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

COMMONWEALTH OF PENNSYLVANIA

Appellant

v.

BYRON HIGGINBOTHAM : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 697 EDA 2018 Appeal from the Order February 13, 2018 In the Court of Common Pleas of Bucks County Criminal Division at

No(s): CP

- 09

- CR

- 0006231

- 2017

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

MEMORANDUM BY BOWES, J.: FILED A UGUST 13, 2019
The Commonwealth of Pennsylvania appeals from the order granting the
omnibus pretrial motion to suppress filed by Byron Higginbotham. We affirm
in part , reverse in part, and remand for further proceedings consistent with

this memorandum

.
O n the evening of June 24, 2017, a residential burglary occurred at 1405

Newton

- Yardley Road, and another residential burglary was attempted at

1411 Newton

- Yardley Road, in Lower Makefield Township, Pennsylvania.
Appellee was arrested and charged with burg lary , attempted burglary, and

related offenses in connection with those crimes

. On July 24, 2017, police detectives interviewed Appellee at the Mercer
County Jail regarding the crimes . Prior to the interview, the detectives readJ

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Appellee his Miranda 1 ri ghts, and Appellee agreed to provide a statement.

The detectives showed Appellee the criminal complaint they had prepared, as
well as still photographs taken from a video surveillance camera which
captured the image of the individual belie ved to be the perpetrator

. During
their conversation, which lasted thirty

- five to forty minutes, Appellee made

four statements to the detectives , which one of the detectives recount ed at
the suppression hearing as follows :

Statement one: “[ Appellee ] basically stated t hat he was not the person in the photographs , but he could understand how someone who ’s been incarcerated for 14 years and comes out with no job, no resources[,] and no money would do something like this.” N.T. Suppression Hearing , 2/1 2 /18, at 30

.
St atement two: “[ Appellee ] originally denied knowing Gerome Robinson . . . [ e ] ventually he did admit knowing Gerome Robinson. Id

.
Statement three: “[ Appellee ] said, tell you what, I’ll do six months

. I’ll sign anything you want.” Id

. at 31

Statement f our: “[ Appellee ] sai d , I’ll tell you what, come see me when I get to Bucks and we’ll work something else out .” Id

. On August 8, 2017, the detectives went to the Bucks County

Correctional F acility to further interview Appellee regarding the crimes

. When

one of the detectives began to read Appellee his Miranda rights, Appellee
stopped him and asked to speak with his attorney. The detectives stopped

_________________ __________ ______ ____ _______

1 Miranda v. Arizona , 384 U.S. 436 (1966).J

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the interview, and as they were preparing to leav e, Appellee made the
following statement to them :

Stat ement five: “[ Appellee ], again , stated [to the detectives] that he would do six months for the offense and he would sign wh er ever.” Id . at 33

. Appellee subsequently filed an omnibus pretrial motion in which he
sought to suppress the statements. The Commonwealth filed a motion in

limine seeking permission to introduce at trial Appellee’s numerous prior

convictions for residential burglary

. 2 The trial court conducted a suppression
hearing on February 12, 2018. On February 13, 2018, the trial court

announced its order denying suppression on the basis that no police

misconduct occurred and the officers had acted appropriately ; however, it

ruled that the statements were nevertheless inadmissible at trial because their
probative value was outweighed by their prejudice to Appellee under Pa.R.E.

403

. On that same date, the trial court denied the Commonwealth’s motion

in limine

.

_________________ __________ ______ ____ _______

2 Specifically, t he Commonwealth sought to introduce more than one dozen residential burglary convictions as evidence of prior bad acts under Pa.R.E. 404(b), along with evidence that he received a prison sentence of ten to twenty

- one years and, after serving fourteen years, was released five months before the burglary and attempted burglary at issu e occurred.J

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The Commonwealth filed a timely notice of appeal pursuant to Pa.R.A.P.
311(d) , 3 and a court

- o rdered P a.R.A.P. 1925(b) concise statement of errors
complained of on appeal

. 4 The trial court thereafter issued it s Pa.R.A.P.
1925(a) opinion.
The Commonwealth raises the following issue for our review:

Did the trial court err and/or abuse its discreti on in ruling inadmissible [ Appellee’s ] statements to police on both July 24, 2017[,] and August 8, 2017, in their entirety, on the sole basis that the probative value of those statements was outweighed by “unfair prejudice” under Pa.R.E. 403, where the tri al court ruled that the statements were not subject to suppression as there was no police misconduct, as the statements were otherwise relevant and admissible at trial, where the probative value of each statement outweighed any potential for unfair prejudi ce, and where any potential prejudice would be minimized by cautionary instructions, if necessary?
Commonwealth brief at 4 (unnecessary capitalization omitted).

Our standard of review is well

- established :
[T] he admissibility of evidence is within the discretion of the trial court, and such rulings will not form the basis for appellate relief absent an abuse of discretion. Thus, the Superior Court may reverse an evidentiary ruling only upon a showing that the trial court abused that discretion. A dete rmination that a trial court abused its discretion in making an evidentiary ruling may not be made merely because an appellate court might have reached a different conclusion, but requires a result of manifest

_________________ __________ ______ ____ _______

3 Pursuant to Rule 311(d), “[i] n a criminal case, under the circumstances provided by law, the Commonwealth may take an appeal as of right from an order that does not end the entire case where the Commonwealth certifies in the notice of appe al that the order will terminate or substantially handicap the prosecution .” Pa.R.A.P. 311(d).

4 The Commonwealth has not challenged the denial of its motion in limine on appeal.J

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unreasonableness, or partiality, prejudice, bi as, or ill

- will, or such lack of support so as to be clearly erroneous. Further, discretion is abused when the law is either overridden or misapplied.

Commonwealth v. Hoover , 107 A.3d 723, 729 ( Pa. 2014) (internal citations
and quotation marks omitted).
Pursuant to Pennsylvania Rule of Evidence 401, “[e] vidence is relevant

if: (a) it has any tendency to make a fact more or less probable than it would

be without the evidence; and (b) the fact is of consequ ence in determining

the action

. ” Pa.R.E. 401. Additionally, Rule 403 provides that “[t] he 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,

mislea ding the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence .” Pa.R.E. 403.

Statement One

We first address Appellee’s statement one , wherein he told the

detectives that “he was not the person in the photographs, but he could
understand how someone who’s been incarcerated for 14 years and comes
out with no job, no resources[,] and no money would do something like this

. ”
N.T. Suppression Hearing, 2/12/18, at 30 . T he Commonwealth claims it
sought its introduction as probative evidence of Appellee’ s motive for
committing the offenses, and as an admission by which the jury could infer

his consciousness of guilt. Furthermore, t he Commonwealth argues that
Appellee challen ged only the portion of statement one which referencedJ

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“someone who’s been incarcerated for 14 years” (hereinafter referred to as
“the incarceration portion of statement one”) as being unduly prejudicial

. 5

The Commonwealth concedes that , at the suppression hearing, it agreed

to redact the incarceration portion of statement one if the trial court ruled that
Appellee’s prior burglary convictions were inadmissible . N evertheless, it now
argues that, despite that very ruling by the trial cou rt , the incarceration
portion of statement one was admissible as evidence of Appellee’s motive and

intent

. The Commonwealth contends that the mere fact that Appellee

mentioned incarceration does not render the incarceration portion of

statement one inadmi ssible, particularly where, as in this case, the issue at
trial was Appellee’s identity as the perpetrator. According to the

Commonwealth , any prejudice cause d by admission of the incarceration
portion of statement one “would be eradicated or minimized by cautionary
instructions to the jury explaining the limited purpose for which the evidence
is being admitted.” Commonwealth’s brief at 19.
With respect to the remaining portions of statement one, t he

Commonwealth asse rts that it proposed the following redacted version in the

event that the trial court denied its motion in limine : “ I’m not saying the guy

_________________ __________ ______ ____ _______

5 The Commonwealth claims that Appellee only challenged the remainder of the first statement on the basis that it was not reduced to writing and signed or adopted by him, and the Commonwealth did not need it. Commonwealth’s brief at 16.J

