[J-19-2014] 

IN THE SUPREME COURT OF PENNSYLVANIA 

WESTERN DISTRICT 

COMMONWEALTH OF PENNSYLVANIA,

 Appellee 

 v. 

DUANE JEMISON, JR., 

 Appellant 

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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 conviction). A felony, the 2008 robbery 

conviction also rendered Appellant ineligible to possess a firearm, pursuant to 18 

Pa.C.S. § 6105.1

 In the early morning hours of May 16, 2010, Pittsburgh Police observed a vehicle 

parked illegally in a handicapped parking space. An 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 Appellant 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 this Commonwealth, regardless of the 

length of sentence . . . shall not possess, use, control, sell, transfer or manufacture or 

obtain a license to possess, use, control, sell, transfer or manufacture a firearm in this 

Commonwealth.” 18 Pa.C.S. § 6105(a). Subsection (b) enumerates thirty-eight 

different crimes as disqualifying offenses, of which robbery is included. 
[J-19-2014] - 2 

backing out of the parking space, converged upon him. While Appellant initially 

complied with the officers’ commands to keep his hands visible and exit the car, he 

eventually reached down to the floorboard, and an officer 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 to 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 jury to whether he in fact possessed a 

gun when confronted by police in 2010. The Commonwealth refused to accept the 

stipulation, arguing that the 2008 robbery conviction was a necessary component of 

proving the prior, enumerated offense element of the 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 permitted 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 States Supreme Court’s 

decision in Old Chief v. United States, 519 U.S. 172 (1997), the Commonwealth should 

be compelled to accept the stipulation because the name of the disqualifying offense 

(the 2008 robbery conviction) risks unfair prejudice to Appellant, which outweighs the 

probative value of that conviction. Id. at 180. Reasoning that Stanley was the law of 

the Commonwealth and Old Chief, being a matter of federal evidentiary law was not 

controlling, the trial court agreed with the Commonwealth and permitted the jury to learn 
[J-19-2014] - 3 

of the robbery conviction.2

 At the conclusion of the trial, the jury convicted Appellant of 

violating Section 6105, and the court sentenced Appellant to a term of imprisonment of 

five to ten years. On appeal, the Superior Court affirmed, and this Court accepted 

review to determine whether the Commonwealth should no longer be permitted to enter 

into evidence the specific disqualifying offense when the defendant is willing to stipulate 

that he is a person prohibited from possessing a firearm because of a prior conviction. 

 In essence, resolution of this issue encompasses the 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, abrogate the rule in Stanley that the 

Commonwealth may introduce the specifics of the disqualifying offense to the jury. In 

that light, no party disputes that the evidence regarding 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 danger 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 adopt the reasoning of Old Chief, apply 

it under Pa.R.E. 403, find that the trial court abused 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 thereto provide as follows: 

The 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. 

 

2

 The court subsequently instructed the jury that the 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) disqualifying 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 excluded 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 Commonwealth 

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 impartially. 

Pa.R.E. 403 & cmts. As noted above, and Pa.R.E. 403 notwithstanding, the 

Commonwealth may utilize any appropriate evidence necessary to prove the elements 

of a crime and is not required to accept the defendant’s tendered stipulations. Stanley, 

446 A.2d at 588.3

 Old Chief would alter that landscape, but is not binding on this Court, given that it 

decided the identical issue solely as a matter of federal evidentiary law. In Old Chief, 

the defendant, a Native American, had previously been convicted of federal aggravated 

assault on Indian land, which disqualified him federally from possessing a firearm 

pursuant to 18 U.S.C. § 922(g)(1), as the assault was 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 thus prohibited from possessing a 

 

3

 Indeed, similar to the appeal at bar, the defendant 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 Section 6105), the Commonwealth 

refused to so stipulate, and the appellate courts affirmed the Commonwealth’s right to 

decline the admission. 

4

 Specifically, 18 U.S.C. § 922(g)(1) prohibits “any 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 or 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 specifics of his prior aggravated assault 

conviction. The government refused to so stipulate, the district court countenanced that 

refusal, and the government subsequently informed the jury that the defendant had 

previously been convicted of assault causing serious bodily injury resulting in a 

sentence of five years of imprisonment. 

 On appeal to the United States Supreme Court, Justice Souter, writing for a 5-4 

majority, first determined that the name and particulars of the disqualifying offense were 

relevant to proving the defendant’s violation of Section 922(g)(1). The Court thus turned 

to F.R.E. 403, which permits a court to exclude relevant evidence if its probative value is 

substantially outweighed by a danger of unfair prejudice.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 guilty on grounds different from those 

needed to convict the defendant of the actual offense 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 increasing the potentiality that the 

defendant will be found guilty of the crime now charged. Id. Accordingly, the High 

Court opined that if alternative evidence had substantially equivalent or greater 

probative value but a lesser danger of unfair prejudice, then the trial court should 

exclude the evidence that presents the unfair, prejudicial risk. Id. at 182-83. 

