Com. v. Sami, N.

J-A26038-20

2020 PA Super 294

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

NASEEMA SAMI : No. 252 EDA 2020

Appeal from the Order Entered January 3, 2020

In the Court of Common Pleas of Montgomery County Criminal Division

at No(s): CP-46-CR-0003563-2019

BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED DECEMBER 22, 2020

The Commonwealth of Pennsylvania appeals from the order of the Court

of Common Pleas of Montgomery County denying the Commonwealth’s motion

in limine seeking to introduce prior bad act evidence in the prosecution of

Appellee Naseema Sami (“Sami”) in her upcoming double murder trial. The

trial court’s order prohibits the Commonwealth from presenting or attempting

to elicit evidence regarding Sami’s possession or use of any drug other than

marijuana. The Commonwealth has certified that the trial court’s ruling will

terminate or substantially handicap the prosecution. See Pa.R.A.P. 311(d).

After careful review, we affirm the trial court’s order.

The trial court compiled the following factual background from the

parties’ pretrial motions and responses:

On Sunday, March 10, 2019, at 8:17 p.m., the West

Norriton Township Police Department was dispatched to check the

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* Former Justice specially assigned to the Superior Court.

J-A26038-20

welfare of Lila Frost who resided in the first floor apartment at 10

West Indian Lane, West Norriton Township, Montgomery County,

Pennsylvania. An upstairs tenant had not seen Lila Frost for

several days although her vehicle was parked at the property. On

Sunday, March 10, a concerned neighbor called the police to

request that they check on Lila Frost.

West Norriton Police Sergeant Dale Butler and Patrol Officers

Nathan Landes and Brian Bishop arrived on location and found the

front door to the first floor apartment secured. With the

assistance of a family member, the officers gained access to the

first floor apartment through the rear door. In the bedroom,

officers observed a female, Naseema Sami, age 43, and her son,

age 6, emerge from underneath a bed. Sergeant Butler observed

what he believed to be dried blood on Naseema Sami’s hands. In

a tub in the bathroom, Sergeant Butler located a deceased female,

later identified as Lila Frost, age 78. Sergeant Butler located a

second deceased female underneath a table in the kitchen, who

later was identified as Lorraine Gigliello, age 68.

On Sunday, March 10, 2019, Montgomery County Detective

Gregory Henry and West Norriton Township Police Detective

Charles Naber interviewed Naseema Sami, a resident of Ridley

Township, Delaware County. Sami told detectives she drove to

10 West Indian Lane on Thursday, March 7, 2019, because she

had once resided there twenty (20) years earlier and desired a

safe place to go. Sami stated that Frost, her previous landlord at

10 West Indian Lane, told Sami she could contact her if she ever

needed anything.

Sami and her six year old son entered an unlocked door to

the rear of Lila Frost’s first floor apartment. Sami told detectives

that no one was in the residence at the time. While inside the

residence, Sami answered a knock at the front door and

recognized a woman known to Sami as Lorraine. Sami thought

that Lorraine was going to call the police on her. Sami began to

strike Lorraine with several blows to the face and chest. Sami

stated that, while fighting with Lorraine, Lila Frost entered the

apartment from the rear door. Sami stated that she cut Lorraine

with a tomato sauce bottle. Sami stated that she kicked Lila Frost

into the bathtub and struck her in the head and neck until she

died. Sami and her son did not leave the residence and were

present when the police arrived three days later.

Trial Court Opinion (T.C.O.), 3/12/20, at 1-3 (paragraph spacing added).

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After Sami was searched incident to arrest and consented to a search of

her vehicle, no contraband was recovered from her person or her vehicle.

Sami was not required to submit to drug testing upon her entry to prison.

Investigating officers did not apply for a search warrant for Sami’s home.

