Com. v. Stevenson, R.

J-A11001-22


 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 RAHEEM STEVENSON                         :
                                          :
                    Appellant             :   No. 1157 EDA 2021

        Appeal from the Judgment of Sentence Entered April 1, 2021
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0000724-2018


BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY BOWES, J.:                       FILED SEPTEMBER 12, 2024

      Raheem Stevenson appeals from the judgment of sentence of eight to

sixteen years of imprisonment followed by ten years of probation, imposed

after a jury convicted him of two counts of robbery and one count each of

burglary and criminal conspiracy. He assails the trial court’s admission of a

prior burglary conviction. Consistent with the Supreme Court of the United

States’ decision in Ohler v. United States, 529 U.S. 753 (2000), we

concluded upon initial review that Appellant forfeited his ability to challenge

the court’s ruling when he introduced evidence of the conviction during his

own testimony. Our Supreme Court, after deciding to adopt the Ohler dissent

as the law of Pennsylvania, reversed and remanded the matter to this Court

for consideration of the merits of Appellant’s evidentiary challenge.    Upon

conducting this review, we affirm.
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     Our Supreme Court provided the following summary of the facts

underlying Appellant’s charges:

     On December 3, 2017, Yuguang Lin (Lin) and Ruan Katie Wenting
     (Wenting) parked their vehicle in the area of 3000 North Franklin
     Street in Philadelphia, where the couple lived in an apartment
     above a beer distributor. After Lin and Wenting exited the vehicle,
     three masked men approached them and took Lin’s cell phone and
     Wenting’s purse. The men then indicated that they knew the
     couple lived in the building and demanded entry. Once inside, the
     group proceeded to an office, where the three men filled black
     plastic bags with money from a cash register while also taking
     Newport cigarettes and Black & Mild cigars from the room. After
     threatening Wenting with a gun, the men fled.

     Wenting and Lin called police, who tracked Lin’s stolen cell phone
     to a parked vehicle. Upon approaching the vehicle, an officer
     spotted a purse lying in the street under the passenger side.
     Inside the vehicle, the police found Shaquan Lewis (Lewis) in the
     driver’s seat and Raheem Stevenson (Appellant) in the front
     passenger seat. Police also located a black plastic bag on the floor
     between Appellant’s feet, as well as Newport cigarettes and Black
     & Mild cigars strewn about the center console between Lewis and
     Appellant. After directing Appellant to exit the vehicle, police
     additionally noticed that Appellant was sitting next to a black
     flashlight taser leaning against the center console and on top of a
     red wallet, which Wenting identified along with the purse as
     belonging to her. Upon further investigation and the execution of
     a search warrant, police also discovered, inter alia, Lin’s cell
     phone, a ski mask, and clothing consistent with the victims’
     description of Appellant.

Commonwealth v. Stevenson (“Stevenson II”), ___ A.3d ___, 2024 WL

3490768, at *1 (Pa. July 22, 2024) (cleaned up).

     Appellant was charged and proceeded to a jury trial.         The victims

testified to the details of the robbery but could identify neither Lewis nor

Appellant as one of the masked robbers. Following the Commonwealth’s case-

in-chief, Appellant elected to testify in his own defense.   Before doing so,

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Appellant’s counsel orally moved in limine to prevent the Commonwealth from

asking Appellant about a 2005 burglary conviction. The following exchange

occurred after the court conducted a colloquy regarding Appellant’s decision

to testify:

      [Trial Counsel]:   Just very briefly. My client, back in 2005, had a
                         guilty plea to the charge of burglary.
              ....

      [Trial Counsel]:   -- I would move to preclude that from coming
                         in. I recognize it’s probably crimen falsi, but
                         just because it’s so remote in time how old it is.

      The Court:         Okay. Do you want to say anything?

      [Commonwealth]: Your Honor, given the nature of the charges, I
                     believe he was on – I forgot what the
                     confinement was – I would ask that it be
                     admissible.

