Commonwealth v. Thomas, L., Aplt. ( 2019 )

[J-85-2018] [MO: Dougherty, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 760 CAP
:
Appellee : Appeal from the Judgment of
: Sentence entered on June 16, 2017
: in the Court of Common Pleas,
v. : Lancaster County, Criminal Division at
: CP-36-CR-0004095-2015. (Post
: Sentence Motions denied on June 28,
LEETON JAHWANZA THOMAS, : 2017.)
:
Appellant : ARGUED: December 4, 2018
CONCURRING OPINION
JUSTICE WECHT DECIDED: August 20, 2019
In this appeal from the judgment of sentence for two counts of first-degree murder
and one count of attempted murder, Leeton Jahwanza Thomas challenges several
evidentiary rulings which the Majority affirms. In particular, Thomas challenges: (1) the
manner in which the trial court assessed the competency of a testifying victim; (2) the trial
court’s conclusion that this witness was competent; (3) the trial court’s refusal to permit
Thomas to introduce the testimony of an expert in the reliability of eyewitness
identification; and (4) the trial court’s refusal to preclude mention of Thomas’ immigration
status.
I agree with the Majority’s decision to affirm Thomas’ judgment of sentence.
Nonetheless, on several points underlying that decision, my reasoning differs from the
Majority’s. In particular, as I discuss below, with respect to the Majority’s sufficiency
analysis (Section I), I concur only in the result, as I would hesitate to consider P.S.’s out-
of-court identification of Thomas. As well, I concur only in the result regarding the
Majority’s conclusion (Section II(A)) that the trial court committed no abuse of discretion
in holding a competency colloquy as opposed to a competency hearing or evaluation.
With respect to the Majority’s conclusions that the trial court’s competency colloquy was
adequate and that the trial court’s competency determination is entitled to deference
(Section II(B)), I concur in the result on harmless error grounds. With regard to the
Majority’s determination that the trial court may have abused its discretion in admitting
evidence of Thomas’ immigration status (Section IV), I would conclude with certainty that
there was an abuse of discretion, but , in light of the entire case against Thomas, this
error was harmless. I join fully in Sections III, V and VI of the Majority Opinion.
I turn first to the competency questions, which the Majority discusses in Sections
II(A) and II(B). Generally, the competency of a witness is a question for the trial court,
whose determination we will not disturb absent an abuse of discretion. Commonwealth
v. Dowling, 883 A.2d 570, 576 (Pa. 2005). In Pennsylvania, a witness generally is
presumed to be competent to testify, and it is incumbent upon the party challenging the
testimony to establish the witness’ incompetency by clear and convincing evidence.
Commonwealth v. Delbridge, 855 A.2d 27, 40 (Pa. 2003); Commonwealth v. Ware, 329
A.2d 258, 267 (Pa. 1974); Commonwealth v. Anderson, 552 A.2d 1064, 1067 (Pa. Super.
1988); Pa.R.E. 601(a). That an individual’s mental condition is impaired does not, in and
of itself, render that individual incompetent as a witness. Ware, 329 A.2d at 267
(“Incompetency does not follow from the fact that the witness is insane or mentally ill.”).
The competency considerations that apply to an adult witness with the mental capacity of
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a child are the same as the competency considerations that apply to a child witness. See
Id. at 269; Anderson, 552 A.2d at 1068; Pa.R.E. 601(b).1
When a witness is more than fourteen years of age, the general rule presuming
competency applies. When the witness is a child under the age of fourteen, however, the
general rule presuming competency does not apply.2 Rather, when the witness is under
the age of fourteen, “there must be judicial inquiry as to mental capacity, which must be
more searching in proportion to chronological immaturity.” Rosche, 156 A.2d at 310.
Because children are “peculiarly susceptible to the world of make-believe and of
suggestions,” the trial court must determine “(1) such capacity to communicate, including
as it does both an ability to understand questions and to frame and express intelligent
answers, (2) mental capacity to observe the occurrence itself and the capacity of
remembering what it is that [the witness] is called to testify about[,] and (3) a
consciousness of the duty to speak the truth.” Id.; Commonwealth v. Penn, 439 A.2d
1 The rule codifies this alignment as follows:
A person is incompetent to testify if the court finds that because of a mental
condition or immaturity the person:
(1) is, or was, at any relevant time, incapable of perceiving accurately;
(2) is unable to express himself or herself so as to be understood either
directly or through an interpreter;
(3) has an impaired memory; or
(4) does not sufficiently understand the duty to tell the truth.
