[J-73-2020][M.O. – Donohue, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

ERIC YALE,

Appellant

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No. 9 MAP 2020

Appeal from the Order of the Superior 

Court dated 8/9/19 at No. 472 MDA 

2018 affirming the judgment of sentence 

of the Luzerne County Court of 

Common Pleas, Criminal Division, 

dated 11/17/17 at No. CP-40-CR0001152-2017

ARGUED: September 16, 2020

DISSENTING OPINION

JUSTICE SAYLOR DECIDED: April 29, 2021

The majority holds that, in criminal cases, the general bar against the admission 

of propensity evidence imposed by Pennsylvania Rule of Evidence 404(b)(1) applies 

only to proffers by the Commonwealth. See Majority Opinion, slip op. at 32-33. 

According to the majority, Rule 404(b)(1) couldn’t be applied to such evidence adduced 

by criminal defendants in any event, because this application would violate federal 

constitutional norms, particularly the right of defendants to present a complete defense. 

See id. at 26-28.

In terms of the constitutional considerations, certainly defendants generally 

cannot be prevented from presenting a defense. Nevertheless, this right is subject to 

reasonable restriction and therefore, its breadth is subject to “established rules of 

procedure and evidence designed to assure both fairness and reliability in the 
[J-73-2020][M.O. – Donohue, J.] - 2

ascertainment of guilt or innocence.’” Chambers v. Miss., 410 U.S. 284, 302, 93 S. Ct. 

1038, 1049 (1973)). Accordingly, an evidentiary rule is constitutionally infirm, as an 

undue curtailment of the right to present a defense, only “when it infringes on a weighty 

interest of the defendant and is arbitrary or disproportionate to the purpose it was 

designed to serve.” Holmes v. South Carolina, 547 U.S. 319, 324, 126 S. Ct. 1727, 

1731 (2006). In this regard, “state and federal rulemakers have broad latitude under the 

Constitution to establish [reasonable] rules excluding evidence from criminal trials.” 

U.S. v. Scheffer, 523 U.S. 303, 308, 118 S. Ct. 1261, 1264 (1998)

As applied to defense proffers, I fail to see how a general ban against using 

evidence merely to demonstrate a propensity to commit crimes or other bad acts, see

Pa.R.E. 404(b)(1), tempered by the allowance for admission of other-bad-acts evidence 

for other relevant purposes, see Pa.R.E. 404(b)(2), is arbitrary or disproportionate to the 

relevant aims. Significantly, evidence of personal predisposition is most often collateral 

and can be “distracting, time-consuming, and likely to influence a fact finder beyond its 

legitimate probative value.” State v. Donald, 316 P.3d 1081, 1089 (Wash. App. 2013) 

(citing Scheffer, 523 U.S. at 314, 118 S. Ct. at 1267).1 Indeed, while courts in other 

jurisdictions differ substantially concerning the direct applicability of Rule 404(b)

analogues to defense proffers, most appear to agree that other-bad-acts evidence is 

generally inadmissible for purposes of demonstrating only a predisposition to commit 

crimes or other bad acts, even where a defendant seeks to do so in an attempt to 

 

1 Although the Scheffer case concerned a rule prohibiting the admission of polygraph 

evidence rather than one about prior bad acts, concerns with avoiding collateral 

litigation and distraction also attend Rule 404(b). In this respect, I respectfully differ with 

the majority’s focus on the prejudicial impact on defendants as presenting a unilateral 

justification for the ban against propensity evidence. Compare Majority Opinion, slip op.

at 30, with U.S. v. McCourt, 925 F.2d 1229, 1235-36 (9th Cir. 1991) (explaining that the 

general prohibition against predisposition-based evidence “has roots in more than one 

concern”).
[J-73-2020][M.O. – Donohue, J.] - 3

deflect blame to a third party. See, e.g., U.S. v. Peneaux, 81 F. Supp. 3d 764, 767 

(D.S.D. 2014) (collecting cases from several federal circuit courts of appeals); see also 

Donald, 316 P.3d at 1086 (explaining that there is presently no federal judicial decision 

recognizing a constitutional right to admit propensity evidence). For these reasons, I 

respectfully disagree with the majority’s constitutional analysis.