Several days after Sami’s arrest, on March 13, 2019, Sami’s brother,

Ibraheem Choudhry (“Ibraheem”),1 gave a statement to the police, in which

he disclosed that Sami was a marijuana user. He also indicated he had

recently gone to Sami’s house to retrieve clothes for Sami’s son and made the

following observations:

I saw a bottle of generic Prozac in [Sami’s] name, it looked pretty

old. I also saw drug paraphernalia, a marijuana pipe on her

bedroom dresser. In a box in her closet there was [sic] empty

baggies with residue, foil ball with something in it, marijuana

grinder and different pipes.

Pre-trial Hearing, 11/22/19 at 40-42 (quoting Statement of Ibraheem

Choudhry, 3/13/19, at 3).2

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1 We refer to Ibraheem Choudhry as “Ibraheem” as the testimony of Sami’s

father, Muhammed Choudhry, is also relevant to this case.

2 We note that the initial statement of Ibraheem Choudhry, the statements of

Charlotte Sami and Muhammed Choudhry, and the expert report of

prosecution expert Dr. John O’Brien (as discussed infra) were not included in

the certified record submitted to this Court. It is well established that “[t]his

Court cannot meaningfully review claims raised on appeal unless we are

provided with a full and complete certified record.” Commonwealth v.

Miller, 212 A.3d 1114, 1127 (Pa.Super. 2019).

After an informal inquiry was made to the trial court through this Court’s

Prothonotary to locate the missing documents, there is no evidence that the

Commonwealth caused the problem in transmitting the record. In addition,

both parties and the trial court quote the relevant portions of each document.

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On March 14, 2019, officers interviewed Sami’s parents, Charlotte Sami

and Muhammed Choudhry. Sami’s mother, Charlotte Sami, admitted that

“[w]e suspected that [Sami] was using drugs in the early 90’s, I don’t know

what kind of drugs. That was based on her appearance at the time. I don’t

know about drugs or alcohol recently.” T.C.O. at 6 (quoting Statement of

Charlotte Sami, 3/14/19, at 2). Muhammed Choudhry recalled that his

daughter, Sami, got into trouble with alcohol about fifteen years earlier, but

did not think she currently used drugs or alcohol. T.C.O. at 6 (citing Statement

of Muhammed Choudhry, 3/14/19, at 2).

On July 23, 2019, the prosecution charged Sami with first-degree

murder (two counts), third-degree murder (two counts), and other related

charges. On October 23, 2019, Sami filed a notice of insanity defense and a

report prepared by defense expert Dr. David DeMatteo, who concluded that

Sami satisfied the diagnostic criteria for Delusional Disorder and opined that

she was experiencing delusional beliefs and intense paranoia at the time of

the instant offenses such that “her ability to understand the nature/

wrongfulness of her actions was significantly compromised due to her severe

mental illness.” DeMatteo Expert Report, at 25.

Dr. DeMatteo also specified that during his evaluation, Sami denied any

significant history of substance abuse, but admitted to using marijuana

____________________________________________

In the interest of judicial economy, we will review the prosecution’s claim as

if these omitted documents were part of the certified record. See Miller,

supra.

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“occasionally” due to pain from cramps and in her neck. DeMatteo Report, at

14. In addition, Dr. DeMatteo had also interviewed Sami’s parents, who

disclosed that they believed that Sami “hid” her alcohol use from them and

likely used drugs, but they did not have firm evidence of her drug use. Id.

Sami’s parents revealed that they had found in Sami’s bedroom “a hash pipe

and drug paraphernalia, an e-cigarette with a ‘thick, syrupy liquid,’ and a cigar

box that contained a razor blade, ‘white powder’ and a ‘tablet.’” Id. at 14-15.

Sami’s father told Dr. DeMatteo that Sami’s “face was changing and her

attitude was changing … like drug people.” Id. at 15.

On November 21, 2019, during a witness preparation meeting,

Ibraheem provided additional details about the drug paraphernalia found in

Sami’s bedroom after the crimes at issue. Ibraheem had observed glass

straws or pipes that were scorched on one end, as well as plastic baggies

containing a translucent, brown crystalline residue that “might have been”

methamphetamine. Statement of Ibraheem Choudhry, 11/21/19, at 2-3.