 After this review of the law, the Supreme Court concluded that the district court 

had abused its discretion by permitting the government to place into the record the 

 

5

 As will be expounded upon, infra, the federal standard of “substantially 

outweighed by a danger of unfair prejudice” is more exacting than the Pennsylvania 

benchmark of “outweighed by a danger of unfair prejudice.” 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 jury into convicting the defendant based 

upon his bad character. Id. at 185. Conversely, the 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 and 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 case, 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. Simply put, in the Supreme Court’s view, all 

the jury needed to know was that the prior conviction 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 Court would seem to be on all fours 

with Old Chief: Appellant had a prior, disqualifying 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 singular 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 no 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 from 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 this regard, the Majority cites with 

approval State v. Ball, 756 So.2d 275, 278 (La. 1999), 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 statute, Old Chief is distinguishable.” 

 Respectfully, such distinguishment in my view elevates form over substance. 

Whether a defendant stipulates to being a disqualified felon under a more general 

statute, or a disqualified felon under a specifically enumerated provision, “the name or 

nature of the prior offense generally carries a risk 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 Pennsylvania’s Section 6105(a)(1), adopted 

Old Chief despite the disqualifying statute enumerating specific offenses, reasoning: 

In a firearm criminal possession case, what fact does 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 convicted felon. 

[The defendant] agreed to stipulate to prior convicted felon 

status. We see no need to admit into evidence a journal 

entry reflecting the type and nature of a prior conviction 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 “unfair 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 charged with a status offense if the jury 

knows ‘the name and nature’ of the previous offenses.”); Sams v. State, 688 N.E.2d 

1323 (Ind. Ct. App. 1997) (adopting Old Chief and noting that a defendant in a DUI case 

was prejudiced by the government placing into his evidence 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 that unless the parties are disputing 

the substance of the prior conviction itself, the admission of the name and 

circumstances of the prior conviction can only serve to prejudice the jury. Id. at 270. 

The Kansas Court found that there were no “countervailing interests” to support the 

contrary in a legal status case. Id. 

 The analysis of the Kansas Supreme Court is not only sound, but indeed has 

even more force when analyzed under Pa.R.E. 403. As noted above, the Kansas and 

Federal rules regarding unfair prejudice only exclude the evidence if the probative value 

of the evidence is “substantially outweighed” by the danger of unfair prejudice. See 

K.R.E. 60-445; F.R.E. 403. The Pennsylvania counterpart (Pa.R.E. 403), however, 

permits exclusion if the probative value is outweighed 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 constitutes 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 being upon some improper ground.8

 I recognize that neither iteration of Rule 403 will prohibit the entry of evidence 

proffered to give a defendant the ability to sanitize 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 evidence if its probative value is 

substantially outweighed by the danger of unfair prejudice.” Lee, 977 P.2d at 270 (citing 

K.S.A. 60-445). 

8

 Compare Pa.R.E. 403, cmt (“‘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 impartially.”), with Old Chief, 519 U.S. at 180 (defining “unfair 

prejudice” as used in F.R.E. 403 as the potentiality of otherwise “relevant evidence to 

lure the fact-finder into declaring guilt on a ground 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 Court 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 also 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 criminal 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 Lininger, The New Wigmore. A 

Treatise on Evidence: Impeachment and Rehabilitation, § 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 the Pennsylvania evidentiary 

standard is less exacting than its Federal and Kansas counterparts, I would hold that 

the trial court abused its discretion in not accepting Appellant’s proffered stipulation that 

he had previously committed an enumerated crime, which therefore rendered him a 

person not to possess a firearm. I would further conclude 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 one time in the past, was convicted of a 

disqualifying offense satisfies that element of Section 6105(a); the Commonwealth 

needs nothing more. Put differently, it establishes his legal status as a disqualified, 

convicted felon, thus preserving the probative value of the evidence while reducing the 

danger of unfair prejudice that inherently is associated with the prosecutor informing the 

jury that Appellant had previously been convicted of 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 respectfully dissent. 
[J-19-2014] - 10 

Mr. Chief Justice Castille, Mr. Justice Eakin, Madame Justice Todd and Mr. 

Justice Stevens join the opinion. 

Mr. Justice Saylor joins this dissenting opinion.