Com. v. Ackerman, J.

• Court: Superior Court of Pennsylvania
• Decided: December 21, 2020
• Docket: 240 WDA 2020
• Status: Unpublished

Opinion

J-A28037-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : : JACOB WILLIAM ACKERMAN : : No. 240 WDA 2020

Appeal from the Order Entered January 13, 2020 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0001961-2018

BEFORE: OLSON, J., MURRAY, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.: FILED DECEMBER 21, 2020

The Commonwealth appeals from the order entered in the

Westmoreland County Court of Common Pleas, granting in part the oral

motion in limine of Jacob William Ackerman (Appellee).1 The Commonwealth

avers: (1) it preserved a challenge to the untimely or surprising nature of

Appellee’s motion; and (2) the trial court erred in ruling evidence of rifle,

ammunition, and ballistic evidence was not admissible at trial. We affirm.

On appeal, the Commonwealth avers the following: Appellee “was a

trainee-employee at West Penn Power and its Hempfield Township,

Westmoreland County training facility.” Commonwealth’s Brief at 7. On April

28, 2018, the trainees received their employment assignments, but an

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1The Commonwealth certified in its notice of appeal that the trial court’s order substantially handicaps its prosecution of this matter. See Pa.R.A.P. 311(d). J-A28037-20

employment position was not extended to Appellee. Id. That same morning,

Appellee recorded and distributed a video of himself “to fellow students in a

group-chat message.” Id. The video showed Appellee stating, “[W]e are

going in boys,” and “I got the vest,” and showed “an AR-15 assault style rifle,

ammunition and ballistic vest.” Id. The other students alerted West Penn

Power supervisors, who then notified the police.

Pennsylvania State Police Trooper Dominick Berlin responded to West

Penn Power’s call that same morning. Trooper Berlin also interviewed

Appellee, who acknowledged he “sent the cell phone video[, but] related that

he would never hurt anyone nor think of doing so[, and] that his actions and

sending the video was not the best choice.” Affidavit of Probable Cause,

Attachment to Police Criminal Complaint, 5/11/18. According to the

Commonwealth, state troopers recovered a rifle, ammunition, and a ballistics

vest from Appellee’s residence. Commonwealth’s Brief at 8-9. An information

was filed on July 11, 2018, charging Appellee with three counts of terroristic

threats.2

Eighteen months later, on January 13, 2020, the parties appeared

before the trial court for jury selection. See Commonwealth’s Brief at 10.

Appellee, however, presented a motion in limine,3 seeking to preclude the

2 18 Pa.C.S. § 2706(a)(1)-(2).

3 There is no written motion in limine in the record or on the trial docket.

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Commonwealth from introducing both: (1) the video; and (2) the assault rifle,

ammunition, and ballistic vest depicted in the video. N.T., 1/13/20, at 2, 8.

Appellee argued, inter alia, the presence of a rifle, “right in front of the jury,”

would “enflame the jury especially . . . where we have such a veracious gun

debate [and] do nothing but make them make an emotional decision.” Id. at

3. The Commonwealth responded all of its evidence would be prejudicial

against Appellee, but the proper standard is whether evidence would be

unduly prejudicial, and the mere “fact that [evidence] would make the jury

consider [Appellee’s] guilt more heavily [does not go to] whether the Court

should keep it out.” Id. at 4-5.

On the same day, January 13, 2020, the trial court issued the underlying

order, denying in part Appellee’s motion in limine by allowing the

Commonwealth to introduce the video. However, the order granted Appellee’s

motion in part by precluding the rifle, ammunition and ballistic vest. Order,

1/14/20.4 The court found the rifle, ammunition, and ballistic vest were

relevant evidence “only insofar as [they] would tend to show that the threat

was communicated by [Appellee] with the intent to terrorize the recipients,”

and that the items “are real.” Opinion & Order of Court, 1/14/20, at 2.

However, the court also reasoned that neither Appellee’s “ability to carry out

4 The trial court’s “Opinion and Order of Court” is dated January 13, 2020, but was entered on the trial docket with a filing date of January 14th. For ease of review, we cite this filing with the January 14, 2020, docket-entry date.

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the alleged threat,” nor the video recipients’ perception as to whether “the

threat would be carried out,” is an element of the offense charged (terroristic

threats). Id. The court concluded the “limited probative value” of the

evidence was outweighed by, “in the [c]ourt’s view,” the Commonwealth’s

“attempt to arouse the jury’s sense of horror and . . . appeal to the jury’s

emotions rather than to its intellect.” Id. at 2.

The Commonwealth filed a motion for reconsideration, arguing for the

first time that it did not have “advance notice” of Appellee’s motion in limine

and thus was not prepared to respond and did not have witnesses present.5

Commonwealth’s Motion for Reconsideration, 1/27/20, at 2. The

Commonwealth further averred the trial court should have created an

evidentiary record, and not just heard oral argument, before ruling on the

motion. Id.