Ibraheem’s belief was based on training he received in criminal justice

classes he attended at Lockhaven University and in his completion of the

Delaware County Police Academy in 2005. Id. Ibraheem did not indicate that

he had any experience as a police officer. Id. Ibraheem shared that he had

twelve years’ experience as a volunteer firefighter but admitted that he had

not encountered any illegal drugs in his capacity as a firefighter. Id.

Ibraheem further stated that after he told his parents and defense

investigators about his discovery, defense investigators removed the

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paraphernalia from the home. Id. at 3. Ibraheem also shared that when he

last saw Sami, he was startled by her appearance as Sami “seemed to have

lost a significant amount of weight and appeared frail” as compared to when

he last saw Sami five to six months earlier. Id.

On November 22, 2019, the Commonwealth filed a motion in limine to

compel discovery of the drug paraphernalia recovered from Sami’s residence.

That same day, the trial court held a hearing on the parties’ pretrial motions,

which included, inter alia, the Commonwealth’s motion to compel discovery.

At that hearing, the prosecutor and lead detective admitted that, at the

time that they were made aware in March 2019 that drug paraphernalia was

discovered in Sami’s home, the prosecution did not understand the relevance

of that evidence as it related to the murder charges. Pretrial motion hearing,

11/22/19, at 16-18. The detective did not apply for a search warrant for

Sami’s residence as he did not believe there was probable cause to do so. Id.

at 16-18, 42-45. However, the prosecution had since learned that evidence

of Sami’s past drug usage factored into the opinion of the prosecution’s

psychiatric expert witness, Dr. John O’Brien, who was still in the midst of

preparing his expert report. Id. at 17-18.

Michael Dayoc, the chief investigator for the Montgomery County Public

Defender’s Office, testified that on July 9, 2019, Sami’s parents insisted that

defense investigators take various items of drug paraphernalia from Sami’s

bedroom in their home. Id. at 63-65. Dayoc indicated that Sami’s parents

were afraid that they would be prosecuted and “locked up for this little bit of

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[drug paraphernalia] in the residence.” Id. at 65. Defense investigators

recovered a marijuana grinder, a vape pen, a marijuana bud, plastic baggies,

a prescription pill bottle, rolling papers, a wooden box, and a receipt. Id. at

65-66. Dayoc admitted to throwing away some of the items, as he felt these

items had no bearing on the instant case. Id. at 67. Dayoc denied seeing a

foil ball or glass pipes and recalled that the baggies did not have anything in

them. Id. at 69-70. Dayoc testified that the only evidence he had remaining

in his possession were the vape pen, pill bottle, and wooden box. Id. at 73.

At the conclusion of the hearing, the trial court ordered the defense to

turn over to the prosecution the remaining pieces of evidence that had been

seized from Sami’s residence. The trial court also directed the prosecution to

seek expedited testing of these items.

On November 23, 2019, the Commonwealth’s expert, Dr. O’Brien,

submitted a report in which he offered the following opinion:

It is my opinion that the most appropriate diagnosis for Ms. Sami’s

array of symptoms at the time of the offense and preceding it is

Substance Intoxication/Substance Induced Psychotic Disorder. It

is my opinion that those symptoms were the result of voluntary

intoxication utilizing marijuana and very possibly other drugs.

Regardless of how one diagnoses Ms. Sami, it is clear to me that

at the time of the offense, she was able to appreciate the nature

and quality of her acts in connection with the physical altercations

that she had on March 7, 2019 with Lorraine Gigliello and Lila Frost

which resulted in their deaths. My evaluation of Ms. Sami

indicates that throughout the period of time that she was

symptomatic she maintained sensitivity to and awareness of

potential illegal or wrongful behaviors. It is my opinion that at the

time of the offense she was able to appreciate the wrongfulness

of her acts under generally accepted societal standards, even if

she felt justified in killing Ms. Gigliello and Ms. Frost in self-defense

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arising out of their behavior toward her and the paranoid

symptoms she was experiencing during that period of time. While

Ms. Sami’s ability to conform her conduct to the requirements of

the law may have been compromised at the time of the offense,

it is my opinion that it was compromised by her voluntary use of

drugs.