      The Court:         All right. It’s admissible. It will be allowed.

N.T. Trial, 3/12/20, at 70-71.

      Appellant took the stand and testified that he did not participate in the

robbery in the case sub judice but was merely a passenger in the car where

the items were found. He also admitted to owning a ski mask, which was

recovered from the trunk of the vehicle, and which contained his DNA.

Considering the adverse evidentiary ruling as to the motion in limine, counsel

made the strategic decision to introduce the 2005 conviction in the following

manner at the conclusion of Appellant’s direct examination:

      [Trial Counsel]:   [Appellant], before I turn the floor over to the
                         district attorney, back in 2005 – I know that was
                         some time ago – but back in 2005, you had a

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                         prior matter where you pled guilty and
                         sentenced on a burglary case; is that correct?

      [Appellant]:       Yes.

Id. at 84.   The Commonwealth did not inquire about the 2005 conviction

during cross-examination or discuss it in closing argument. The trial court

provided a limiting instruction during its charge to the jury regarding how it

could consider the prior conviction.

      Appellant was ultimately convicted         and sentenced as       indicated

hereinabove.    He filed a post-sentence motion challenging, among other

things, the court’s ruling on the motion in limine. The court denied the motion

and Appellant filed the instant timely appeal. He presents the following issues

for our consideration:

      Did the trial court abuse its discretion when it denied [Appellant’s]
      motion in limine to preclude his 2005 burglary conviction, from
      which he was released from confinement thirteen years before
      trial, where:

         a) The prosecution failed to provide advance written notice
            of its intent to use the conviction and could not satisfy its
            prosecutorial burden of articulating a need to use it; and,

         b) The trial court admitted the conviction without first
            conducting Pa.R.E. 609(b)’s mandatory balancing test[?]

Appellant’s brief at 3 (emphases omitted, citation altered).

      As noted at the outset, this Court initially concluded that Appellant had

forfeited his challenge to the trial court’s ruling. Stated simply, we held that

a defendant “who receives an adverse evidentiary ruling can either preserve

the issue for appeal by lodging an objection to the introduction of the


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evidence, or he can make a strategic choice to forfeit the objection and

preemptively   introduce     the   evidence   himself.   He   cannot   do   both

simultaneously.” Commonwealth v. Stevenson (“Stevenson I”), 287 A.3d

903, 906 (Pa.Super. 2022) (footnote omitted), rev’d and remanded,

Stevenson II, 2024 WL 3490768. Our decision was premised in part upon

the majority holding in Ohler that under federal law, “a defendant who

preemptively introduces evidence of a prior conviction on direct examination

may not on appeal claim that the admission of such evidence was error.”

Ohler, 529 U.S. at 760; see also Stevenson I, 287 A.3d at 906 (citing Ohler

and noting that our analysis in Stevenson I was “consistent with well-

established federal law”).

      On appeal to our Supreme Court, the esteemed justices unanimously

concluded, as a matter of first impression, that the federal rule announced by

the Supreme Court of the United States does not apply in Pennsylvania:

      [W]e join the chorus of state courts that have rejected Ohler’s
      majority ruling and hold that, consistent with the Ohler dissent
      and Pennsylvania law, a defendant who testifies about his
      convictions on direct examination after unsuccessfully litigating a
      motion in limine to exclude those convictions has not forfeited the
      opportunity to appeal the admissibility of those prior convictions
      on appeal.

Stevenson II, 2024 WL 3490768, at *8 (footnote omitted). Accordingly, it

reversed our judgment and remanded for us to consider the merits of

Appellant’s claim.




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      This Court reviews evidentiary challenges for an abuse of discretion.

See Commonwealth v. Lawrence, 313 A.3d 265, 275 (Pa.Super. 2024).

An abuse of discretion is “not merely an error of judgment, but rather the

overriding or misapplication of the law or the exercise of judgment that is

manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality,

as shown by the evidence of record.” Id. (cleaned up).

