Commonwealth v. Jemison Jr., D., Aplt. , 626 Pa. 489 ( 2014 )

[J-19-2014]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 17 WAP 2013
:
Appellee : Appeal from the Order of the Superior
: Court entered January 4, 2013 at No. 1588
: WDA 2011, affirming the Judgment of
v. : Sentence of the Court of Common Pleas of
: Allegheny County entered August 31, 2011
: at No. CP-02-CR-0009708-2010.
DUANE JEMISON, JR., :
: ARGUED: April 8, 2014
Appellant :
OPINION
MR. JUSTICE McCAFFERY DECIDED: AUGUST 18, 2014
In this case, we consider the continued viability of Commonwealth v. Stanley, 446
A.2d 583 (Pa. 1982), wherein we held that the prosecution is not required to accept a
defendant's offer to stipulate to the fact of a prior conviction when the conviction is an
element of the offense charged. Concluding that Stanley remains the law of this
Commonwealth, despite the United States Supreme Court's holding in Old Chief v. United
States, 519 U.S. 172 (1997), we affirm the Superior Court's order affirming the judgment
of sentence imposed on Duane Jemison, Jr. ("Appellant").
In the early morning hours of May 16, 2010, a Pittsburgh police officer on foot
patrol came upon Appellant's car which was parked improperly in a legally marked
handicapped parking spot. Upon running the car's license plate number through his
vehicle’s computer, the officer discovered that the car had been carjacked a few days
before. As other officers arrived at the scene, Appellant entered the car and started to
drive away, but was immediately stopped by a police vehicle in his path. The officers
ordered Appellant to get out of the car. He did not comply, but rather moved one of his
hands downward toward the floorboard, where one of the officers then observed a gun.
The officers apprehended Appellant from the vehicle, and recovered from the floorboard
a gun with the hammer back, the safety off, and a round in the chamber.
Appellant was charged with persons not to possess a firearm, carrying a firearm
without a license, resisting arrest, and two counts of receiving stolen property.1 He was
tried by jury for persons not to possess a firearm, 18 Pa.C.S. § 6105(a)(1), after this
charge had been severed from the others. To establish Appellant's guilt of this charge,
the Commonwealth was required to prove that Appellant had been previously convicted
of a statutorily enumerated offense that barred him from possessing a firearm, and that he
had, indeed, possessed a firearm.2 It was undisputed that, in 2008, Appellant had been
1 Respectively, 18 Pa.C.S. §§ 6105(a)(1), 6106, 5104, and 3925.
2
§ 6105. Persons not to possess, use, manufacture, control, sell or
transfer firearms
(a) Offense defined.--
(1) A person who has been convicted of an offense enumerated in
subsection (b), within or without this Commonwealth, regardless of the
length of sentence or whose conduct meets the criteria in subsection (c)
shall not possess, use, control, sell, transfer or manufacture or obtain a
license to possess, use, control, sell, transfer or manufacture a firearm in
this Commonwealth.
* * * * *
(b) Enumerated offenses.--The following offenses shall apply to
subsection (a):
* * * * *
(continuedF)
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convicted of robbery, one of the statutorily enumerated offenses, see 18 Pa.C.S. §
6105(b), and the Commonwealth sought to introduce at trial the evidence of this robbery
conviction. However, Appellant sought to stipulate only that he had been convicted of
one of the enumerated offenses, without stating that the specific offense was robbery.
The trial court allowed the Commonwealth to introduce into evidence Appellant's
certified conviction of robbery. See Notes of Testimony, Trial ("N.T."), 6/29/11, at 50
(introducing Commonwealth's Exhibit 1). Immediately thereafter, the trial court
instructed the jury "not to consider the defendant's prior conviction as evidence of his
propensity to commit crime but only as proof of the element of this specific offense." Id.
at 50-51. After both sides had rested, the trial judge repeated this instruction during her
charge to the jury. Id. at 137.
At the end of the one-day trial, on June 29, 2011, the jury found Appellant guilty of
persons not to possess a firearm. On August 31, 2011, Appellant pled guilty to two
additional charges, to wit, carrying a firearm without a license and resisting arrest.3 The
court sentenced Appellant as follows: for persons not to possess a firearm, not less than 5
nor more than 10 years of incarceration; for carrying a firearm without a license, not less
than 3 nor more than 6 years of incarceration; and for resisting arrest, not less than 1 nor
more than 2 years of incarceration, with all sentences to be served concurrently.
Appellant appealed to the Superior Court, contending that the trial court had
abused its discretion by admitting evidence of his prior conviction for robbery when he
(Fcontinued)
Section 3701 (relating to robbery).
18 Pa.C.S. § 6105 (emphasis in original).
3 The Commonwealth withdrew the two counts of receiving stolen property. Appellant
also pled guilty to the summary offense of driving without a license, 18 Pa.C.S. 1501(a).