All the aforementioned opinions are rendered to a reasonable

degree of medical and psychiatric certainty.

T.C.O. at 5 (quoting O’Brien Report, at 25) (emphasis added).

On November 25, 2020, defense counsel filed a motion in limine,

seeking to exclude any reference to the drug evidence, contending there is no

evidence that Sami used drugs at or near the time of the instant crimes.

Defense counsel argued that any evidence that Sami had possession of

methamphetamine or cocaine was speculative and asserted that Ibraheem’s

claim that the baggies contained methamphetamine was improper expert

testimony from a laywitness.3 As such, defense counsel asked the portion of

Dr. O’Brien’s report referring to Sami’s use of drugs other than marijuana be

excluded as it is based on speculative evidence.

In addition, defense counsel asked the trial court to exclude any

reference to the marijuana as the cause of the incident and asked that a Frye

hearing be held to determine on whether it is scientifically accepted that

marijuana can cause extreme violence.

On December 13, 2019, the Commonwealth filed a “Motion to Introduce

Evidence of the Defendant’s Other Bad Acts,” arguing, inter alia, that the drug

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3 Defense counsel also included a request to withdraw if the drug evidence

was admitted, asserting that the disclosure would create a conflict of interest.

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paraphernalia found in Sami’s home and her family members’ statements

were admissible under the intent and res gestae exceptions to Pa.R.E. 404(b).

The Commonwealth intended to present evidence that Sami had drug

paraphernalia in her home that could have been used to ingest controlled

substances, which can contribute to feelings of paranoia and anxiety.

On January 3, 2020, the trial court entered an order denying in part and

granting in part the Commonwealth’s “Motion to Introduce Evidence of

Defendant’s Other Bad Acts,” providing in pertinent part that “the

Commonwealth is PROHIBITED from questioning, referencing, arguing or

eliciting testimony or presenting evidence regarding any drug possession or

use by defendant other than marijuana.” Order, 1/3/20, at 1.4 In addition,

the order stated that “[t]he Commonwealth’s expert, Dr. John O’Brien, is

PROHIBITED from referencing or testifying at trial about any other drugs or

drug paraphernalia besides marijuana.” Id.5 The Commonwealth filed a

timely appeal and complied with the trial court’s direction to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

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4 The order also included a footnote indicating that “[t]he Commonwealth

represented to the court that the testing of the items produced for inspection

and testing obtained from [Sami’s] residence revealed the presence of

marijuana and its active agent THC and no other drugs.” Order, 1/3/20, at 1.

5 Moreover, in this order, the trial court scheduled a hearing on the defense’s

“cross-motion” to determine whether a sufficient factual and causal foundation

exists regarding Sami’s history of marijuana use to support Dr. O’Brien’s

opinion that suffered a “Substance Intoxication/ Substance Induced Psychotic

Disorder” at the time of her offenses. The trial court indicated that it would

defer its ruling on this issue until the conclusion of the hearing. Id. at 1-2.

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The Commonwealth raises the following question for review on appeal:

Whether the trial court abused its discretion by excluding evidence

about any drug possession or use by [Sami] other than marijuana,

where that evidence was relevant and, because its probative value

outweighs any prejudice, admissible to show intent, knowledge,

and state of mind?

Commonwealth’s Brief, at 6.

In a criminal case, “the Commonwealth may take an appeal as of right

from an order that does not end the entire case where the Commonwealth

certifies in the notice of appeal that the order will terminate or substantially

handicap the prosecution.” Pa.R.A.P. 311(d). See Commonwealth v.