The trial court issued an order, noting the Commonwealth did not object

to “being surprised by [Appellee’s] motion in limine” at the time of the hearing,

and the reconsideration motion did not specify “what relevant testimony and

evidence it now seeks to present.” Order, 1/27/20. The court thus deferred

5 This motion did not challenge the merits of the evidentiary ruling. We also note this motion is dated January 15, 2020, and the trial court’s responsive order is dated January 23rd. See Commonwealth’s Motion for Reconsideration, at 3; Order, 1/27/20. However, both are entered on the trial docket with filing dates of January 27th. We cite these filings with their January 27, 2020, docket-entry dates.

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ruling on the Commonwealth’s motion pending “an offer of proof of the

testimony and evidence” relevant to the in limine ruling. Id. The

Commonwealth filed a response on February 4, 2020. Before the trial court

issued a ruling, however, the Commonwealth filed a timely notice of appeal

on February 12, 2020. It subsequently complied with the court’s order to file

a Pa.R.A.P. 1925(b) statement of matters complained of on appeal.

The Commonwealth raises the following issue for our review:

Did the trial court err when on the day this case was scheduled for trial, the court received, considered and granted [Appellee’s] Motion in Limine without an evidentiary hearing because the court determined that the firearm, ballistic vest and ammunition [Appellee] used to commit the charged crime, Terroristic Threats, was generally irrelevant to the crime and the prejudicial value resulting from the introduction of such evidence at trial outweighed its probative value, thereby barring the Commonwealth from introducing the evidence at trial[?]

Commonwealth’s Brief at 6.

The Commonwealth discussion presents two claims: (1) that it did not

waive, as the trial court suggests, a procedural challenge to Appellee’s

“surprise[ ]” motion in limine; and (2) the trial court erred in precluding from

evidence the rifle, ammunition, and ballistic vest. Commonwealth’s Brief at

19, 34. We review these seriatim.

The Commonwealth first addresses the trial court’s contention that it

“waived any procedural objections to” Appellee’s motion in limine.

Commonwealth’s Brief at 19. The Commonwealth maintains that over a year

and a half (following Appellee’s July 2018 formal arraignment), the case

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“proceeded through numerous calls of the criminal list” without any mention

by Appellee of a pre-trial motion. Id. at 20. Indeed, the Commonwealth

points out, Appellee appeared before the court on January 9, 2020, “and called

his case ready to proceed to trial on January” 13th. Id. However, at the

January 13th proceeding, Appellee hand-delivered a motion in limine, where

the Commonwealth “noted for the trial court that [it] had just received the

motion,” and the trial court likewise “recognized that it had not even seen

[Appellee’s] motion in Limine.” Id. at 21, quoting N.T., 1/13/20, at 2 (trial

court stating: “[Defense counsel], I haven’t seen your motion yet, but I will

look at it as you speak, so go ahead.”). The Commonwealth further avers the

trial court should not have ruled on the motion in limine in the absence of an

evidentiary record. See id. at 29. After careful review, we agree with the

trial court this procedural challenge is waived.

“Error may not be predicated upon a ruling that admits [ ] evidence

unless . . . a timely objection . . . appears of record, stating the specific ground

of objection, if the specific ground was not apparent from the context[.]”

Commonwealth v. Parker, 104 A.3d 17, 28 (Pa. Super. 2014), citing

Pa.R.Evid. 103(a)(1). See also Commonwealth v. Bruce, 916 A.2d 657,

671 (Pa. Super. 2007) (“[A] failure to offer a timely and specific objection

results in waiver of this claim.”).

The Commonwealth does not point to, and our review has not revealed,

any particular place in the January 13, 2020, hearing where it objected to the

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untimely or surprising nature of Appellee’s motion in limine. See also

Pa.R.A.P. 2117(c)(1), 2119(e) (where “an issue is not reviewable on appeal

unless raised or preserved below,” the statement of the case and argument

sections of an appellant’s brief must specify the place in the record where their

issue was raised before the trial court). Although both the Commonwealth

and the trial court commented they just received the motion at the hearing —

and the trial court stated it would nevertheless hear the merits therein — the

Commonwealth advanced no argument that it was unfairly surprised by the

motion, or that the court should not entertain the motion. See Parker, 104

A.3d at 28. Accordingly, we conclude this particular claim is waived.