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had been willing to stipulate to a statutorily enumerated conviction. The Superior Court
affirmed Appellant's judgment of sentence, concluding that the trial court had properly
applied this Court’s binding precedent of Stanley, supra. See Commonwealth v.
Jemison, 64 A.3d 271 (Pa.Super., 2013) (Table). Appellant filed a petition for allowance
of appeal with this Court, which we granted.
The sole issue before us, as stated by Appellant, is the following:
Whether in a prosecution for possession of a firearm by a person not
permitted to possess one, the prosecution should no longer be permitted to
introduce the record of the disqualifying criminal conviction when the
defendant is willing to stipulate that he is within the class of persons
prohibited from possessing firearms.
Commonwealth v. Jemison, 71 A.3d 248 (Pa. 2013).
We also directed the parties to address whether Pennsylvania should henceforth
follow the holding of the United States Supreme Court in Old Chief v. United States, 519
U.S. 172 (1997), and overrule Commonwealth v. Stanley, 446 A.2d 583 (Pa. 1982).
Jemison, supra. Pursuant to the Supremacy Clause of the United States Constitution
art. VI, cl. 2,4 this Court, like all state courts, is bound by decisions of the U.S. Supreme
Court with respect to the federal Constitution and federal substantive law. See, e.g.,
Council 13, American Federation of State, County and Municipal Employees, AFL-CIO v.
Commonwealth of Pennsylvania, 986 A.2d 63, 77 (Pa. 2009). However, when resolving
matters that involve no federal question, this Court is not bound by decisions of the U.S.
4 The U.S. Constitution art VI, cl.2 provides as follows:
This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under
the Authority of the United States, shall be the supreme Law of the Land;
and the Judges in every State shall be bound thereby, any Thing in the
Constitution or Law of any State to the Contrary notwithstanding.
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Supreme Court. See Commonwealth v. McFeely, 502 A.2d 167, 169 (Pa. 1985). As
will be made clear infra, the issue presented here involves no federal question, and thus,
we are not bound by the high Court’s resolution of the issue. As both parties
acknowledge, this Court addressed the question presented here approximately 30 years
ago in Stanley, supra, and the trial court was bound by Stanley's precedent in the instant
case. Appellant, however, urges us to overturn Stanley. The issue presented is a pure
question of law and thus our standard of review is de novo and our scope is plenary.
Commonwealth v. Dowling, 959 A.2d 910, 913 (Pa. 2008).
In Stanley, the defendant-appellant, who had previously been convicted of murder,
was on trial for, inter alia, persons not to possess a firearm. At the time Stanley was
decided, the statute barred an individual from possessing a firearm if he or she had been
convicted of a "crime of violence," which was defined to include murder, rape, aggravated
assault, robbery, burglary, entering a building with intent to commit a crime therein, and
kidnapping. Id. at 588. Stanley offered to stipulate that he had a prior conviction for a
“crime of violence,” but the prosecution refused to accept the stipulation. Instead, the
prosecutor called a prison records custodian and an assistant district attorney to testify
that Stanley had been convicted of first-degree murder several months before; there was
no reference at trial to the facts underlying the prior murder conviction. On appeal,
Stanley argued that the trial court erred in allowing this testimony because the mention of
his murder conviction was unduly prejudicial in light of his offer to stipulate to a “crime of
violence.” Id. This Court disagreed, concluding as follows:
[Stanley's prior] murder conviction was undisputedly material and relevant
to proving that he committed a "crime of violence." As such, it was "proper"
evidence, squarely within Commonwealth v. Evans, 465 Pa. 12, 348 A.2d
92 (1975)[,] which held that the Commonwealth may use any "proper"
evidence to prove its case, and does not have to accept the accused's
stipulations.
[J-19-2014] - 5
Stanley, supra at 588 (emphasis in original).5
Although Stanley's holding is clear and controlling in the instant case, Appellant
insists that Stanley has been "undermined" by the United States Supreme Court ruling in
Old Chief, supra. Appellant's Brief at 11. In Old Chief, the defendant-appellant (Old
Chief) was charged with assault and with possession of a firearm by an individual who
has been convicted of a crime punishable by imprisonment for a term exceeding one
year, 18 U.S.C. § 922(g)(1).6 Before trial, Old Chief offered to stipulate that he had a
prior conviction disqualifying him from firearms possession under § 922(g)(1), without
identifying the specific offense of which he had previously been convicted. Old Chief,
supra at 174-75. The prosecution refused to accept this stipulation, and instead
5 In Stanley, the defendant-appellant was acquitted of persons not to possess a firearm,
although he was convicted of other charges, to wit, escape offenses, possessing an
instrument of crime, and possessing a prohibited offensive weapon, respectively, 18
Pa.C.S. §§ 5121 and 5122, 907, and 908.
