Com. v. Taylor, E.

J-S36023-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

v. :

:

EMMANUEL TAYLOR :

:

Appellee : No. 159 WDA 2022

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 BY KING, J.: FILED: APRIL 14, 2023

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

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1We note that the Commonwealth’s certification alone is sufficient to establish

our jurisdiction over the interlocutory order. See Commonwealth v. Moser,

999 A.2d 602, 605 (Pa.Super. 2010), appeal denied, 610 Pa. 595, 20 A.3d

485 (2011) (noting Superior Court may not inquire into grounds for

Commonwealth’s good faith certification). Accordingly, this appeal is properly

before us for review. See Commonwealth v. Cosnek, 575 Pa. 411, 421,

836 A.2d 871, 877 (2003) (stating Rule 311(d) applies to pretrial ruling that

results in suppression, preclusion or exclusion of Commonwealth’s evidence).

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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,

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[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.

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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

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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

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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 two-day trial. You

still have the opportunity to get somebody here from

Maryland. You’re not barred. You’re not completely out of

court on that charge but unless you have somebody come

in, I’m not sure where you’re going to stand in regards to

after you rest your case in chief….

(Id. at 19).

The Commonwealth then notified the court that “without that

information [it] would be substantially prejudiced in proceeding in this matter

and we would be certifying for appeal” pursuant to Rule 311(d). (Id. at 20).

The court questioned the certification of appeal, noting that the trial in this

case had already begun, with the jury having been impaneled. After a recess

to research the issue, the court ruled that the case was “not in a posture for

[Rule 311(d)] to be invoked because the Commonwealth still has an

opportunity to present a witness in regards to the [c]ourt’s ruling. So it is

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not…prevented from proceeding forward….” (Id. at 24). Therefore, no appeal

having been filed, the court swore the jury. Once the Commonwealth filed a

formal written notice of appeal, the court discontinued the trial.

After receiving the notice of appeal, the trial court issued an order

docketed February 16, 2022, directing the Commonwealth to file and serve a

statement of errors complained of on appeal within 21 days of the date of the

order. The Commonwealth failed to timely file its concise statement and the

trial court concluded that the issues were waived on appeal. Nevertheless,

this Court, in accordance with Commonwealth v. Grohowski, 980 A.2d 113,

115 (Pa.Super. 2009), retained panel jurisdiction and remanded for the trial

court to prepare a supplemental Rule 1925(a) opinion addressing all properly

preserved issues. We directed the Commonwealth to file a supplemental brief

within 30 days of receipt of the court’s supplemental opinion; Appellee would

have 30 days thereafter to file a responsive supplemental brief. The trial court

filed its supplemental Rule 1925(a) opinion on January 30, 2023. Although

the Commonwealth did not file a supplemental brief in response to the trial

court’s supplemental opinion, its principal brief addresses the issues raised,

so we will consider the merits of the Commonwealth’s appeal.

The Commonwealth raises four issues for our review:

I. Whether the trial court abused its discretion in disallowing

testimony regarding ownership of the firearm at issue,

specifically, testimony that the firearm at issue belonged to

an individual who had reported the firearm stolen, where

the defendant was charged with 18 Pa.C.S.A. § 6105 and

the only other individual in the car was not a person not to

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possess a firearm.

II. Whether the [c]ourt erred in not permitting the

Commonwealth to admit, under 225 Pa. Code 902(4)

(pertaining to self-authenticating document), a Maryland

Court Docket Sheet Summary for [Appellee’s] prior

conviction in Maryland where the document was certified by

the clerk of courts of Frederick County, Maryland.

III. Whether the [c]ourt abused its discretion in disallowing

National Crime Information Center (NCIC) criminal history

reports under 42 Pa. C.S.A. § 6108.

IV. Whether the [c]ourt abused its discretion in swearing in

the jury after the Commonwealth notified the [c]ourt on the

record that it intended to seek an immediate interlocutory

appeal under Pennsylvania Rule of Appellate Procedure 311.

(Commonwealth’s Brief at 4-5).

In its first issue, the Commonwealth argues that the trial court abused

its discretion by granting Appellee’s motion in limine to prohibit the

Commonwealth from calling as a witness the owner of the firearm recovered

from the vehicle. The Commonwealth claims that the fact that the firearm

was stolen was crucial to its case of constructive possession where it was

attempting to prove that Appellee possessed the firearm rather than Mr.

Riddick, the driver of the vehicle. The Commonwealth asserts that because

Mr. Riddick was not prohibited from purchasing a firearm, the fact that this

firearm was stolen makes it more likely that Appellee was the individual who

possessed it, because as a result of prior convictions, he would have been

prohibited from purchasing a firearm. The Commonwealth insists that this

evidence would not unfairly prejudice Appellee. We disagree.

