[J-19-2014] IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA, Appellee

v.

DUANE JEMISON, JR., Appellant : : : : : : : : : : : No. 17 WAP 2013 Appeal from the Order of the Superior Court entered January 4, 2013 at No. 1588 WDA 2011, affirming the Judgment of Sentence of the Court of Common Pleas of Allegheny County entered August 31, 2011 at No. CP-02-CR-0009708-2010. ARGUED: April 8, 2014

DISSENTING OPINION

MR. JUSTICE BAER DECIDED: August 18, 2014 Appellant, Duane Jemison, Jr., had previously been convicted for his part in a 2008 robbery (hereinafter, the 2008 robbery convict ion). A felony, the 2008 robbery conviction also rendered Appellant ineligible to po ssess a firearm, pursuant to 18 Pa.C.S. § 6105. 1 In the early morning hours of May 16, 2010, Pittsb urgh Police observed a vehicle parked illegally in a handicapped parking space. A n officer checked the car’s license plate on his computer, and learned that the vehicle had been stolen a few days earlier. Several officers arrived on scene and, when Appella nt entered the car and began

1 Pursuant to Section 6105(a), “[a] person who has been convicted of an offense enumerated in subsection (b), within or without thi s Commonwealth, regardless of the length of sentence . . . shall not possess, use, co ntrol, sell, transfer or manufacture or obtain a license to possess, use, control, sell, tr ansfer or manufacture a firearm in this Commonwealth.” 18 Pa.C.S. § 6105(a). Subsection ( b) enumerates thirty-eight different crimes as disqualifying offenses, of whic h robbery is included.[J-19-2014] - 2

backing out of the parking space, converged upon hi m. While Appellant initially complied with the officers’ commands to keep his ha nds visible and exit the car, he eventually reached down to the floorboard, and an o fficer observed him grab for a firearm. The officers reacted immediately, pulled Appellant out of the car, and arrested him. While it was later determined that Appellant had no involvement in the theft of the vehicle, he was charged with, inter alia , one count of unlawful possession of a firearm because of the 2008 robbery conviction. Prior to the subsequent trial, Appellant offered t o stipulate that he was a person prohibited from possessing a firearm, thus keeping the 2008 robbery conviction from the jury and limiting the question presented to the jur y to whether he in fact possessed a gun when confronted by police in 2010. The Commonw ealth refused to accept the stipulation, arguing that the 2008 robbery convicti on was a necessary component of proving the prior, enumerated offense element of th e Section 6105 charge; and, because the Commonwealth is generally permitted to prove the elements of a crime with any proper evidence, the state should be permi tted to enter the record of the 2008 robbery conviction into evidence. See Commonwealth v. Stanley, 446 A.2d 583 (Pa. 1982). Appellant countered that, pursuant to the United S tates Supreme Court’s decision in Old Chief v. United States, 519 U.S. 17 2 (1997), the Commonwealth should be compelled to accept the stipulation because the name of the disqualifying offense (the 2008 robbery conviction) risks unfair prejudic e to Appellant, which outweighs the probative value of that conviction. Id. at 180. R easoning that Stanley was the law of the Commonwealth and Old Chief, being a matter of f ederal evidentiary law was not controlling, the trial court agreed with the Common wealth and permitted the jury to learn[J-19-2014] - 3

of the robbery conviction. 2 At the conclusion of the trial, the jury convicte d Appellant of violating Section 6105, and the court sentenced App ellant to a term of imprisonment of five to ten years. On appeal, the Superior Court a ffirmed, and this Court accepted

review to determine whether the Commonwealth should no longer be permitted to enter into evidence the specific disqualifying offense wh en the defendant is willing to stipulate that he is a person prohibited from possessing a fi rearm because of a prior conviction. In essence, resolution of this issue encompasses t he singular question of whether this Court should adopt the decision in Old Chief as the law of Pennsylvania, and thereby, for purposes of Section 6105 cases, ab rogate the rule in Stanley that the Commonwealth may introduce the specifics of the dis qualifying offense to the jury. In that light, no party disputes that the evidence reg arding the robbery conviction is relevant. Rather, the controversy concerns whether the probative value of the details of the 2008 robbery conviction is outweighed by a dang er of unfair prejudice, pursuant to Pa.R.E. 403. The High Court in Old Chief, answered this in the affirmative, albeit under F.R.E. 403. For the reasons that follow, I would a dopt the reasoning of Old Chief, apply it under Pa.R.E. 403, find that the trial court abu sed its discretion in not accepting Appellant’s proffered stipulation, and remand for a new trial. In full, Pa.R.E. 403 and the official comments the reto provide as follows:

The court may exclude relevant evidence if its prob ative value is outweighed by a danger of one or more of t he following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

2 The court subsequently instructed the jury that t he robbery conviction could be used only as evidence supporting the element of the Section 6105 charge that Appellant had been convicted of a subsection (b) disqualifyin g offense, and not as evidence of Appellant’s propensity to commit a crime.[J-19-2014] - 4 Comment: Pa.R.E. 403 differs from F.R.E. 403. The Federal Rule provides that relevant evidence may be exclude d if its probative value is “substantially outweighed.” Pa. R.E. 403 eliminates the word “substantially” to conform the text of the rule more closely to Pennsylvania law. See Commonwe alth v. Boyle, 447 A.2d 250 (Pa. 1982). Comment: “Unfair 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 imparti ally.

Pa.R.E. 403 & cmts. As noted above, and Pa.R.E. 40 3 notwithstanding, the Commonwealth may utilize any appropriate evidence n ecessary to prove the elements of a crime and is not required to accept the defend ant’s tendered stipulations. Stanley,

446 A.2d at 588. 3 Old Chief would alter that landscape, but is not b inding on this Court, given that it decided the identical issue solely as a matter of f ederal evidentiary law. In Old Chief, the defendant, a Native American, had previously be en convicted of federal aggravated assault on Indian land, which disqualified him fede rally from possessing a firearm pursuant to 18 U.S.C. § 922(g)(1), as the assault w as a crime punishable by imprisonment exceeding one year. 4 In a subsequent trial for illegal possession of a firearm, the defendant offered to stipulate that he had been convicted of a crime punishable by at least one year in prison and was t hus prohibited from possessing a

3 Indeed, similar to the appeal at bar, the defenda nt in Stanley attempted to stipulate that he had previously been convicted of a crime of violence (which was the disqualifying standard of a previous iteration of S ection 6105), the Commonwealth refused to so stipulate, and the appellate courts a ffirmed the Commonwealth’s right to decline the admission.

4 Specifically, 18 U.S.C. § 922(g)(1) prohibits “an y person who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . [from] ship[ping] or transport[ing] in interstate o r foreign commerce, or possess[ing] in or affecting commerce, any firearm or ammunition; or [ receiving] any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”[J-19-2014] - 5

firearm for federal purposes. Consistent with this offer, the defendant further sought to preclude the prosecution from introducing the speci fics of his prior aggravated assault conviction. The government refused to so stipulate , the district court countenanced that refusal, and the government subsequently informed t he jury that the defendant had previously been convicted of assault causing seriou s bodily injury resulting in a sentence of five years of imprisonment. On appeal to the United States Supreme Court, Just ice Souter, writing for a 5-4 majority, first determined that the name and partic ulars of the disqualifying offense were relevant to proving the defendant’s violation of Se ction 922(g)(1). The Court thus turned to F.R.E. 403, which permits a court to exclude rel evant evidence if its probative value is substantially outweighed by a danger of unfair prej udice. 5 The Court noted that unfair prejudice, as utilized within F.R.E. 403, speaks to the potentiality that otherwise relevant evidence will entice a jury to find a defendant gui lty on grounds different from those

needed to convict the defendant of the actual offen se charged. Old Chief, 519 U.S. at 180. This danger of unfair prejudice includes the general use of a defendant’s earlier bad act as evidence of bad character, thereby incre asing the potentiality that the defendant will be found guilty of the crime now cha rged. Id. Accordingly, the High Court opined that if alternative evidence had subst antially equivalent or greater probative value but a lesser danger of unfair preju dice, then the trial court should exclude the evidence that presents the unfair, prej udicial risk. Id. at 182-83. After this review of the law, the Supreme Court co ncluded that the district court had abused its discretion by permitting the governm ent to place into the record the

