Commonwealth v. Yale, E., Aplt.

• Court: Supreme Court of Pennsylvania
• Decided: April 29, 2021
• Docket: 9 MAP 2020
• Status: Published

Opinion

[J-73-2020] [MO: Donohue, J.] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 9 MAP 2020 : Appellee : Appeal from the Order of the : Superior Court dated August 9, : 2019 at No. 472 MDA 2018 v. : Affirming the Judgment of Sentence : of the Luzerne County Court of : Common Pleas, Criminal Division, ERIC YALE, : dated November 17, 2017 at No. : CP-40-CR-0001152-2017. Appellant : : ARGUED: September 16, 2020

DISSENTING OPINION

JUSTICE DOUGHERTY DECIDED: April 29, 2021 I respectfully dissent. The record is clear appellant and Larry Thompson were co-

defendants, and both were charged under “principal and accomplice theories of liability.”

Majority Opinion at 3; see Commonwealth v. Yale, 472 MDA 2018, 2019 WL 3763966 at

*1 (Pa. Super. Aug. 9, 2019) (unpublished memorandum) (“The Commonwealth charged

[appellant] and Thompson under accomplice and principal theories of liability.”); see also

Pa.R.A.P. 1925(a) Opinion, no. 1152-2017 (Luzerne Co.) at 1, n.1 (“Counts one and two

of the [i]nformations against both [d]efendants charged each as a principal and

accomplice.”); see also Appellant’s Brief at 6 (identifying “Larry Thompson” as appellant’s

“co-defendant”); see id. at 9 (officer identified “Thompson” at trial as appellant’s “co-

defendant”) (citing N.T. Trial, 9/26/17 at 84). The learned majority ultimately determines

evidence of Thompson’s prior methamphetamine offenses was admissible as relevant to

appellant’s potential defense that Thompson alone was guilty. The majority does so in partial reliance on the holding in a constructive possession case. Majority Opinion at 22,

n.14, citing Commonwealth v. Devon Thompson, 779 A.2d 1195 (Pa. Super. 2001) (prior

drug arrests of driver, who was not charged, admissible at trial of backseat occupant

charged with possession of drugs found in backseat). I must respectfully disagree. In

my view, Devon Thompson is inapposite because the driver in that case was not charged

as a principal or an accomplice, and the theory against the defendant was constructive

possession. Here, both men were charged with manufacturing methamphetamine and

the jury was aware of that fact. I agree with the trial court which determined the evidence

appellant’s co-defendant had prior methamphetamine offenses was irrelevant to

appellant’s potential defense to accomplice liability. This evidence may have been

confusing to the jury given both men were found in the room containing the components,

and appellant admitted he knew the components found in his bedroom were for the

manufacture of methamphetamine. See Pa.R.A.P. 1925(a) Opinion at 9-10; Yale, 2019

WL 3763966 at *1 (“While in custody . . . [appellant] admitted the items were found in his

bedroom and were there to manufacture methamphetamine.”).

As the majority recognizes, evidence is relevant if it has a tendency to make any

fact more or less probable than it would be without the evidence; and the fact is of

consequence in determining the action. See Majority Opinion at 2, n.2, citing Pa.R.E.

401. In my view, the fact of Thompson’s prior offenses does not make it any more

probable that he acted alone in this case, or any less probable that appellant acted as

his accomplice, particularly since the components and equipment for producing

methamphetamine via the “one pot” method were found in a room occupied and used by

both appellant and Thompson, and appellant was aware the components and equipment

were for manufacturing methamphetamine. This was not a simple possession case.

Certainly, appellant had the right to mount a defense asserting he did not agree with,

[J-73-2020] [MO: Donohue, J.] - 2 acquiesce to, or participate in his co-defendant’s actions, but evidence of his co-

defendant’s prior methamphetamine offenses does not make that asserted fact-based

defense any more or less probable. Thompson’s prior offenses were a fact of no

consequence at appellant’s trial charging accomplice liability and thus, not relevant. Even

if it could be shown Thompson acted “alone” with respect to his prior offenses, that “fact”

does not properly tend to show he probably acted “alone” in the current case.

I also wish to distance myself from the majority’s rejection of the Commonwealth’s

assertion regarding the plain language of Rule 404(b)(1) which states “(1) Prohibited

Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s

character in order to show that on a particular occasion the person acted in accordance

with the character.” Pa.R.E. 404(b)(1)(emphasis added).1 The Commonwealth asserts

the rule applies to any person, not just a defendant: “Contrary to a recent view, the

Commonwealth submits that there is no such thing as ‘reverse 404(b)’ evidence. The

Rule speaks about a person’s character being inadmissible unless it is offered to show

motive, plan, identity, or a common plan or scheme. There is not a different standard

contemplated by the Rule depending on which party, the Commonwealth or defendant,

offers the evidence.” Commonwealth’s Brief at 6-7 (emphasis added).

The majority creates a different standard. It concludes “third person guilt” is

governed by Rules 401-403, and “[t]he prejudice-deterring” standards contained in Rule

404(b)(2) cannot be applied to evidence that does not create prejudice or diminish the

presumption of innocence. Majority Opinion at 34.

1Of course Rule 404(b)(2) lists permitted uses of such evidence “for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Pa.R.E. 404(b)(2).

[J-73-2020] [MO: Donohue, J.] - 3 So called “reverse 404(b)” evidence describes evidence of other crimes or acts of

a third person to raise a doubt as to a defendant’s guilt, and the majority holds such

evidence should not be held to the rigorous admissibility requirements and prejudice

concerns attendant to the use of such evidence against a defendant. The bedrock inquiry

for admissibility of such evidence, the majority concludes, “requires nothing more than

the traditional inquiries prompted by our rules of evidence.” Id.at 32. The majority

reduces these inquiries to whether the third person guilt evidence has a tendency to make

the defendant’s culpability more or less probable than it would be absent the evidence,

and whether the probative value of the third person guilt evidence is outweighed by

danger of confusing the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence. Id. at 32-33, citing Pa.R.E. 401, 403; United

States v. Stevens, 935 F.2d 1380, 1384 (3d Cir. 1991); United States v. Aboumoussallem,

726 F.2d 906, 911 (2d Cir. 1984). In arguendo, despite the majority view that the strictures

upon admissibility of evidence of other bad acts of a “person” as plainly stated in Rule

404(b)(1) essentially apply only to a defendant and not a third person, I am still of the

view the instant evidence was inadmissible because the evidence did not have a

tendency to make appellant’s culpability as an accomplice more or less probable, and its

admission was outweighed by danger of confusing the issues and misleading the jury as

the trial court properly determined.

Accordingly, I respectfully dissent.

[J-73-2020] [MO: Donohue, J.] - 4