Pa.R.E. 601(b).
2 Rosche v. McCoy, 156 A.2d 307, 310 (Pa. 1959); see Commonwealth v. Walter,
93 A.3d 442, 451 (Pa. 2014) (“[w]here a child under the age of 14 is called to testify as a
witness, the trial court must make an independent determination of competency. . . .”);
Commonwealth v. Smith, 167 A.3d 782, 789 (Pa. Super. 2017) (“[t]he presumption does
not arise where a child witness is under age fourteen”).
[J-85-2018] [MO: Dougherty, J.] - 3
1154, 1158 (Pa. 1982); see also Commonwealth v. Fultz, 462 A.2d 1340, 1343 (Pa.
1983). “[W]here a child under the age of 14 is called to testify as a witness, the trial court
must make an independent determination of competency.” Commonwealth v. Walter, 93
A.3d 442, 451 (Pa. 2014).
Accordingly, the jurisprudence of this Commonwealth suggests a straightforward
syllogism. The same competency considerations apply to witnesses who are
intellectually disabled as apply to children under the age of fourteen. Children under the
age of fourteen are not presumed to be competent, but must be subjected to an
independent judicial determination of competency. Therefore, it would appear that
witnesses who are intellectually disabled likewise are not presumed to be competent, but
must have their competency judicially established.
Competency may be established be through a competency colloquy, during which
the trial court can consider the witness’ responses to specifically targeted questions,
complemented by the court’s own observations of the witness, including the witness’
demeanor, alertness, thoughtfulness, sincerity, and general responses and testimony.
Dowling, 883 A.2d at 577. If the trial court’s observations of the witness leave the court
with doubts about the witness’ competency, the trial court may conduct a competency
hearing or, if warranted for compelling reasons, a competency investigation.
Commonwealth v. Koehler, 737 A.2d 225, 239 (Pa. 1999); Commonwealth v. Kosh, 157
A. 479, 482 (Pa. 1931); Commonwealth v. Alston, 864 A.2d 539, 549-50 (Pa. Super.
2004).
Here, the trial court chose to conduct a competency colloquy, after which it
concluded that the witness, P.S., was competent. Ultimately, I agree with the Majority
[J-85-2018] [MO: Dougherty, J.] - 4
that the trial court enjoyed the discretionary authority to assess competency through a
competency colloquy rather than, as Thomas requested, a competency hearing or a
competency investigation. Nonetheless, I am uneasy in two respects with the manner in
which the trial court established competency in this case.
First, our precedent regarding the defendant’s burden to establish a witness’
incompetency is not clear. Because the competency considerations are the same when
the witness is under the age of fourteen and when the witness has the mental capacity of
a child, and because competency in these scenarios is not presumed but must be
established through a searching judicial inquiry, I question whether the burden remained
on Thomas to establish P.S.’s incompetency.
To the extent that the burden remained with Thomas, I question how Thomas could
meet it. Doing so would require Thomas to establish that P.S. did not have the capacity
to communicate, including the ability to understand questions and to express intelligent
answers; to establish that P.S. lacked the mental capacity to observe the occurrence
itself; to establish that P.S. lacked the capacity to remember the facts about which she
was called to testify; or to establish that P.S. was not conscious of her duty to speak the
truth. See Rosche, 156 A.2d at 310.
But if the decision of competency is developed solely through the trial court’s own
observations of the witness, rather than through the production of evidence or questioning
by counsel, how does a defendant establish the witness’ incompetency to testify? Placing
the burden upon the defendant while providing no opportunity to sustain this burden
effectively provides only an illusory opportunity to demonstrate incompetency. The
precedent of this Commonwealth provides no guidance on this question.
[J-85-2018] [MO: Dougherty, J.] - 5
Second, in addition to providing limited guidance to defendants attempting to
demonstrate a witness’ incompetency, our precedent likewise provides scant instruction
for trial courts in determining how to assess competency. A court is not required to hold
a competency hearing merely because the defendant requests it. And, as the Majority
correctly observes, a trial court is not required to order an investigation of a witness’
competency unless the trial judge has some doubt about competency after having
observed the witness. Maj. Op. at 8; Commonwealth v. Counterman, 719 A.2d 284, 295
(Pa. 1998). But our precedent does not suggest when a hearing, rather than a colloquy,
is warranted, or what proffer the defendant is required to make in order to obtain either of
them.