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in the picture is me , but I can see how a guy with no job, no money[,] and no

resources does something like this

. ” N .T. Suppression Hearing, 2/12/18, at

57 . The Commonwealth claims that the trial court improperly weighed the
proposed redacted version of statement one, and incorrectly found that the
only probative value of those portion s of the statement would be to est ablish
that Appellee had no job, no resources, and no money, and would be more
likely to commit a burglary and related offenses than someone with a job,

resources , or money. The Commonwealth argues that the prejudice attendant
to attempting to stigmatize Appellee for being unemployed is not present here,
where the Commonwealth was not seeking to introduce evidence of Appellee’s
actual unemployment as motive, but instead was relying on Appellee’s
inculpatory statements to establish his motive, intent and co nsciousness of
guilt.

The trial court explained the rationale for its ruling on all portions of

statement one as follows :
The Commonwealth conceded the portion of the statement regarding Appellee’s fourteen year incarceration should be removed. This le aves the following statement at issue: “he could understand how someone with no job, no resources and no money would do something like this.” In evaluati ng this statement, its only probative value is to establish Appellee had no job, no resources and no m oney, and would be more likely to commit a burglary and related offenses than someone with a job, resources or money. This statement is unfairly prejudicial because it invites the jury to decide the case on the improper basis that Appellee committed the c rimes alleged because he is unemployed and has no income. In Commonwealth v. Haight , 525 A.2d 1199 (Pa. 1987), our Supreme Court specifically held the Commonwealth could not use evidence of the defendant’s unemployment as aJ

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motive for committing a burglar y because it does not prove or disprove any of the facts needed to establish the crime of burglary. . . . Because Appellee’s lack of income cannot properly be used to establish motive to commit a burglary, there is little if any probative value.

Trial Court Opinion, 5/11/18, at 7 (footnotes omitted).
We initially address the Commonwealth’s argument that the trial court

should have admitted the incarceration portion of statement one . The

Commonwealth conceded at the suppression hearing that , if the trial court

denied its motion in limine to admit Appellee’s prior burglary convictions, the
incarceration portion of statement one should be excluded. See N.T.
Suppression Hearing, 2/12/18, at 56

- 57. The trial court took the

Commonwealth at its word, and upon denying the motion in limine at the
conclusion of the hearing, subsequently ruled that the incarceration portion of

statement one was unfairly prejudicial, and hence, inadmissible. The

Commonwealth now seeks a determination from this Court that the trial court

abused its discretion in entering the very ruling to which the Commonwealth
agreed

. A s the Commonwealth did not argue to the suppression court that
the incarceration portion of statement one was admissible even if the court

denied its motion in limine , it failed to preserve this claim for our review. 6 See

_________________ __________ ______ ____ _______

6 Since the Commonwealth agreed to redact the portion of statement one that referenced f ourteen years of incarceration, the trial court did not consider whether that statement, in its original form, was relevant and admissible to prove identity or consciousness of guilt. Arguably, under the original statement, Appellee volunteered information that mirrored his ownJ

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Pa.R.A.P. 302(a) (“ Issues not raised in the lower court are waived and cannot
be raised for the first time on appeal. ”). Thus, no relief is due regarding the

in carceration portion of statement one.

Moreover, we find no abuse of discretion in the trial court’s

determination that the proposed redacted version of statement one was

inadmissible. In Haight , the defendant , like Appellant herein, was charged
with burglary. During trial , the Commonwealth was allowed to elicit testimony

that , at the time the crime was committed , the defendant was unemployed
and receiving welfare benefits. On appeal, the defendant challenged the
admissibility of that statement . T he Commonwealth argued that the evidence

of income was relevant to show that the defendant had a motive for the
burglary, i.e ., that since he was poor, he needed money. Our Supreme Court
concluded that evidence of indigency was irrelevant on the quest ion of
whether the defendant committed the burglary , and affirmed this Court’s
ruling that evidence relating to the defendant ’ s unemployment and receipt of

welfare benefits had been improperly admitted by the trial court

. Haight ,
supra at 1200 ( “ T estimony of income

. . . does not tend to prove or disprove
any of the facts needed to establish the crime of burglary ”) ; see also