Next, the Commonwealth contends the trial court abused its discretion

in excluding the assault rifle, ammunition, and ballistic vest recovered from

Appellee’s residence. The Commonwealth maintains this evidence was “highly

probative to establish [Appellee] threatened a mass shooting[ ] and intended

to terrorize his victims and inflict psychological distress.” Commonwealth Brief

at 36. It asserts “these items are inseparable from video itself[ as] they are

all part of the whole terroristic threat,” “[c]ontext and perspective matter,”

and that “[a]bsent the rifle, ammunition and ballistic vest, [Appellee’s] video

is pruned [sic] to merely [Appellee] laughing and stating he is ‘going in’ with

‘a vest,’ thereby substantially changing the threat communicated.” Id. at 39,

40. Finally, the Commonwealth argues the court’s finding, that the probative

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value of the evidence would be outweighed by its prejudicial effect, “was based

upon . . . mere speculation.” Id. at 50. We conclude no relief is due.

“The admission of evidence is a matter vested within the sound

discretion of the trial court, and such a decision shall be reversed only upon a

showing that the trial court abused its discretion.” Commonwealth v. Page,

965 A.2d 1212, 1219 (Pa. Super. 2009) (citation omitted). This Court has

stated:

Evidence, even if relevant, may be excluded if its probative value is outweighed by the potential prejudice. Pa.R.E. 404(b)(3).

The probative value of the evidence might be outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, pointlessness of presentation, or unnecessary presentation of cumulative evidence. Pa.R.E. 403. The comment to Pa.R.E. 403 instructs that: “‘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 cmt. Additionally, when weighing the potential for prejudice, a trial court may consider how a cautionary jury instruction might ameliorate the prejudicial effect of the proffered evidence. Pa.R.E. 404(b) cmt.

However, “[e]vidence will not be prohibited merely because it is harmful to the defendant.” “[E]xclusion is limited to evidence so prejudicial that it would inflame the jury to make a decision based upon something other than the legal propositions relevant to the case.”

Id. at 1220 (some citations omitted).

Appellant was charged under the following subsections of the terroristic

threats statute:

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(a) Offense defined.—A person commits the crime of terroristic threats if the person communicates, either directly or indirectly, a threat to:

(1) commit any crime of violence with intent to terrorize another; [or]

(2) cause evacuation of a building[.]

See 18 Pa.C.S. § 2706(a)(1)-(2). This Court has explained:

“[N]either the ability to carry out the threat nor a belief by the person threatened that it will be carried out is an essential element of the crime.” “Rather, the harm sought to be prevented by the statute is the psychological distress that follows from an invasion of another’s sense of personal security.”

Commonwealth v. Kline, 201 A.3d 1288, 1290 (Pa. Super. 2019), appeal

denied, 216 A.3d 1038 (Pa. 2019).

In the case sub judice, the trial court viewed the video at issue. Rule

1925(a) Op., 6/2/20, at 2.6 In excluding evidence of the rifle, ammunition,

and ballistic vest from presentation at trial, the court reasoned:

The [c]ourt considered the video and the parties’ arguments in balancing the probative value of the excluded items against their danger for unfair prejudice. As stated in the Commonwealth’s Answer, “it is the making of the threat with intent to terrorize that constitutes the crime,” and not [Appellee’s] “intent to carry out the threat.” On this basis the [c]ourt concluded that where [Appellee’s] alleged threat was a recorded and distributed video, presentation of the rifle, ammunition and ballistic vest depicted in the video would too likely “arouse the jury’s sense of horror and provoke its instinct to punish, and more generally be an appeal to the jury’s emotions rather than to its intellect,” and would outweigh the items’ limited probative value ____________________________________________

6 This opinion is dated May 27, 2020, but entered on the trial docket with a filing date of June 2nd.

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of [Appellee’s] intent to terrorize. The Commonwealth’s Motion for Reconsideration and Answer suggest nothing new that was not already presented by the Commonwealth at argument and considered by the Court in ruling that the danger for unfair prejudice in presenting the above items outweighs their limited probative value.

Id. at 2-3 (citations omitted). We agree with this analysis.

As the Commonwealth acknowledges, the terroristic threats charges do

not require a showing of Appellee’s ability to carry out the threat or a belief,

by the individuals who received or viewed the video, that Appellee would carry

out the threat. See 18 Pa.C.S. § 2706(a)(1)-(2); Kline, 201 A.3d at 1290;

Commonwealth’s Brief at 38. Instead, the Commonwealth must establish

Appellee communicated, “directly or indirectly, a threat to commit [a] crime

of violence with intent to terrorize another[, or] cause evacuation of a

building.” See 18 Pa.C.S. § 2706(a)(1)-(2). Where the trial court ruled the

video was admissible at trial, the court found the presentation of the rifle,

ammunition, and ballistic evidence would have “limited probative value,”

which would be outweighed by the potential prejudice of “arous[ing] the jury’s

sense of horror” and appealing to the jury’s emotions. See Trial Ct. Op. at 2-

3. The court did not abuse its discretion, and we do not disturb its order

granting in part and denying in part Appellee’s motion in limine. See Page,

965 A.2d at 1219.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/21/2020

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