These concerns animate my discomfort with the trial court’s denial of Thomas’
request for a competency hearing in this case. Thomas initially requested a competency
hearing following his receipt of discovery indicating that P.S. suffered from a multitude of
developmental limitations, physical and mental handicaps, and a learning disability, as
well as a report that P.S. was described as being “a few years behind” in terms of mental
capacity. Motion for Competency Hearing and Related Discovery, 3/6/2017 at 2. After
Thomas received P.S.’s educational records, Thomas filed a supplemental motion for a
competency evaluation, informing the court of P.S.’s intelligence quotient (“I.Q.”) and
requesting a defense evaluation of the witness.
The Majority affirms the trial court’s denial of these requests, opining that Thomas
did not demonstrate “a compelling need” for a competency hearing or the necessity for
an evaluation by a defense expert. Maj. Op. at 9. I question again how Thomas could
have demonstrated such a “compelling need” for a competency hearing. The records
[J-85-2018] [MO: Dougherty, J.] - 6
that Thomas was able to obtain suggested that P.S.’s competency as a witness was
questionable. Without a hearing or further discovery, what means could Thomas deploy
to demonstrate the “compelling need” burden that the Majority imposes?
When Thomas gained access to P.S.’s educational records, he learned that P.S.
had an I.Q. of forty-six. The Majority holds that this information failed to demonstrate “the
necessity” for the requested defense examination. Maj. Op. at 9. This may be so, but,
again, I am left to wonder what would establish the necessity for a defense examination
of the witness in the absence of a pretrial competency hearing, which the trial court also
had denied.
Evidence that P.S. had an I.Q. of forty-six certainly constituted credible evidence
that P.S. was or might be intellectually disabled. In our capital jurisprudence, for example,
a capital defendant attempting to demonstrate his ineligibility for the death penalty on the
grounds of intellectual disability would have to establish significantly sub-average
intellectual functioning.3 For such a capital defendant, this is established through I.Q.
scores that are approximately two standard deviations (or thirty points) below the mean
score of one hundred. Hackett, 99 A.3d at 27.4 Although there is no “cut-off I.Q.” for
intellectual disability, because it is the interaction between limited intellectual functioning
3 The standards set forth in the Diagnostic and Statistical Manual of Mental
Disorders and by the American Association on Intellectual and Developmental Disabilities
require the defendant to have: (1) limited or sub-average intellectual functioning; (2)
significant adaptive limitations; and (3) an age of onset prior to his or her 18th birthday.
Commonwealth v. Mason, 130 A.3d 601, 653 n.61 (Pa. 2015); Commonwealth v. Hackett,
99 A.3d 11, 27 (Pa. 2014); Commonwealth v. Gibson, 925 A.2d 167, 169 (Pa. 2007).
4 See also Courtney Johnson, “Moore” than Just a Number: Why IQ Cutoffs Are an
Unconstitutional Measure for Determining Intellectual Disability, 91 S. CAL. L. REV. 753,
761 (2018).
[J-85-2018] [MO: Dougherty, J.] - 7
and deficiencies in adaptive skills that establish intellectual disability, Commonwealth v.
Keaton, 45 A.3d 1050, 1080 (Pa. 2012), an I.Q. score between seventy and seventy-five,
together with significant deficits in adaptive functioning, places a defendant in the mild
intellectual disability range. Commonwealth v. Williams, 61 A.3d 979, 992 (Pa. 2013).
Moreover, the American Psychiatric Association Diagnostic and Statistical Manual of
Mental Disorders, fifth edition, (“DSM-5”) designates classifications of intellectual
disability into degrees: profound (I.Q. below twenty to twenty-five), severe (I.Q. of twenty
to twenty-five through thirty-five to forty), moderate (I.Q. of thirty-five to forty through fifty
to fifty-five), and mild (I.Q. of fifty to fifty-five through seventy to seventy-five).
Because evidence that P.S. had an I.Q. of forty-six suggested that she was or
might be intellectually disabled, it was incumbent upon the trial court to assess the
witness’ competency. My misgivings about the state of our precedent arise from its lack
of clarity: we impose the burden upon a defendant to establish the incompetence of a
Commonwealth witness while, at the same time, failing to provide guidance or the means
to do so effectively. I cautiously conclude that, as our law now stands, the trial court here
had the discretion to assess competency, and the need for a further hearing or evaluation,
at a competency colloquy.