_________________ __________ ______ ____ _______ circumstances with sufficient specificity as to identify himself as the perpetrator, which would favor admissibility of the statement. Since the original statement is not before us for review, we do not decide whether the original statement is admissible.J

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Commonwealth v. Barkelbaugh , 584 A.2d 927 , 929 (Pa. 1990 ) (holding
that the Commonwealth cannot use evidence of unemployment to establish
motive to commit a crime). As we explained in Commonwealth v. Brown , 911 A.2d 576 (Pa.Super. 2006) :
while evidence of indebtedness or of other financial burdens may be clea rly probative of a possible motive to commit a crime for monetary gain, we must also consider whether, on the other side of the equation, the potential for prejudice outweighs the obvious relevance of the proof. We are sensitive to the fact that a blanket application of this principle would “ prove too much against too many ” and may encourage the Commonwealth to argue that a

“ defendant [with] no apparent means of income... was more likely to commit a crime for dollar gain. ”

Id . at 584.

We are mindful that t here is no absolute bar to the admission of

evidence of financial difficulties. See Commonwealth v. Wax , 571 A.2d 386
(Pa.Super. 1990). Indeed, evidence of specific debts may be introduced
where the jury may clearly draw an inference that the financial difficulties of
the defendant were material to his motive or state of mind in committing a

crime , and evidence of the debt was not intended to stigmatize the appellant

on the basis of his economic status. Brown , supra at 584 (affirming
admission of evidence of appellant’s financial difficulties where the evidence

tended to establish that those difficulties were linked directly to the fact the

victim fired a ppellant, a p pellant blamed the victim for his financial difficulties , appellant had no money the day before the victim’s robbery/ murder, yet had
sufficient money to gamble and stay at a hotel immediately following theJ

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robbery/homicide at issue ); see also Wax supra at 389 ( concluding that
proof of appellant ’ s specific and substantial immediate financial liabilitie s , including monies that he owed for rent of his office, gambling de b ts, and for
the purchase of a Mercedes that had been repossessed, together with an

aff luent lifestyle , was evidence from which the jury reasonably could infer a

motive for the commission of the crime of theft by deception in making a false
insurance claim for items in his office that he removed before the fire, and
was not unduly prejudicia l ).
Here, unlike in Wax and Brown , the Commonwealth offered no
evidence of any specific debt or financial difficulties experienced by Appellee

. Indeed, the Commonwealth offered no evidence from which a jury could
clearly draw an inference that Appellee’ s financial difficulties were material to
his motive or state of mind in committing the particular crimes in question.

Brown , supra . Without such evidence, the Commonwealth’s proposed
redacted version of statement one carried the potential to stigmatize Appellee
by creating the inference that since he was poor and unemployed , he needed

money , and therefore had a motive to commit the crimes in question, as
proscribed by Haight

.
As we have explained, in order to demonstrate that a trial court abused

its discretion in making an evidentiary ruling , the appellant must prove that

the ruling was the result of manifest unreasonableness, partiality, prejudice,
bias, ill

- will, or made with such lack of support so as to be clearly erroneous ,J

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or that the law is either overridden or misapplied. Hoover , supra at 729.

Here, we discern no abuse of discretion by the trial court in arriving at its

determination that the proposed redacted version of statement one was
inadmissible on the basis that it was not relevant to prove or disprove any
element of the crimes of burglary and attempted burglary, and that any
probative value associated with that statement was outweighed by the danger
of unfairly stigmatiz ing Appe llee on the basis of his economic status

. Accordingly, no relief is due regarding the proposed redacted version of

statement one. 7

Statement Two

The Commonwealth next argues that the trial court abused its discretion
in ruling inadmissible Appellee’s stat ement two, wherein he admitted to
knowing Gerome Robinson after originally denying that he knew him. N.T.
Suppression Hearing, 2/12/18, at 30. The Commonwealth claims that
Appellee identified no specific grounds for hi s objection to this statement, and,