      Appellant assails the court’s admission of his 2005 burglary conviction

at his 2020 trial. The Pennsylvania Rules of Evidence permit the admission of

crimen falsi convictions to impeach the credibility of the individual testifying,

though it generally limits admissibility to those offenses occurring within the

ten years preceding the testimony:

      (a) In General. For the purpose of attacking the credibility of
      any witness, evidence that the witness has been convicted of a
      crime, whether by verdict or by plea of guilty or nolo contendere,
      must be admitted if it involved dishonesty or false statement.

      (b) Limit on Using the Evidence After 10 Years. This
      subdivision (b) applies if more than 10 years have passed since
      the witness’s conviction or release from confinement for it,
      whichever is later. Evidence of the conviction is admissible only
      if:

            (1) its probative value substantially outweighs its prejudicial
            effect; and

            (2) the proponent gives an adverse party reasonable written
            notice of the intent to use it so that the party has a fair
            opportunity to contest its use.

Pa.R.E. 609.




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      Appellant was released from incarceration for the 2005 conviction in

2007. See Trial Court Opinion, 11/1/21, at 4 n.6. Thus, more than ten years

had passed before his testimony in 2020. Accordingly, the trial court was

required to consider the following factors before admitting evidence of the

burglary conviction:

      1) the degree to which the commission of the prior offense reflects
      upon the veracity of the defendant-witness; 2) the likelihood, in
      view of the nature and extent of the prior record, that it would
      have a greater tendency to smear the character of the defendant
      and suggest a propensity to commit the crime for which he stands
      charged, rather than provide a legitimate reason for discrediting
      him as an untruthful person; 3) the age and circumstances of the
      defendant; 4) the strength of the prosecution’s case and the
      prosecution’s need to resort to this evidence as compared with the
      availability to the defense of other witnesses through which its
      version of the events surrounding the incident can be presented;
      and 5) the existence of alternative means of attacking the
      defendant’s credibility.

Lawrence, 313 A.3d at 275 (cleaned up). Notably, granting the trial court

discretion to conduct this test “allows for flexibility in balancing factors,

according to the circumstances.” Commonwealth v. Hoover, 107 A.3d 723,

730 (Pa. 2014). In that regard, our review does not permit us to balance the

factors anew; rather, the operative “question is whether the trial court’s

balancing fell within its discretionary authority.” Id. at 729.

      In its opinion to this Court, the trial court detailed how examination of

the five factors favored admitting the conviction.    See Trial Court Opinion,

11/1/21, at 5-7. Alternatively, it contended that any error in permitting the

testimony was harmless because Appellant suffered minimal prejudice. Id. at


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7. The court premised this conclusion upon Appellant’s choice to introduce

the conviction himself, the Commonwealth’s decision not to reference it

thereafter, and the presumption that the jury followed the court’s limiting

instruction. Id. at 8.

