J-A27005-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

On 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 burglary, 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 read 
J-A27005-18

- 2 -

Appellee his Miranda1rights, 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 believed 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 recounted at 

the suppression hearing as follows:

Statement one: “[Appellee] basically stated 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. 

Statement 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 four: “[Appellee] said, 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 Facility 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-A27005-18

- 3 -

the interview, and as they were preparing to leave, Appellee made the 

following statement to them:

Statement five: “[Appellee], again, stated [to the 

detectives] that he would do six months for the offense and he 

would sign wherever.” 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, the 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 issue occurred. 
J-A27005-18

- 4 -

The Commonwealth filed a timely notice of appeal pursuant to Pa.R.A.P. 

311(d),

3 and a court-ordered Pa.R.A.P. 1925(b) concise statement of errors 

complained of on appeal.

4

 The trial court thereafter issued its 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 discretion 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 trial 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 prejudice, 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 determination 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 appeal 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-A27005-18

- 5 -

unreasonableness, or partiality, prejudice, bias, 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 consequence 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, 

misleading 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. The 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, the Commonwealth argues that 

Appellee challenged only the portion of statement one which referenced 
J-A27005-18

- 6 -

“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. Nevertheless, it now 

argues that, despite that very ruling by the trial court, 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 inadmissible, particularly where, as in this case, the issue at 

trial was Appellee’s identity as the perpetrator. According to the 

Commonwealth, any prejudice caused 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, the 

Commonwealth asserts 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-A27005-18

- 7 -

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 portions of the statement would be to establish 

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 consciousness 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 leaves the following statement at issue: “he could 

understand how someone with no job, no resources and no money 

would do something like this.” In evaluating this statement, its 

only probative value is to establish 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. This statement is unfairly prejudicial because it invites 

the jury to decide the case on the improper basis that Appellee 

committed the crimes 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 a 
J-A27005-18

- 8 -

motive for committing a burglary 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. As 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 fourteen 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 own 
J-A27005-18

- 9 -

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 

incarceration 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. The 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 question 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 (“Testimony 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-A27005-18

- 10 -

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 clearly 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 there 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 appellant, appellant 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 the 
J-A27005-18

- 11 -

robbery/homicide at issue); see also Wax supra at 389 (concluding that 

proof of appellant’s specific and substantial immediate financial liabilities,

including monies that he owed for rent of his office, gambling debts, and for 

the purchase of a Mercedes that had been repossessed, together with an 

affluent 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 prejudicial). 

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-A27005-18

- 12 -

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 stigmatizing Appellee 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 statement 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 his objection to this statement, and, 

____________________________________________

7 We 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 in 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 burglary. 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-A27005-18

- 13 -

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, it 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 Jersey 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 burglary, 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 whether 
J-A27005-18

- 14 -

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 

court’s ruling that the probative value of statement two was outweighed by 

any unfair prejudice was clearly erroneous. Accordingly, we reverse that 

ruling. 

Statements 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 

statement five, when the detectives visited Appellee at the Bucks County 

Correctional 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-A27005-18

- 15 -

The Commonwealth argues that these statement are relevant and 

admissible as evidence of Appellee’s consciousness of guilt. It further argues 

that Appellee’s offers 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 Appellee’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 five 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 

acknowledgment 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 consistently held that 

spontaneous, volunteered statements like Appellee’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 initialed by Appellee. 

See N.T. Suppression Hearing, 2/12/18, at 49-50. 
J-A27005-18

- 16 -

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, VanDivner blurted out to

state troopers “[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,

VanDivner 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 VanDivner’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, at 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 Police 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-A27005-18

- 17 -

As in VanDivner, the content of statements three, four, and five was

obviously relevant, as those statements were, in effect, acknowledgements of 

Appellee’s guilt. See id. at 1181. The 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 June 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 detectives,

who were interviewing him regarding the crimes in question. Hence, while 

the statements are unquestionably prejudicial, we believe that their probative 

value outweighed their prejudicial effect under the totality of the 

circumstances presented. Accordingly, 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, we 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-A27005-18

- 18 -

Judge Stabile joins the memorandum.

Judge McLaughlin files a concurring and dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/13/19