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Our standard of review of a trial court’s admission or exclusion of

evidence is well established and very narrow. When an appellant challenges

the ruling on a motion in limine, our scope of review is limited to the relevant

pretrial hearing transcripts. Commonwealth v. Mattis, 252 A.3d 650, 654

(Pa.Super. 2021). In conducting our review, we apply an abuse-of-discretion

standard of review. Commonwealth v. Moser, 999 A.2d 602, 605

(Pa.Super. 2010), appeal denied, 610 Pa. 595, 20 A.3d 485 (2011) (citation

omitted). The admissibility of evidence is left to the sound discretion of the

trial court, and a trial court’s ruling regarding the admission of 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. Id. Our scope of review in cases where the

trial court explains the basis for its evidentiary ruling is limited to an

examination of the stated reason. Commonwealth v. Stephens, 74 A.3d

1034, 1037 (Pa.Super. 2013). “We must also be mindful that a discretionary

ruling cannot be overturned simply because a reviewing court disagrees with

the trial court’s conclusion.” Commonwealth v. O’Brien, 836 A.2d 966, 968

(Pa.Super. 2003), appeal denied, 577 Pa. 695, 845 A.2d 817 (2004).

Evidence is generally admissible if it is relevant, meaning that it is

probative of a material issue, and if the probative value is not outweighed by

“unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 403;

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see also Pa.R.E. 401, 402. “‘[U]nfair prejudice’ means a tendency to suggest

decision on an improper basis or to divert the jury’s attention away from its

duty of weighing the evidence impartially.” Commonwealth v. Hairston,

624 Pa. 143, 159, 84 A.3d 657, 666 (2014), cert. denied, 574 U.S. 863, 135

S.Ct. 164, 190 L.Ed.2d 118 (2014) (quoting Pa.R.E. 403, Comment).

Here, the trial court explained:

In this case, to introduce testimony that the firearm was

stolen introduces the same prejudice in regard to other

criminal acts that the severance excluded. Furthermore the

Commonwealth’s theory invites assumption and speculation

that is outside the proper function of the jury. The jury

might speculate according to the Commonwealth’s theory,

but they might assume that the driver is a good person and

conclude that [Appellee] is a bad person, and make a

decision on that basis rather than upon the

Commonwealth’s proof of the elements of the crime.

[Appellee] will stand separate trial for receiving stolen

property. The testimony is properly admitted at that trial,

where it is part of the Commonwealth’s required proof of the

elements of receiving stolen property, but not in this trial,

where it merely serves to smear [Appellee] with a

speculative theory that the gun did not belong to the driver

merely because he had not yet ever been convicted of a

crime which would make him a person not to possess a

firearm.

As counsel for [Appellee] said, “…they are getting evidence

that the gun was stolen to try to back door to say he must

have possessed it because it was a stolen gun and

somebody’s guilty of stealing the gun or something that

tends to incriminate him and (the codefendant) for

something they are not being tried for this time.” (N.T. Trial

at 4).

After its analysis, the court concluded the probative value of

the allegation that the firearm was stolen or belonged to

another person was outweighed by danger of inuring unfair

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prejudice to [Appellee] or misleading the jury about what

issue was at trial. The court fairly excluded this testimony

on the grounds of the rule of evidence barring prejudicial

testimony and testimony that invites the jury to speculate

improperly.

(Trial Court Opinion at 8-9) (citation formatting provided).

Given our deferential standard of review, we accept the trial court’s

reasoning that the probative value of the proffered evidence that the firearm

was stolen or belonged to another person was outweighed by the danger of

unfair prejudice to Appellee and the danger of misleading the jury about what

issue was at trial. See O’Brien, supra; Moser, supra. Therefore, the

Commonwealth’s first issue on appeal merits no relief.

In its second issue, the Commonwealth argues that the trial court

abused its discretion in not permitting a case summary report from Maryland,

which set forth Appellee’s prior conviction, to be admitted under Pennsylvania

Rule of Evidence 902(4). The Commonwealth claims that the document in

question is a certified copy of a record filed in the Circuit Court of Frederick

County, Maryland, and contains a “stamp-signature stating: TRUE COPY TEST

– Sandra K. Dalton, CLERK.” (Commonwealth’s Brief at 21). The

Commonwealth insists this is sufficient to establish the document as a certified

record, and a copy of a publicly filed document which should be self-

authenticating and admissible under the language of Rule 902(4). We agree

with the Commonwealth’s position.

In order for a document to be admissible as evidence it must be

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authenticated and it must be relevant. See Pa.R.E. 901(a) (providing that

“[u]nless stipulated, to satisfy the requirement of authenticating or identifying

an item of evidence, the proponent must produce evidence sufficient to

support a finding that the item is what the proponent claims it is”). Under

Pennsylvania Rule of Evidence 902, some types of documents do not require

extrinsic evidence of authenticity to be admitted because they are self-

authenticating. Rule 902 states, in pertinent part:

Rule 902. Evidence That is Self-Authenticating

The following items of evidence are self-authenticating; they

require no extrinsic evidence of authenticity in order to be

admitted:

(1) Domestic Public Documents That Are Sealed and

Signed. A document that bears:

(A) a seal purporting to be that of the United States; any

state, district, commonwealth,…a political subdivision of any

of these entities; or a department, agency, or officer of any

entity named above; and

(B) a signature purporting to be an execution or attestation.