       As evidenced by our procedural summary, the trial court did not

explicitly engage in this five-part analysis on the record before admitting the

2005 conviction.         See N.T. Trial, 3/12/20, at 70-71.      Further, the

Commonwealth (1) failed to provide notice of its intent to introduce the

conviction,1 (2) did not present any evidence or meaningful argument in

support of the five factors, and (3) was completely unaware of the sentence

Appellant had received for that conviction.      The most the Commonwealth

proffered was an assertion that the conviction was admissible “given the



____________________________________________


1 Appellant waived his challenge to the Commonwealth’s lack of notice by not

objecting to it at the time of the motion in limine. See Pa.R.A.P. 302(a)
(“Issues not raised in the trial court are waived and cannot be raised for the
first time on appeal.”); see also Commonwealth v. Baumhammers, 960
A.2d 59, 73 (Pa. 2008) (explaining the well-settled rule that “issues are
preserved when objections are made timely to the error or offense” (cleaned
up)). Even if not waived, Appellant had a full opportunity to contest the
admissibility of the conviction. Namely, counsel for Appellant was the one to
make the motion in limine and argue against admission of the fact of the
conviction. Therefore, Appellant was not surprised by its potential admission
and was not prejudiced by the Commonwealth’s technical violation of Rule
609(b)(2). See Commonwealth v. Palo, 24 A.3d 1050, 1058 (Pa.Super.
2011) (finding that Palo “cannot reasonably maintain that he lacked a fair
opportunity to contest the use of [crimen falsi] evidence in what was a fairly
straightforward case, particularly where the record establishes that the trial
court conducted an in-camera hearing in which defense counsel gave thorough
argument as to why such evidence should be excluded”).

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nature of the charges[.]”     N.T. Trial, 3/12/20, at 70.     Based upon these

failings, Appellant contends that the court erred in admitting the 2005

conviction.    See Appellant’s brief at 17.         He does not assess the

reasonableness of the balancing conducted in the court’s Rule 1925(a)

opinion, insisting instead that the “court’s after-the-fact attempt to comply

with Rule 609(b)(1) . . . does not cure its reversible error.” Id. at 15 (citation

omitted, emphasis in original).

      We disagree with Appellant’s characterization.      Despite the dearth of

argument presented by the Commonwealth, the trial court nonetheless was

able to conduct the requisite analysis because it could assess all five factors

at the time of the motion. See Lawrence, 313 A.3d at 275. Unlike a motion

in limine to admit a Rule 609(b) crimen falsi conviction offered before trial

begins, the court here had the benefit of hearing the Commonwealth’s entire

case before having to rule on the admissibility of Appellant’s prior conviction.

Thus, while a contemporaneous analysis of the five factors is wanting in the

certified record, we are not persuaded by Appellant’s argument that the trial

court failed to apply the balancing test before ruling on his motion in limine.

Rather, it is evident from the recounting and explanation offered in the trial

court’s Rule 1925(a) opinion that it conducted the requisite analysis sub




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silentio based upon its own firsthand observations from trial before ruling on

the motion in limine.2 See Trial Court Opinion, 11/1/21, at 5-7.

       Specifically, the trial court made the following findings as to each factor.

First, the “burglary directly reflect[ed] upon the veracity and credibility” of

Appellant’s testimony. Id. at 5. Second, the 2005 burglary “did not have a

tendency to smear Appellant’s character or suggest a propensity to commit a

particular crime” because it was a single conviction and the court provided a

limiting instruction.       Id. at 6; see also Hoover, 107 A.3d at 730

(acknowledging the increased likelihood of suggesting propensity where the

prior crime is identical to one for which the defendant is on trial but

highlighting that the danger is lessened where there is only one such prior

crime and the court properly instructs the jury on how to consider the crimen

falsi evidence). Third, Appellant was an adult when he was convicted of the

earlier burglary.      Fourth, the Commonwealth’s case was premised upon

circumstantial evidence and Appellant was the only witness to testify

regarding his connection to the stolen items. Finally, regarding the fifth factor,

“a review of the record does not show an adequate alternative ground for

impeaching Appellant.” Trial Court Opinion, 11/1/21, at 7.

       Based upon the foregoing, we are satisfied that the trial court conducted

the requisite balancing test before deeming the 2005 conviction admissible,


____________________________________________


2 Certainly, it would be beneficial for the trial court to supply its reasoning at

the time of ruling. However, the Rules of Evidence do not require it.

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and we discern no abuse of discretion in its analysis. See Hoover, 107 A.3d

at 730 (reiterating that the question before this Court in reviewing the

admissibility of a Rule 609(b) conviction “is not how [we] might balance all of

these factors, but rather, whether the trial court’s balancing so departs from

what is reasonable that it can be set aside”). Accordingly, we affirm.

      Judgment of sentence affirmed.




Date: 9/12/2024




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