Moser, 999 A.2d 602, 604 (Pa.Super. 2010) (finding Commonwealth could

appeal the trial court’s denial of its motion in limine which resulted in the

exclusion of prosecution evidence and had the effect of substantially

handicapping the prosecution). As the trial court’s ruling in this case had the

effect of excluding prosecution evidence and the Commonwealth certified that

the ruling substantially handicaps the prosecution,6 this appeal is proper.

In reviewing the denial of the Commonwealth’s motion in limine, our

standard of review is as follows:

when reviewing the denial of a motion in limine, we apply an

evidentiary abuse of discretion standard of review. See

Commonwealth v. Zugay, 745 A.2d 639 (Pa.Super. 2000)

(explaining that because a motion in limine is a procedure for

obtaining a ruling on the admissibility of evidence prior to trial,

which is similar to ruling on a motion to suppress evidence, our

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6 While Sami asks this Court to question the grounds for the Commonwealth’s

good faith certification, we are not permitted to conduct such an inquiry.

Moser, 999 A.2d at 605, n.2.

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standard of review of a motion in limine is the same of that of a

motion to suppress). The admission of evidence is committed to

the sound discretion of the trial court and our review is for an

abuse of discretion.

Commonwealth v. Kane, 188 A.3d 1217, 1229 (Pa.Super. 2018) (quoting

Commonwealth v. Stokes, 78 A.3d 644, 654 (Pa.Super. 2013) (citations

and brackets omitted)).

Specifically, the Commonwealth argues that the trial court abused its

discretion in precluding the admission of the drug paraphernalia evidence

found in Sami’s home which the prosecution argues was admissible under Rule

404(b) to show Sami had “access to, knowledge of and used those drugs in a

way that impacted her state of mind during the double murders.”

Commonwealth’s Brief, at 22.

As a general rule, “the threshold inquiry with admission of evidence is

whether the evidence is relevant.” Commonwealth v. Cook, 597 Pa. 572,

602, 952 A.2d 594, 612 (2008) (citations omitted). Our rules of evidence

state that “[a]ll relevant evidence is admissible, except as otherwise provided

by law. Evidence that is not relevant is not admissible.” Pa.R.E. 402.

Pennsylvania Rule of Evidence 401 provides that “[e]vidence 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. Further, this Court has provided that “[e]vidence is

relevant if it logically tends to establish a material fact in the case, tends to

make a fact at issue more or less probable or supports a reasonable inference

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or presumption regarding a material fact.” Commonwealth v. Akhmedov,

216 A.3d 307, 316 (Pa.Super. 2019).

However, “[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.

Specifically, with respect to the admission of prior bad act evidence, we

are guided by the following principles:

In Commonwealth v. Sherwood, 603 Pa. 92, 982 A.2d 483

(2009), the Pennsylvania Supreme Court set forth the general

principles regarding the admissibility of prior bad acts at trial as

follows:

Generally, evidence of prior bad acts or unrelated criminal

activity is inadmissible to show that a defendant acted in

conformity with those past acts or to show criminal

propensity. Pa.R.E. 404(b)(1). However, evidence of prior

bad acts may be admissible when offered to prove some

other relevant fact, such as motive, opportunity, intent,

preparation, plan, knowledge, identity, and absence of

mistake or accident. Pa.R.E. 404(b)(2). In determining

whether evidence of other prior bad acts is admissible, the

trial court is obliged to balance the probative value of such

evidence against its prejudicial impact.

Id.at 497, citing Commonwealth v. Powell, 598 Pa. 224, 956

A.2d 406, 419 (2008). “The Commonwealth must prove beyond a

reasonable doubt that a defendant has committed the particular

crime of which he is accused, and it may not strip him of the

presumption of innocence by proving that he has committed other

criminal acts.” Commonwealth v. Ross, 57 A.3d 85, 98–99

(Pa.Super. 2012) (en banc) (citations omitted).

In Ross, an en banc panel of this Court acknowledged the

possibility that Rule 404(b)(2)'s exceptions could swallow the

general rule, and offered the following caution:

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The purpose of Rule 404(b)(1) is to prohibit the admission

of prior bad acts to prove “the character of a person in order

to show action in conformity therewith.” Pa.R.E. 404(b)(1).