But this only begs the next question. What about the colloquy itself? The Majority
holds that the trial court committed no abuse of discretion in either the manner in which it
conducted the competency colloquy or in its conclusion that P.S. was competent to testify.
Maj. Op. at 15-16. I am unable to agree with either of these conclusions.
The trial court was bound to examine P.S.’s capacity to communicate, including
her ability to understand questions and to frame and express intelligent answers. The
[J-85-2018] [MO: Dougherty, J.] - 8
competency colloquy reveals that P.S. repeatedly struggled to provide audible, verbal
answers to many of the questions asked by the trial court and by counsel for both the
Commonwealth and Thomas. Although the trial court later explained that it had no
difficulty understanding P.S., the court did not focus its inquiry in any respect upon P.S.’s
ability to communicate intelligently.
Nor did the trial court inquire in any respect into P.S.’s mental capacity to perceive
the occurrence itself. With respect to P.S.’s capacity for remembering what it was that
she was called to testify about, P.S. indicated in the affirmative that she would be able to
answer questions about what she remembered from the night she was stabbed. When
defense counsel asked whether P.S. remembered that night, she indicated that she did,
“kind of, sort of.” Notes of Testimony (“N.T."), 6/8/2017, at 253. When P.S. answered
that she “kind of” was able to tell time, the trial court sustained the Commonwealth’s
objection. Id. The trial court also sustained the Commonwealth’s objection to defense
counsel’s inquiry into whether P.S. could recall what she was doing the prior Monday. Id.
By sustaining the Commonwealth’s objections, the trial court appears to have
denied the defense a full and fair opportunity for cross-examination, while simultaneously
giving the Commonwealth free rein in the scope of its own questioning of P.S. By
hamstringing the defense’s ability to participate in the colloquy through meaningful cross-
examination, the trial court ensured that Thomas would be unable to meet his burden of
establishing incompetency. This limitation of cross-examination was particularly
problematic here because the trial court had denied the request for a competency
hearing: Meaningful cross-examination was the only means by which Thomas could
probe further into P.S.’s competency. It was not the content of any particular answer to
[J-85-2018] [MO: Dougherty, J.] - 9
the question about whether P.S. remembered what she was doing last Monday, for
example, that would have been directly relevant (as nothing that happened that Monday
was alleged to be relevant to the case). Rather, P.S.’s answer to this question may well
have been revealing in and of itself, or may have led to further questioning regarding
P.S.’s ability to recall past events with accuracy. The trial court should have permitted
trial counsel the latitude to explore such door-opening questions. Its failure to do so was,
I believe, an abuse of discretion.
Finally, the trial court limited examination of P.S.’s consciousness of the duty to
speak the truth. P.S. acknowledged through one or two word answers that, if something
is not the truth, it would be a lie, and that, if the trial court stated that the prosecutor was
wearing an orange suit, this too would be a lie. N.T., 6/8/2017, at 266-67. P.S. also
promised to tell the truth. When defense counsel attempted to ask whether P.S.
understood what was meant when she gave an oath to tell the truth, the trial court
sustained the Commonwealth’s objection, stating that it was satisfied that P.S.
understood the difference between the truth and a lie and that P.S. had promised to tell
the truth. Id. at 252. The trial court did not ask whether P.S. understood why it was
important to tell the truth. If the burden remained solely with Thomas, then his counsel’s
ability to engage in meaningful cross-examination was paramount. By limiting defense
counsel’s door-opening questions, the trial court precluded the only way in which Thomas
possibly could meet his burden to prove that the witness was not competent. If the
determination of competency is within the trial court’s discretion and is a product of the
trial court’s own observations of the witness, then failing to permit counsel to engage in
[J-85-2018] [MO: Dougherty, J.] - 10
meaningful cross-examination undermines the deference to which the trial court’s
decision otherwise would be entitled.
The trial court failed to conduct a searching judicial inquiry, and failed to afford
defense counsel the latitude that would be necessary to sustain Thomas’ burden of
demonstrating incompetency (if, indeed, the burden remained with Thomas under these
circumstances). Under these circumstances, the appellate court cannot reliably defer to
the trial court’s finding that the witness was competent. To be sure, it is possible that P.S.
was competent to testify; the record that the trial court has given us here simply is
insufficient to allow us to make that determination.
