied Pennsylvania Rule of Evidence 403. The court determined that whence the firearm came is not relevant to the elements of the offenses. The court found that testimony that the gun was stolen would be unduly prejudicial to this defendant because the jury would or could make the leap or speculate about whether it was this defendant who stole the weapon from the person that the Commonwealth was establishing in testimony as its rightful owner. The court noted that the test was not just whether it would be prejudicial to the defendant, but whether it [would] be unduly prejudicial, and since it would raise the specter of the defendant potentially being assigned responsibility for a crime [for] which he was not yet on trial, the court excluded the relevant evidence because its probative value was outweighed by a danger of unfair prejudice, or confusing or misleading the jury.

(Trial Court Opinion, 1/30/23, at 1-6) (citation formatting provided).

Appellee also made an oral motion in limine, challenging the authenticity of the certified copy of Appellee's prior record from the court in Frederick, Maryland. Appellee observed that the document did not contain a seal, and it was not double certified. (N.T. Trial, 1/31/22, at 5-6). The Commonwealth, who bore the burden of proving that the document was properly authenticated in order to be admissible, explained the following:

As to the certified copy, the Frederick Maryland Court summary that I am holding here we discussed in chambers, I would submit under Rule 902(4), certified copies of public records, this would come in as well independently. It is a copy of an official record or a copy of a document that was recorded or filed in the public office as authorized by law. If the copy is certified as correct by, A, the custodian or another person authorized to make the authorization …

(Id. at 7). In response to the court's question, the Commonwealth conceded that it did not have a custodian or other person authorized to make the certification here today, but insisted that "it is certified by that person on the document itself and…it is a self[-]authenticated document. That is what is intended by that rule, this exact rule that we have here." (Id.) The court explained that under its interpretation of Rule 902(4), the document can be authenticated either by the custodian present and testifying from the witness stand under subsection (A) or under subsection (B), by a certificate that complies with Rule 902(1), (2), or (3), a statute or rule prescribed by the Supreme Court. (Id. at 8). Ultimately, the court found:

The paperwork produced by the Commonwealth from the Circuit Court for Frederick County captioned case summary, stamped received October 19th, 2020 District Attorney's Office and stamped below true copy test Sandra K. [Dalton], clerk, does not meet the requirement under Pennsylvania law for double certification and the [c]ourt at this time will prevent the Commonwealth from producing it in its case in chief.… So what that means is this is a

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