5 As will be expounded upon, infra, the federal sta ndard of “substantially outweighed by a danger of unfair prejudice” is more exacting than the Pennsylvania benchmark of “outweighed by a danger of unfair prej udice.” See also Pa.R.E. 403 cmt., supra pp.3-4.[J-19-2014] - 6

details of the defendant’s prior assault conviction because such evidence carried an inherent risk of unfair prejudice by tempting the j ury into convicting the defendant based upon his bad character. Id. at 185. Conversely, t he Court observed that the defendant’s offered stipulation -- that he had been convicted of a crime subject to at least one year in prison -- provided the government all it needed to prove that element of 18 U.S.C. § 922(g)(1) in a much less intrusive a nd prejudicial manner. Id. at 191. While the High Court recognized that the government is normally entitled to prove its case in the manner it chooses, or, more precisely, that the accused may not stipulate his way out of presentation of the government’s cas e, that rule has no force or application when it only goes to prove a defendant’ s legal status, such as his ability to possess a firearm legally. Id. at 187, 190. Simpl y put, in the Supreme Court’s view, all the jury needed to know was that the prior convicti on had disqualified the defendant from possessing a firearm, and anything else had no effect other than creating substantial danger of unfair prejudice. At first blush, the appeal currently before this C ourt would seem to be on all fours with Old Chief: Appellant had a prior, disqualifyin g conviction; he offered to stipulate to the fact that he was a disqualified felon; and all of the dangers attendant to utilizing the prior conviction in court as identified by the High Court in Old Chief are implicated here. The Majority herein, however, has latched onto a si ngular statement by the Supreme Court in Old Chief regarding 18 U.S.C. § 922(g)(1): “[t]he statutory language in which the prior-conviction requirement is couched shows n o congressional concern with the specific name or nature of the prior offense beyond what is necessary to place it within the broad category of qualifying felonies . . . .” Id. at 186, quoted in Maj. Slip Op. at 11. Accordingly, the Majority distinguishes this case f rom Old Chief, given that the Pennsylvania General Assembly chose to specifically enumerate the names of the[J-19-2014] - 7

disqualifying offenses in 18 Pa.C.S. § 6105. In th is regard, the Majority cites with approval State v. Ball, 756 So.2d 275, 278 (La. 199 9), which held that “[b]ecause the Louisiana [disqualifying] statute defines the crime by specific enumerated prior offenses, contrary to the broad definition in the federal sta tute, Old Chief is distinguishable.” Respectfully, such distinguishment in my view elev ates form over substance. Whether a defendant stipulates to being a disqualif ied felon under a more general statute, or a disqualified felon under a specifical ly enumerated provision, “the name or nature of the prior offense generally carries a ris k of unfair prejudice to the defendant.” Old Chief, 519 U.S. at 185. Under this reasoning, the Supreme Court of Kansas, in examining a statute practically identical to Pennsy lvania’s Section 6105(a)(1), adopted Old Chief despite the disqualifying statute enumera ting specific offenses, reasoning:

In a firearm criminal possession case, what fact do es the State seek to establish by offering into evidence a defendant's prior record through a journal entry? The answer is the defendant's status as a prior convict ed felon. [The defendant] agreed to stipulate to prior convic ted felon status. We see no need to admit into evidence a jo urnal entry reflecting the type and nature of a prior con viction in order to prove that [the defendant] was a convicted felon.

State. v. Lee, 977 P.2d 263, 269 (Kan. 1999). 6 Given that both F.R.E. 403 and the Kansas equivalent exclude evidence based upon “unfa ir prejudice,” 7 the Kansas

6 See also State v. Murray, 169 P.3d 955, 972 (Haw. 2007) (recognizing “the potential for unfair prejudice to a defendant charg ed with a status offense if the jury knows ‘the name and nature’ of the previous offense s.”); Sams v. State, 688 N.E.2d 1323 (Ind. Ct. App. 1997) (adopting Old Chief and n oting that a defendant in a DUI case was prejudiced by the government placing into his e vidence defendant’s entire driving record, rather than accepting defendant’s proffered stipulation that his license was already suspended for life).[J-19-2014] - 8

Supreme Court agreed with the Old Chief majority th at unless the parties are disputing the substance of the prior conviction itself, the a dmission of the name and circumstances of the prior conviction can only serv e to prejudice the jury. Id. at 270.