Nonetheless, it is well-settled that a trial error is harmless when the appellate court
is convinced beyond a reasonable doubt that the error could not have contributed to the
verdict. An error will be deemed harmless if: “(1) the error did not prejudice the defendant
or the prejudice was de minimis; (2) the erroneously admitted evidence was merely
cumulative of other untainted evidence which was substantially similar to the erroneously
admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was
so overwhelming and the prejudicial effect of the error was so insignificant by comparison
that the error could not have contributed to the verdict.” Commonwealth v. Mitchell, 902
A.2d 430, 457 (Pa. 2006) (quoting Commonwealth v. Robinson, 721 A.2d 344, 350 (Pa.
1998)). The Commonwealth bears the burden to prove harmlessness beyond a
reasonable doubt. Id.
Although identification by an eye witness (here, P.S.) is compelling evidence of
guilt, if we put it aside for the moment we must nonetheless conclude that the remaining
evidence against Thomas was overwhelming. As the Majority ably recounts in its
[J-85-2018] [MO: Dougherty, J.] - 11
sufficiency analysis, the record established Thomas’ motive for the murders and
attempted murder, as Thomas was charged with assaulting two of Lisa Scheetz’s
daughters and was scheduled to be arraigned just two weeks later. In addition, the
Commonwealth obtained DNA evidence from one of the victims on Thomas’ shoe, and
introduced evidence of the clothing and rope found in bleach water at Thomas’ house,
the gloves and camouflage cloth that had clogged Thomas’ toilet, as well as evidence
that two bloodhounds independently tracked a trail from the crime scene to Thomas’
residence. Considering the totality of this overwhelming evidence of Thomas’ guilt, I
would conclude that the trial court’s error in finding P.S. to be competent was harmless.5
I turn now to Thomas’ argument that the trial court abused its discretion when it
permitted the Commonwealth to introduce evidence that Thomas may have been subject
to deportation, an issue that the Majority resolves in Section IV. In April 2015, Thomas
was charged with sexual assault for molesting two of Ms. Scheetz’s daughters. At the
time, Thomas was a lawful immigrant and green card holder. Apparently, the
Commonwealth believed that, if Thomas was convicted of the sexual assault charges
involving Ms. Scheetz’s daughters, he would not only be subject to the direct criminal
consequences of a conviction, including incarceration, but could also be subject to
5 Although P.S. identified Thomas as her assailant shortly after the murders and
assault, I would not rely on this evidence (either as part of the Majority’s sufficiency review
in Section I or pursuant to my harmless error analysis) because of my skepticism about
P.S.’s competency. Testimonial competency requires mental capacity at the time of the
events to which the witness testifies. Ware, 329 A.2d at 268. As set forth above, the
ability to perceive is an essential element of testimonial competency. Id. A witness’
testimony must be supported by her capacity to have observed the occurrence and to
remember the relevant facts. Rosche, 156 A.2d at 310-11. In this case, I am unconvinced
of P.S.’s testimonial competence and, for the same reasons, would not afford her out-of-
court statements any weight in our appellate review.
[J-85-2018] [MO: Dougherty, J.] - 12
deportation. Thomas was scheduled to be arraigned on the sexual assault charges on
June 26, 2015. The murders were committed on June 11, 2015.
Over defense counsel’s objection, the prosecutor presented argument to the jury
that, had Thomas been convicted of the sex offenses, he could have been deported to
Jamaica. Pennsylvania State Police Corporal Todd McCurdy also made mention of this
collateral consequence in his testimony. N.T., 6/12/2017, at 661-662.
In its subsequent opinion, the trial court explained that the possibility of deportation
was a key piece of evidence of Thomas’ motive for the murders and attempted murder.
Because Thomas committed the murders before he was arraigned on the sexual assault
charges, the trial court believed that this “clearly establishes [Thomas’] motive for the
killing.” Tr. Ct. Op. at 5. Today’s Majority approves, holding that “there was sufficient
ground to establish [Thomas’] immigration status and potential deportation was a possible
motive, among other possible motives to commit the killings.” Maj. Op. at 23. Though
the Majority agrees that this evidence was probative, it simultaneously faults Thomas for
failing to establish the prejudicial impact of this evidence. Id. at 22. On both points, I
disagree.