As to the specific applicability of Rule 404(b) to defense proffers, as Justice 

Dougherty observes, the plain language of this anti-propensity provision applies. And I 

agree with those courts observing that the functional analysis -- as between the 

competing approaches of applying Rule 404(b) on its terms or defaulting to a relevance 

and weighing analysis under Rules 401 and 403 as the majority favors here -- is largely 

the same (as long as some screening against pure propensity-based uses is employed 

in the latter approach). See Ermin v. Scott, 937 F.3d 1329, 1343 (11th Cir. 2019) 

(quoting U.S. v. Sellers, 906 F.2d 597, 604 n.11 (11th Cir. 1990)). I take this 

opportunity, in any event, to note that my own view aligns with those courts that do 

adhere to the Rule 404(b) framework. See, e.g., U.S. v. Williams, 458 F.3d 312, 317 

(3d Cir. 2006). See generally 3 JONES ON EVIDENCE §17:78 (7th ed. 2020).

In the present case, consistent with Justice Dougherty’s analysis, the trial court 

specifically relied on salient considerations in excluding the evidence of the crimes that 

Appellant sought to attribute to Thompson. In this regard, the court explained that the 

attempt to introduce other-bad-acts evidence on Thompson’s part was:

not really a defense or contrary to the Commonwealth’s 

theory of the case since the jury heard that Larry Thompson 

was also charged in this incident and the Commonwealth 

asserted that the Defendant and Mr. Thompson are both 

culpable by acting in concert with one another as coconspirators and accomplices.
[J-73-2020][M.O. – Donohue, J.] - 4

Commonwealth v. Yale, No. 1152-2017, slip op. at 7 (C.P. Luzerne Oct. 26, 2018). For 

this reason, and particularly in the absence of some fact or factor arising out of the priorbad-acts evidence that would evince unilateral action on Thompson’s part, the court 

found the evidence “would be too collateral, confusing, and distract the jury from the 

issues being considered in this trial.” Id. at 9. Furthermore, Appellant was in no way 

precluded from presenting a defense, since he himself testified to a version of the 

events in which Thompson was portrayed as the sole perpetrator, despite the presence 

of an array of precursor materials and paraphernalia in Appellant’s own bedroom. See

N.T., Sept. 26, 2017, at 86-89.

2

I would only add that the line of reasoning pursued by Appellant in seeking 

admission of Thompson’s prior bad acts is plainly propensity-based, in that Appellant 

wished to posit to the jurors that Thompson’s predisposition to manufacture 

methamphetamine using a particular method served as proof of his own innocence (or 

at least to cast a reasonable doubt on the Commonwealth’s theory that he was 

complicit). Thus, I conclude that the Rule 404(b)(1) prohibition directly applied in the 

first instance.

This position is consistent with the decisions of several other courts that have 

considered the theory that a companion’s convictions bear on a defendant’s noncomplicity. The following passage from the Third Circuit’s decision in Williams -- which 

concerned whether a defendant’s conviction of a firearms offense should be overturned 

 

2 Notably, Appellant’s version of his encounter with police was materially inconsistent 

with the account of the testifying law enforcement officer. For example, the officer 

related that Appellant was found upstairs in his bedroom, where the items of 

paraphernalia were strewn about. See N.T., Sept. 26, 2017, at 26-27. Appellant, on the 

other hand, testified that he encountered police downstairs and “out to the back,” and 

that, with regard to the paraphernalia items, Thompson had “shoved [them] into a

closet.” Id. at 87-89.
[J-73-2020][M.O. – Donohue, J.] - 5

on account of a district court’s decision to exclude evidence of a companion’s previous 

conviction for such an offense -- is illustrative:

Ultimately, [the companion’s] prior conviction was only 

probative inasmuch as it showed that he had a propensity to 

carry a weapon -- the purpose proscribed by Rule 404(b). 