_________________ __________ ______ ____ _______

7 W e are mindful of the Commonwealth’s claim that the trial court initially ruled , without explanation, that the probative value of the proposed redacted version of statement one was outweighed by its potential prejudice to Appellee , and that i n its subsequent opinion, it relied on Haight in arriving at its conclusion that the proposed redacted version of statement one was also irrelevant because it did not tend to prove or disprove any facts needed to prove the crime of burg lary. See Trial Court Opinion, 5/11/18 , at 7 n.9. However , the fact that the trial court expanded its reasoning in its opinion is of no moment, as we may affirm its evidentiary ruling on any valid basis appearing of record. Commonwealth v. Moore , 937 A.2d 1062, 1073 (Pa. 2007).J

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indeed, stated that he would not challenge statement two if Mr. Robinson took

the stand at trial. The Commonwealth also claims that, whereas the trial court
initially ruled that statement two was inadmissible on the basis that it was
unduly prejudicial, i t later explained in its opinion that statement two was
irrelevant, since Mr. Robinson was neither a victim nor a co

- conspirator. The
Commonwealth points out that Mr. Robinson was the owner of a vehicle that
police observed near the scene of the burglary and attempted burglary, and

which was later captured on surveillance video travelling over the bridge

toward New J ersey where Appellee lives. The Commonwealth argues that
Appellee’s connection to Mr. Robinson and his vehicle was circumstantial
evidence that placed Appellee at the scene of the crimes, thereby rendering

statement two both relevant and admissible.
We agree with the Commonwealth that statement two was relevant to
the issue of identity, i .e ., the determination of whether Appellee was at or
near the scene of the burglary and attempted burglary at the time they were

committed

. According to the affidavit of probable cause, seven minutes before
the alarm was activated at the scene of the burg lary, Mr. Robinson’s vehicle
was observed approximately 100 feet away. See Affidavit of Probable Cause,
6/28/17, at 1. Additionally, Mr. Robinson told police that he had given his
vehicle to Appellee two days before the burglary and attempted burglary to

have brake service done on the vehicle. Id

. Based on these averments, we
conclude that statement two was clearly relevant to the question of whetherJ

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Appellee was at or near the scene of the burglary and attempted burglary.

We further conclude that the potential unfair prejudice associated with the

admission of statement two was , at most, de minimus . Therefore, the trial

co urt’s ruling that the probative value of statement two was outweighed by
any unfair prejudice was clearly erroneous . Accordingly, w e reverse that
ruling.

Statement s Three , Four and Five
As Appellee’s remaining statements are similar in nature, we will
address them together. In statement three, “[Appellee] said, tell you what,
I’ll do six months. I’ll sign anything you want.” N. T. Suppression Hearing,
2/12/18, at 31

. In statement four , “[Appellee] said, I’ll tell you what, come
see me when I get to Bucks and we’ll work something else out.” Id

. In

stat ement five , when the detectives visited Appellee at the Bucks County

Correcti onal Facility, Appellee initially invoked his Miranda rights by asking
to speak with his attorney, but as the detectives were preparing to leave,
“[Appellee], again, stated [to the detectives] that he would do six months for
the offense and he would sign wherever.” Id . at 33. 8

_________________ __________ ______ ____ _______

8 The trial court and the Commonwealth refer to statements three and four as a single statement, however, based on our reading of the notes of testimony, we consider them to be separate statements. See N.T. Suppression Hearing , 2/12/18, at 31. However, this distinction in no way affects our analysis or disposition regarding those statements.J