Undoubtedly, immigration status is potentially relevant to motive.6 But that is not
the end of the matter. Relevant evidence may be excluded “if its probative value is
outweighed by a danger of . . . unfair prejudice.” Pa.R.E. 403. In this case, the marginal
probative value of this evidence was outweighed by the potential of unfair prejudice.
6 See Commonwealth v. Philistin, 53 A.3d 1, 16-17 (Pa. 2012) (holding that the
appellant’s immigration status was relevant to show that he had a motive to shoot the
officers, lest he be deported, even if the Commonwealth emphasized other potential
motives).
[J-85-2018] [MO: Dougherty, J.] - 13
The probative value of this evidence was based purely upon speculation. There
was no evidence whatsoever to establish that Thomas’ immigration status and potential
deportation was, in fact, a motive, or even a possible motive. Evidence of motive must
entail sufficient basis to believe that the crime actually grew out of or was in some way
caused by the prior set of facts and circumstances. See, e.g., Commonwealth v.
Schwartz, 285 A.2d 154, 158 (Pa. 1971). By contrast, argument and testimony that
Thomas committed the murders to avoid possible deportation that may have resulted as
a consequence of conviction on the sexual assault charges is purely speculative. There
was no evidence at this trial indicating or suggesting that the murders actually grew out
of or were in some way caused by Thomas’ concern over possible deportation.
As the Majority observes, the Commonwealth could have presented evidence that
Thomas was aware of the deportation consequence of being convicted of the sexual
assault charges. Maj. Op. at 24. It presented none. Instead, the Commonwealth now
simply asserts that, as a green card holder, Thomas would have known of the conditions
of his residency, and the possibility of deportation if he was convicted. This may very well
be true. But we are a court, not a street corner. We deal in evidence, not speculation.
The Commonwealth introduced no evidence to substantiate its speculation. Presumably,
and without insuperable difficulty, the Commonwealth could have presented evidence
that, for example, all green card holders are informed of the deportation consequences
of a criminal conviction. It was incumbent upon the Commonwealth to link the putative
deportation consequences to the murders through something more than guesswork.
The Commonwealth cannot manufacture a motive and attribute it to a criminal
defendant without any evidentiary basis. Yet this is exactly what the Commonwealth did
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in this case. There may be ─ and there often are ─ collateral consequences that result
from a criminal conviction. It does not follow that the Commonwealth can assert without
basis that those consequences were the motive for a subsequent crime. In addition to
possible deportation proceedings, a number of other collateral consequences may ensue
from a criminal conviction. For example, a criminal defendant may lose the right to vote,
may be subject to reporting obligations following incarceration, may have difficulty
obtaining employment or housing, may forfeit a professional license, may lose the right
to own a firearm, may suffer the loss of public benefits or student loans, and may become
ineligible for jury duty. This list of possibilities does not empower the Commonwealth to
stand before a jury and argue that the defendant committed a crime in order, for example,
to avoid losing the right to vote that would have resulted from a conviction for a prior
crime. Avoidance of a lengthy term of incarceration is motive aplenty, without resort to
unfounded speculation that the defendant was extra-motivated to commit the subsequent
crime to avoid various collateral consequences that also would attach. Even granting the
Commonwealth the benefit of the doubt that Thomas’ immigration status bore some
potential relevance, its speculative connection to the facts renders its probative value
marginal at best.
By contrast, the danger of unfair prejudice resulting from evidence of Thomas’
immigration status was high. Although the Majority is correct that Thomas has not
developed the basis for his assertion of prejudice, see Maj. Op. at 22, I disagree that the
prejudicial impact of this evidence is not self-evident. To the contrary, by parading a
Jamaican national’s immigration status in front of the jury without any basis to suggest
that this factored into the defendant’s motive, the Commonwealth introduced an argument
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that reasonably could be perceived as pandering to or capitalizing upon the potential of
anti-immigrant sentiment. Under these circumstances, we should have little hesitation in
concluding that the danger of prejudice outweighed the marginal probative value.
Nonetheless, and notwithstanding these infirmities, it cannot be doubted that the evidence
of Thomas’ guilt was overwhelming. Accordingly, this error, too, was harmless. Accord
Maj. Op. at 22.
Subject to all of the disagreements that I have discussed above, I concur in the
Majority’s affirmance of Thomas’ judgment of sentence.
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