While Rule 404(b)(1) gives way to recognized exceptions,

the exceptions cannot be stretched in ways that effectively

eradicate the rule. With a modicum of effort, in most cases

it is possible to note some similarities between the accused's

prior bad act conduct and that alleged in a current case. To

preserve the purpose of Rule 404(b)(1), more must

be required to establish an exception to the rule—

namely a close factual nexus sufficient to

demonstrate the connective relevance of the prior

bad acts to the crime in question.... [T]his Court has

warned the prior bad acts may not be admitted for the

purposes of inviting the jury to conclude that a defendant is

a person “of unsavory character” and thus inclined to have

committed the crimes with which he/she is charged. See,

e.g., Commonwealth v. Kjersgaard, 276 Pa.Super. 368,

419 A.2d 502, 505 (Pa.Super.1980).

Ross, 57 A.3d at 105–06.

Commonwealth v. Sitler, 144 A.3d 156, 163–64 (Pa.Super. 2016).

In resolving the Commonwealth’s pre-trial motion in limine, the trial

court did not discuss whether the drug evidence was relevant to the murder

charges. Instead, the trial court found that even if the drug evidence was

relevant, it should be excluded as it was overly prejudicial. The trial court

emphasized that there was no evidence that Sami ingested drugs on the date

of the crimes as there were no drugs found on Sami at the time of her arrest

or at the scene of the crimes. Moreover, the trial court explained:

In the instant matter, the Commonwealth asserts that the

drug evidence should be admitted under the res gestae exception.

The Commonwealth seeks to use this evidence to characterize Ms.

Sami as a drug user. Even if admissible, the prejudicial impact of

introducing evidence of drug possession outweighs its probative

value. … There is no nexus between drug possession and the

crimes charged. There is no timeline connecting any drug use to

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the crimes charged. The evidence of which and when specific

drugs were consumed is purely speculative and is not proper

404(b) evidence.

T.C.O. at 13.

In Commonwealth v. duPont, 730 A.2d 970, 980–81 (Pa.Super.

1999), this Court affirmed the trial court’s decision to allow the prosecution to

admit evidence of defendant’s prior substance abuse in rebuttal after the

defense had raised an insanity defense to the murder charge and had offered

expert testimony to show the appellant’s mental illness was not the result of

substance abuse. However, we note that the appellant in duPont offered

presented multiple “defense witnesses, both lay and expert, [who] made

detailed references in their testimony to [the] appellant’s use of cocaine and

alcohol.” Id. The duPont Court noted that “the cause of appellant's mental

illness was clearly crucial to the defense, and consideration of his substance

abuse, particularly by his expert witnesses, was an indispensable facet of

establishing the history of that mental illness.” Id. at 981.

Based on this precedent, we acknowledge that evidence of a defendant’s

prior drug use is relevant to rebut an insanity defense to murder charges by

showing that the defendant’s mental illness was a drug-induced psychosis.

Defense expert Dr. DeMatteo acknowledged in his expert report that it was

necessary to consider Sami’s use of controlled substances in establishing the

history of her mental illness. DeMatteo Report, at 14-15.

Nevertheless, in this case, the Commonwealth has not shown that the

disputed evidence of Sami’s alleged use of methamphetamine and cocaine is

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relevant, such that “it logically tends to establish a material fact in the case,

tends to make a fact at issue more or less probable or supports a reasonable

inference or presumption regarding a material fact.” Pa.R.E. 401. Moreover,

the prosecution failed to establish “a close factual nexus sufficient to

demonstrate the connective relevance” between her possible possession of

cocaine and methamphetamine to the crimes in question. Sitler, supra;

Ross, supra.

The prosecution has not presented any evidence to show that Sami

ingested these drugs on or around the date of the crimes. Upon her arrest,

no drug evidence or paraphernalia was found on Sami’s person or her vehicle.

