J-S09009-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                  Appellee               :
                                         :
          v.                             :
                                         :
RONALD HARVEY FOSTER,                    :
                                         :
                  Appellant              :     No. 505 WDA 2018

          Appeal from the Judgment of Sentence October 17, 2018
              in the Court of Common Pleas of Beaver County
            Criminal Division at No(s): CP-04-CR-0002368-2016

BEFORE:        PANELLA, P.J., LAZARUS, J. and STRASSBURGER, J.*

CONCURRING MEMORANDUM BY STRASSBURGER, J.:

FILED: September 9, 2019

      I join the Majority Memorandum, but write separately to clarify my

position regarding whether the trial court erred in permitting the jury to

review text messages between Appellant and Mathesius.             The Majority

concludes that that the trial court did not err in permitting the jury to review

the text messages because these “text messages were not a ‘recorded

confession’ within the meaning of Pa.R.Crim.P. 646(C)(2).” 1 Majority

Memorandum at 21.             However, because the text messages are not

confessions at all, I would conclude that Rule 646(C)(2) cannot apply, and

therefore there could not have been trial court error on this basis.


1 The Majority also concludes that this issue is waived because Appellant did
not object to the jury reviewing these text messages. Majority Memorandum
at 21. I agree with this position.



* Retired Senior Judge assigned to the Superior Court.
J-S09009-19


      Rule 646(C)(2) provides that “[d]uring deliberations, the jury shall not

be permitted to have … a copy of any written or otherwise recorded

confession by the defendant.” This rule specifically applies to “confessions.”

The   text   messages      between   Appellant    and   Mathesius   are   better

characterized as “voluntary, extrajudicial statements.” Commonwealth v.

Tervalon, 345 A.2d 671, 676 (Pa. 1975).                 Voluntary extra-judicial

statements “differ from confessions in that they do not acknowledge all

essential elements of a crime, [and] are generally considered to qualify for

introduction into evidence under the admission exception to the hearsay

rule.” Id. See also, 1 McCormick On Evid. § 144 (7th ed.) (distinguishing

between types of self-incriminating statements by a defendant and pointing

out that traditionally, a confession is “a statement admitting all facts

necessary for conviction of the crime at issue” while an admission is “an

acknowledgement of one or more facts tending to prove guilt but not all of

the facts necessary to do so”).

      Instantly, Rule 646(c)(2) does not prohibit all statements made by a

criminal defendant from going to the jury; rather, it prohibits “confessions.”

Thus, because the text messages would not qualify as confessions, I would

conclude the trial court could not have erred pursuant to this Rule. 2

Accordingly, Appellant is not entitled to relief on this claim.



2 It is worth noting that any item going to the jury that is not specifically
prohibited by Rule 646(c) is subject to an abuse of discretion standard. See
(Footnote Continued Next Page)

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(Footnote Continued)   _______________________

Commonwealth v. Barnett, 50 A.3d 176, 194 (Pa. Super. 2012) (pointing
out that where a “written statement … is not specifically prohibited by
Pa.R.Crim.P. 646(C), … publication to the jury falls squarely within the
discretion of the trial court and, thus, the decision cannot be overturned
absent an abuse of discretion”).

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