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
...