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The Commonwealth argues that these statement are relevant and
admissible as evidence of Appellee’s consciousness of guilt . It further argues

that Appellee’s offer s to do limited jail time for the offenses in question,
following his initial denial of any involvement in the crimes , are inculpatory
statements reflecting his consciousness of guilt. The Commonwealth claims

that Appell ee ’s sole challenge to the admissibility of these statements was

based on the fact that statement five was made after he had invoked his

Miranda rights. 9 See N.T. Suppression Hearing, 2/12/18, at 50

- 51. The

Commonwealth contends that statement fiv e is admissible because it was
volunteered by Appellee, and was in no way solicited by the detectives. Based
on these considerations, the Commonwealth asserts that the trial court’s

determination that statements three, four, and five “are not an

acknowled gment of guilt and do not prove or disprove any of the facts needed
to establish any of the crimes in this case,” is unsound. Commonwealth’s brief
at 29 (quoting Trial Court Opinion, 5/11/18 , at 8

- 9).
We agree with the Commonwealth. We have consistentl y held that
spontaneous, volunteered statements like A ppell ee ’s statements to the

detectives are admissible when relevant as an admission of guilt , and of
substantial probative value in that Appellee , in effect , admitted that he knew

_________________ __________ ______ ____ _______

9 The record reflects that Appellee’s counsel also objected to statements three and four on the basis that they were not in writing or i nitialed by Appellee. See N.T. Suppression Hearing, 2/12/18, at 49

- 50.J

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precisely what he had done and the potential consequences of his conduct.
For example, in Commonwealth v

. VanDivner , 962 A.2d 1170, 1181 ( Pa.
2009) , the defendant shot his estranged girlfriend and her son in front of

several eyewitnesses and fled into the woods. After he was apprehended and

while he was being taken into an interview room, Van D ivner blurted out to

s tate t roopers “[t] his is a death penalty case. I don ’ t want the needle. Life

for life. Tell the [district attorney] I will plead guilty to life. I would have

killed myself if I knew Michelle was dead. ” Id

. at 1180. Prior to trial,

Van D ivner sought to suppress the statements that he made to the troopers.

He argued that his statements were intended to “ initiate plea negotiations; ”
therefore, they were inadmissible under Pa.R.E. 410(a)(4). VanDivner ,
supra at 1181. The trial court found that Van D ivner ’ s voluntary, unsolicited
statements to the troopers were not made in furtherance of striking a plea
bargain. On appeal, our Supreme Court affirmed, finding that the trial court

did not abuse its discretion, explaining:

Here, there is no allegation by appellant, nor is there any evidence in the record suggesting that, a t the time of appellant ’ s statement, when he had just been apprehended for a murder witnessed by several people, the Commonwealth had conveyed any interest in negotiating a plea. Appellant ’ s statement was a voluntary, unsolicited confession to the State P olice troopers, not a statement made in furtherance of non - existing plea negotiations. Thus, the trial court did not abuse its discretion in denying appellant ’ s motion in limine

.
Id

. at 1181

- 82.J

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As in VanDivner , the content of statements three, four , and five was
obviously relevant, as th ose statements were, in effect, acknowledgements of
Appellee’s guilt. See id . at 1181. T he statements had substantial probative

value in that Appellee essentially admitted that he knew precisely what he had
done and the potential consequences of his conduct. Id . That awareness, in
turn, was relevant to his pretrial claim that he was not guilty of the burglary

and attempted burglary which occurred on J u ne 24, 2017

. Furthermore, there

is no allegation by Appellee, nor is there any evidence in the record suggesting

that the Commonwealth had conveyed any interest in negotiating a plea at

the time Appellee made statements three, four , and five to the detec tives,

who were interviewing him regarding the crimes in question

. Hence, w hile
the statements are unquestionably prejudicial, we believe that their probative
value outweighed their prejudicial effect under the totality of the
circumstances presented. Ac cordingly, we conclude that the trial court ruling
that statements three, four, and five were inadmissible was clearly erroneous.

We therefore reverse that ruling.

In sum, w e affirm the trial court’s February 13, 2018 order as it relates
to statement one, and reverse the order as it relates to statements two, three,

four , and five , and remand for further proceedings consistent with this

memorandum.
Order affirmed in part and reversed in part. Case remanded for further
proceedings consistent with the memorandum. Jurisdiction relinquished.J

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Judge Stabile joins the memorandum.
Judge McLaughlin files a concurring and dissenting memorandum.
Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/13/19