[The defendant/appellant’s] protestations to the contrary are 

not persuasive. As we stated in United States v. Morley, 199 

F.3d 129 (3d Cir. 1999), “a proponent's incantation of the 

proper uses of such evidence under the rule does not 

magically transform inadmissible evidence into admissible 

evidence.” Id. at 133. He or she “must clearly articulate how 

that evidence fits into a chain of logical inferences, no link of 

which may be the inference that the defendant has the 

propensity to commit the crime charged.” Id. (quoting United 

States v. Himelwright, 42 F.3d 777, 782 (3d Cir. 1994)). 

[The defendant/appellant] has not done that here. We 

therefore conclude that the District Court did not err in 

excluding evidence of [the companion’s] conviction, as it was 

not admissible to show propensity and was not probative of 

identity or opportunity. See [United States v.] Lucas, 357 

F.3d [599,] 606 [(6th Cir. 2004)] (holding that companion's 

prior conviction for possessing and selling cocaine was not 

admissible to show that defendant did not possess the 

cocaine in question because it showed propensity and was 

not probative of knowledge or intent); [United States v.] 

Spencer, 1 F.3d [742,] 745 [(9th Cir. 1992)] (holding that 

companion's prior bad act of “[h]iding a gun under a car seat 

is not a distinctive crime, and cannot be used to satisfy the 

‘identity’ exception to Rule 404(b)”).

Williams, 458 F.3d at 319; accord Donald, 316 P.3d at 268.

I take no issue with the notion that application of the Rule 404(b)(2) exceptions 

may be relaxed somewhat related to non-propensity applications of prior bad acts 

evidence proffered by criminal defendants. See Williams, 458 F.3d at 317. But in the 

present case, as related above and consistent with Williams, it seems clear to me that 

Appellant’s proposed use of the evidence was, in fact, based on an asserted 

predisposition on Thompson’s part.
[J-73-2020][M.O. – Donohue, J.] - 6

To the degree that Appellant would claim the benefit of the Rule 404(b)(2) 

exception related to proof of identity, I agree with the trial court that the probative value 

to this effect was highly limited. In this regard, courts enforce a fairly high threshold of 

similarity to prove identity precisely because, absent such similarity, the evidence simply 

isn’t probative of identity, and the only rational inference for the factfinder to make would 

be based on propensity. See, e.g., Williams, 458 F.3d at 318. Again, moreover, in 

cases such as this one involving alleged complicity, the probative value of prior bad acts 

of asserted co-perpetrators relative to establishing “identity” is further diluted. For these 

reasons, even applying a relaxed similarity standard to an identity-based theory of 

admissibility, like the trial court, I find the similarity between Thompson’s prior bad acts 

and the crimes with which Appellant was charged to be too generic to qualify under the 

exception. Accord. Dissenting Opinion, slip op. at 2-3 (Dougherty, J.).

3

Based on the above, I discern no abuse of discretion on the part of the trial court 

and respectfully dissent.

Finally, I question the majority’s approach of enlisting the trial court to render a 

new, after-the-fact, substitute, discretionary evidentiary ruling. See Majority Opinion, 

slip op. at 40. From my point of view, it would be more conventional and appropriate to 

remand to the Superior Court to assess whether the error discerned by the majority is 

harmless. Notably, the Commonwealth did raise harmless error in the brief that it 

presented to the Superior Court, and this alternative argument hasn’t yet been 

 

3

If there is a difference between my analysis of the propriety of the trial court’s ruling 

and that of Justice Dougherty, I might allow that the evidence of Thompson’s other bad 

acts would pass a pure relevance test, because propensity or predisposition to commit 

similar crimes is in fact relevant, and the evidence could have provided a modicum of 

bolstering to Appellant’s own account of the events. Thus, my emphasis here is more 

upon the import of the general rule disfavoring propensity-based uses of evidence,

which is grounded upon a policy rationale.
[J-73-2020][M.O. – Donohue, J.] - 7

addressed in light of the intermediate court’s merits resolution and Appellant’s more 

limited framing of the issue presented for appeal in this Court.

Justice Mundy joins this dissenting opinion.