Shortly after her arrest, Sami gave a statement to police in which she

indicated that she was not under the influence of a controlled substance.

Pretrial motion hearing, 11/22/19, at 16-17, 42-45. Moreover, the lead

detective testified that officers did not suspect Sami was intoxicated and would

not have taken Sami’s statement if they felt she was under the influence of a

controlled substance. Id. at 43-44. As there was no suspicion that Sami was

intoxicated at the time of her arrest, the police did not request toxicology

testing upon Sami’s entry into prison.

While defense investigators recovered drug paraphernalia (the vape

pen, marijuana bud, and marijuana grinder) from Sami’s residence, these

items were consistent with marijuana use. Sami has denied having any

substance abuse issues, but admitted to using marijuana occasionally. Sami’s

brother, Ibraheem, confirmed that Sami was a marijuana user.

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Moreover, the only evidence that other drugs (cocaine and

methamphetamine) existed in Sami’s home consists of the statements of her

family members concerning items they observed in Sami’s bedroom, namely

a white powder, a tablet, and baggies containing a brown crystalline residue.

As these items were never turned over to law enforcement, testing was never

performed to identify the substances.

While Ibraheem later told officers that he observed in Sami’s bedroom

a plastic baggie containing brown crystalline residue that “might have been”

methamphetamine, we agree with the trial court that speculation itself without

corroborating evidence does not establish “a close factual nexus sufficient to

demonstrate the connective relevance” between Sami’s possible possession of

cocaine and methamphetamine to the crime in question.7

We find that the probative value of this evidence is outweighed by the

potential for prejudice to the defense. Allowing the prosecution to admit

speculative evidence of Sami’s possible use of cocaine and methamphetamine

that lacked a factual nexus to the murder charges would have the potential to

confuse the jury or to result in unfair prejudice, in “suggesting a decision on

____________________________________________

7 The trial court never specifically ruled on the defense’s motion challenging

Ibraheem’s qualifications and experience to identify the substance he claims

he observed as methamphetamine. Even assuming arguendo that the trial

court had found this testimony was admissible, we are not persuaded that

Ibraheem’s statements established connective relevance between the alleged

methamphetamine and Sami’s commission of the instant crimes to render

Ibraheem’s statement to be proper 404(b) evidence.

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an improper basis or to divert the jury’s attention away from its duty of

weighing the evidence impartially.” Pa.R.E. 403 cmt.

Accordingly, we conclude that the trial court properly exercised its

discretion in denying the Commonwealth’s motion in limine seeking to admit

evidence suggesting Sami possessed and used drugs other than marijuana

(cocaine and methamphetamine).

Given this conclusion, we agree with the trial court’s decision to prohibit

prosecution expert Dr. O’Brien from testifying about Sami’s possession or use

of drugs other than marijuana. Our Supreme Court has held:

An expert cannot base his opinion upon facts which are not

warranted by the record. No matter how skilled or experienced

the witness may be, he will not be permitted to guess or to state

a judgment based on mere conjecture.... To endow opinion

evidence with probative value it must be based on facts proven or

assumed, sufficient to enable the expert to form an intelligent

opinion. The opinion must be an intelligent and reasonable

conclusion, based on a given state of facts, and be such as reason

and experience have shown to be a probable resulting

consequence of the facts proved. The basis of the conclusion

cannot be deduced or inferred from the conclusion itself. In other

words, the opinion of the expert does not constitute proof of the

existence of the facts necessary to support the opinion.

City of Philadelphia v. W.C.A.B. (Kriebel), 612 Pa. 6, 18–19, 29 A.3d 762,

770 (2011) (quoting Collins v. Hand, 431 Pa. 378, 390–91, 246 A.2d 398,

404 (1968) (internal citations omitted)).

For the foregoing reasons, we affirm the trial court’s order denying the

Commonwealth’s motion in limine.

Order affirmed. Jurisdiction relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/22/2020

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