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


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


                                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.
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] - 2
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] - 3
              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] - 4
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] - 5
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] - 6
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] - 7
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] - 8
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] - 9
          Mr. Chief Justice Castille, Mr. Justice Eakin, Madame Justice Todd and Mr.

Justice Stevens join the opinion.


          Mr. Justice Saylor joins this dissenting opinion.




                                    [J-19-2014] - 10