The Kansas Court found that there were no “counterv ailing interests” to support the contrary in a legal status case. Id. The analysis of the Kansas Supreme Court is not on ly sound, but indeed has even more force when analyzed under Pa.R.E. 403. A s noted above, the Kansas and Federal rules regarding unfair prejudice only exclu de the evidence if the probative value of the evidence is “substantially outweighed” by th e danger of unfair prejudice. See K.R.E. 60-445; F.R.E. 403. The Pennsylvania counte rpart (Pa.R.E. 403), however, permits exclusion if the probative value is outweig hed by the danger of unfair prejudice, omitting the qualifying modifier “substantial.” In other words, the risk of unfair prejudice need not be as great in Pennsylvania. Yet, what co nstitutes unfair prejudice under both the Federal (and Kansas) and Pennsylvania rules is identical: the suggestion that the evidence presented may lead to a jury’s verdict bei ng upon some improper ground. 8 I recognize that neither iteration of Rule 403 wil l prohibit the entry of evidence proffered to give a defendant the ability to saniti ze otherwise harmful testimony when those facts are otherwise pertinent to the case at hand, or offered in furtherance of the

(Ncontinued) 7 Like F.R.E. 403, Kansas excludes “relevant eviden ce if its probative value is substantially outweighed by the danger of unfair pr ejudice.” Lee, 977 P.2d at 270 (citing K.S.A. 60-445).

8 Compare Pa.R.E. 403, cmt (“‘Unfair prejudice’ mea ns 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.”), with Old Chie f, 519 U.S. at 180 (defining “unfair prejudice” as used in F.R.E. 403 as the potentialit y of otherwise “relevant evidence to lure the fact-finder into declaring guilt on a grou nd different from proof specific to the offense charged.”).[J-19-2014] - 9

natural development of the offenses committed. See Old Chief, 519 U.S. at 187; Commonwealth v. Dillon, 925 A.2d 131, 141 (Pa. 2007 ). However, as both the U.S. Supreme Court in Old Chief and the Kansas Supreme C ourt in Lee recognized, these considerations have “virtually no application when the point at issue is a defendant's legal status.” Old Chief, 519 U.S. at 190; see als o Lee, 977 P.2d at 269-70. In these circumstances, if the defendant offers to stipulate to his status, the exclusion of certain other facts, such as the details of a prior crimina l conviction, is appropriate because the probative value of the evidence is maintained, but the danger of unfair prejudicial effect is reduced or eliminated. See Roger Park & Tom Lin inger, The New Wigmore. A Treatise on Evidence: Impeachment and Rehabilitatio n, § 3.4 (2014). Accordingly, in light of the cited precedent, with special emphasis on the U.S. Supreme Court decision in Old Chief, and the fact t he Pennsylvania evidentiary standard is less exacting than its Federal and Kans as counterparts, I would hold that the trial court abused its discretion in not accept ing Appellant’s proffered stipulation that he had previously committed an enumerated crime, wh ich therefore rendered him a person not to possess a firearm. I would further c onclude that the General Assembly’s enumeration of the specific disqualifying offenses in Section 6105(b) is of no moment to the analysis. Appellant’s admission that he, at on e time in the past, was convicted of a disqualifying offense satisfies that element of Sec tion 6105(a); the Commonwealth needs nothing more. Put differently, it establishe s his legal status as a disqualified, convicted felon, thus preserving the probative valu e of the evidence while reducing the danger of unfair prejudice that inherently is assoc iated with the prosecutor informing the jury that Appellant had previously been convicted o f robbery, the circumstances of the robbery, and if Appellant served any time in prison . Accord Old Chief, 519 U.S. at 190- 92. As the Majority reaches a contrary result, I r espectfully dissent.[J-19-2014] - 10 Mr. Chief Justice Castille, Mr. Justice Eakin, Mada me Justice Todd and Mr. Justice Stevens join the opinion.

Mr. Justice Saylor joins this dissenting opinion.