(2) Domestic Public Documents That Are Not Sealed

But Are Signed and Certified. A document that bears no

seal if:

(A) it bears the signature of an officer or employee of an

entity named in Rule 902(1)(A); and

(B) another public officer who has a seal and official duties

within that same entity certifies under seal—or its

equivalent—that the signer has the official capacity and that

the signature is genuine.

* * *

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(4) Certified Copies of Public Records. A copy of an

official record—or a copy of a document that was recorded

or filed in a public office as authorized by law—if the copy is

certified as correct by:

(A) the custodian or another person authorized to make the

certification; or

(B) a certificate that complies with Rule 902(1), (2), or (3),

a statute or a rule prescribed by the Supreme Court.

A certificate required by paragraph (4)(B) may include a

handwritten signature, a copy of a handwritten signature, a

computer generated signature, or a signature created,

transmitted, received, or stored by electronic means, by the

signer or by someone with the signer’s authorization. A seal

may, but need not, be raised.

Pa.R.E. 902(1), (2), (4).

In Commonwealth v. Chapman, No. 671 MDA 2019, 2019 WL

7174581 (Pa.Super. Dec. 24, 2019) (unpublished memorandum),2 this Court

considered the applicability of Rule 902(4). There, the trial court found that

a copy of the defendant’s out-of-state prior conviction record was self-

authenticating under Rule 902(4). On appeal, this Court concluded that the

“certified conviction record is a certified copy, obtained from the New Jersey

Superior Court, and contains a certification by the deputy clerk of the New

Jersey Superior Court.” Id. at *2. Therefore, we held that the “certified

conviction record is self-authenticating, and the trial court did not err in

admitting it as evidence.” Id.

____________________________________________

2See Pa.R.A.P. 126(b) (explaining that we may rely on unpublished decisions

of this Court filed after May 1, 2019 for their persuasive value).

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Here, the Commonwealth sought to admit a copy of Appellee’s out-of-

state prior conviction record. The document is a public record, and the copy

that was sought to be introduced included a stamped signature from the

records clerk certifying that it was a true copy. Accordingly, we agree with

the Commonwealth that the document qualified as self-authenticating under

Rule 902(4). See Pa.R.E. 902(4); Chapman, supra. Therefore, because the

document was relevant and authentic, and there was no other rule of evidence

barring its admission, the trial court erred in precluding the Commonwealth

from admitting the document.

In its third issue, the Commonwealth argues that the trial court erred in

prohibiting the Commonwealth from introducing printouts of Appellee’s

criminal history record from the NCIC. The Commonwealth claims the NCIC

record should have been permitted as a business record under 42 Pa.C.S.A. §

6108, or under the business record exception to the rule against hearsay, set

forth at Pennsylvania Rule of Evidence 803(6). The Commonwealth asserts

that the evidence fell under the business record exception because Trooper

Hayes, who gathered the information from Appellee and generated the report,

was going to testify as to what the NCIC is, how it operates, and how reports

are generated. Therefore, the Commonwealth insists the trial court abused

its discretion in precluding the report.

Nevertheless, we are unable to conduct a meaningful review of this issue

because the NCIC report in question is not a part of the certified record. We

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may not review that which an appellant, despite bearing the burden to so

include, has failed to remit within the certified record. See Commonwealth

v. Powell, 598 Pa. 224, 956 A.2d 406 (2008) (explaining that appellate court

is limited to only those facts that have been certified in record on appeal and

reiterating that Rules of Appellate Procedure place burden on appellant to

ensure that record contains what is necessary to effectuate appellate review).

Without being able to review the NCIC report itself, we cannot meaningfully

assess whether the report should have been admitted as a business record.

As such, the Commonwealth is not entitled to relief on this issue.

In its last issue, the Commonwealth argues that the trial court erred in

swearing in the jury after the district attorney notified the court that it would

be filing a notice of appeal under Rule 311. Although the Commonwealth

asserts that the trial court abused its discretion in this regard, the

Commonwealth does not request any specific relief from this Court. (See

Commonwealth’s Brief at 26-30). Given that the court discontinued the trial

after the Commonwealth subsequently filed its written notice of appeal, we

deem this issue moot. See Commonwealth v. Nava, 966 A.2d 630

(Pa.Super. 2009) (stating issue before court is moot if in ruling upon issue

court cannot enter order that has any legal force or effect). Accordingly, we

affirm in part, reverse in part, and remand for further proceedings.

Order affirmed in part and reversed in part. Case remanded for further

proceedings. Jurisdiction is relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/14/2023

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