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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

CONCURRING/DISSENTING MEMORANDUM BY McLAUGHLIN, J.: FILED

AUGUST 13, 2019

      I agree with the Majority that the trial court erred in finding statements

two, three, four, and five inadmissible and that the Commonwealth waived its

argument regarding the incarceration portion of statement one. I, however,

would find that the trial court abused its discretion in finding the remaining

portion of statement one inadmissible.

      In the portion of statement one that I believe was admissible,

Higginbotham stated that “he was not the person in the photograph, but he

could understand how someone . . . with no job, no resources[,] and no money

would do something like this.” N.T., 2/12/18, at 30. The trial court found the

statement had “little, if any, probative value” and that any probative value

was outweighed by the statement’s prejudicial impact. Trial Court Op., filed

May 11, 2018, at 7-8; N.T., 2/13/18, at 7-8.
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      I believe this was an abuse of discretion. In Commonwealth v. Haight,

the Commonwealth elicited testimony that the defendant was unemployed and

was “on assistance” prior to the date of the burglary at issue in the case. 525

A.2d 1199, 1200 (Pa. 1987). The Pennsylvania Supreme Court found evidence

of the defendant’s lack of employment and receipt of welfare benefits

irrelevant because it did not tend to prove or disprove any of the facts needed

to establish burglary. Id.

      However, subsequent decisions, have tempered Haight’s rule. In

Commonwealth v. Wax, 571 A.2d 386, 388 (Pa.Super. 1990), we concluded

that, notwithstanding Haight, evidence that the defendant owed specific,

significant debts at the time of the alleged crime was admissible in a

prosecution for theft by deception. Having distinguished Haight, the Court in

Wax applied “traditional considerations of relevancy” and found the evidence

admissible. Id. at 388-89. We explained that the evidence was “specific and

substantial” and therefore logically relevant, and did not raise the issues of

“stigma and unfairness such as those implicated in Haight.” Id. at 389.

      The evidence at issue here is properly admissible under Wax. The

Commonwealth did not offer generalized evidence of Higginbotham’s

unemployment or receipt of government benefits. Rather, it sought to admit

highly specific and probative evidence: Higginbotham’s own statement that he

“understood” how someone in his shoes – someone who was unemployed and

lacked money and resources – would commit burglary. The Commonwealth

thus was not offering general evidence of indigence, but rather “specific and

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substantial” evidence that raised a strong inference of motive or state of mind.

Wax, 571 A.2d at 388. Under Wax, the rule of Haight does not apply, and

we instead gauge “traditional considerations of relevancy.” Id.

      I would hold that the evidence was admissible because the risk of unfair

prejudice did not outweigh the evidence’s probative value. See Pa.R.E. 401,

403. Higginbotham’s own words that he could “understand” why someone in

his circumstances would commit a burglary tend not only to show that he had

the motive and intent to commit the crime, but also to demonstrate his

consciousness of guilt. After all, Higginbotham made the statement in

response to police questioning about a particular crime; it was not in the

context of an unrelated conversation. This statement thus had a strong

tendency to make a fact of consequence “more or less probable than it would

be without the evidence.” See Pa.R.E. 401. See also Commonwealth v.

Hairston, 84 A.3d 657, 670 (Pa. 2014) (“Evidence of motive is admissible.”).

      In addition, the statement’s probative value was not outweighed by the

risk of unfair prejudice. See Pa.R.E. 403. The statement was “not intended to

stigmatize [A]ppellant on the basis of his economic status.” Wax, 571 A.2d at

388. Rather, as in Wax, the Commonwealth offered specific, substantial

evidence – Higginbotham’s own admission that “he could understand how

someone” in the same position as him would commit the crime charged – from

which the jury could rightly infer motive, state of mind, and consciousness of

guilt. On balance, I do not believe it would have been unfairly prejudicial to

let the jury know that Higginbotham had made the comment.

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