J-A27005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellant             :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 BYRON HIGGINBOTHAM                      :   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


Appellee his Miranda1 rights, 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).

                                           -2-
J-A27005-18


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.




                                           -3-
J-A27005-18


       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).

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

                                           -4-
J-A27005-18


      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


                                      -5-
J-A27005-18


“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.


                                           -6-
J-A27005-18


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

                                        -7-
J-A27005-18


       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



                                           -8-
J-A27005-18


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.



                                           -9-
J-A27005-18


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


                                      - 10 -
J-A27005-18


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,


                                     - 11 -
J-A27005-18


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).

                                          - 12 -
J-A27005-18


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


                                    - 13 -
J-A27005-18


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




____________________________________________


8The 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.


                                          - 14 -
J-A27005-18


       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



____________________________________________


9The 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.

                                          - 15 -
J-A27005-18


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.




                                     - 16 -
J-A27005-18


        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.


                                       - 17 -
J-A27005-18


     Judge Stabile joins the memorandum.

     Judge McLaughlin files a concurring and dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/13/19




                                 - 18 -