6 The federal firearms statute under which Old Chief was charged is as follows:
It shall be unlawful for any person--
(1) who has been convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year;
* * * * *
to ship or transport in interstate or foreign commerce, or possess in or
affecting commerce, any firearm or ammunition; or to receive any firearm or
ammunition which has been shipped or transported in interstate or foreign
commerce.
18 U.S.C. § 922(g)(1).
Under 18 U.S.C. § 921(a)(20), a “crime punishable by imprisonment for a term exceeding
one year” does not include “antitrust violations, unfair trade practices, restraints of trade,
[and] similar offenses relating to the regulation of business practices,” nor does it include
“any State offense classified by the laws of the State as a misdemeanor and punishable
by a term of imprisonment of two years or less.”
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introduced the order of judgment and commitment for Old Chief’s prior conviction, which
disclosed that he had been sentenced to five years’ imprisonment for assault resulting in
serious bodily injury. Id. at 177. After the jury found Old Chief guilty on all counts, he
appealed, contending that he had been unfairly prejudiced by the trial court’s refusal to
allow the stipulation.
In its analysis of the case, the high Court first recognized that documentary
evidence of Old Chief’s prior assault conviction was relevant to proving the § 922(g)(1)
charge. Old Chief, supra at 179. However, citing Federal Rule of Evidence (“F.R.E.”)
403, pursuant to which relevant evidence is properly excluded when its “probative value is
substantially outweighed by the danger of [inter alia] unfair prejudice,” the high Court
concluded that “evidence of the name or nature of the prior offense generally carries a risk
of unfair prejudice to the defendant,” the degree of which will vary from case to case, “but
will be substantial whenever the official record offered by the Government would be
arresting enough to lure a juror into a sequence of bad character reasoning.” Old Chief,
supra at 180, 185. The high Court noted that one “appropriate factor” for a court to
consider when deciding whether to exclude evidence as unfairly prejudicial under F.R.E.
403 is the “availability of other means of proof.” Old Chief, supra at 184. As viewed by
the high Court, “Old Chief’s proffered admission would F have been not merely relevant
but seemingly conclusive evidence of the [prior conviction] element.” Id. at 186. This
was particularly true because “[t]he statutory language F shows no concern with the
specific name or nature of the prior offense beyond what is necessary to place it within the
broad category of qualifying felonies.” Id.
The high Court also determined that, in a case such as Old Chief, where the issue
was the defendant’s legal status, the general rule that the prosecution is entitled to prove
its case by evidence of its own choice has no application. Id. at 186-90. The purpose of
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the general rule is to allow the prosecutor to present a whole story and complete picture,
uninterrupted by gaps, of the events surrounding the criminal offense for which the
defendant is being tried. However, in the view of the high Court, the prosecution’s need
for “evidentiary depth to tell a continuous story has [ ] virtually no application when the
point at issue is a defendant’s legal status, dependent on some judgment rendered wholly
independently of the concrete events of late criminal behavior charged against him.” Id. at
190.
Based on the above analysis, the high Court held in Old Chief as follows:
In this case, as in any other in which the prior conviction is for an offense
likely to support conviction on some improper ground, the only reasonable
conclusion was that the risk of unfair prejudice did substantially outweigh
the discounted probative value of the record of conviction, and it was an
abuse of discretion to admit the record when an admission was available.
What we have said shows why this will be the general rule when proof of
convict status is at issue, just as the prosecutor’s choice will generally
survive a Rule 403 analysis when a defendant seeks to force the
substitution of an admission for evidence creating a coherent narrative of
his thoughts and actions in perpetrating the offense for which he is being
tried.
Id. at 191-92.
The high Court in Old Chief was sharply divided.7 In a vigorous dissent joined by
three other justices, Justice O’Connor expressed her disagreement with the
determination that “it was unfairly prejudicial for the Government to establish an essential
element of its case against petitioner with direct proof of his prior conviction.” Old Chief,
519 U.S. at 193-94 (O’Connor, J., dissenting). Justice O'Connor looked to the “structure
7Justice Souter delivered the opinion of the Court, joined by Justices Stevens, Kennedy,
Ginsburg, and Breyer. Justice O’Connor filed a dissenting opinion in which Chief Justice
Rehnquist and Justices Scalia and Thomas joined.
[J-19-2014] - 8
of § 922(g)(1) itself” to conclude that “Congress envisioned jurors' learning the name and
basic nature of the defendant's prior offense.” Id. at 194. As Justice O'Connor
recognized, “Section 922(g)(1) does not merely prohibit the possession of firearms by
‘felons,’ nor does it apply to all prior felony convictions,” as certain crimes are statutorily
excluded from coverage; therefore, “under § 922(g)(1), a defendant's prior felony
conviction connotes not only that he is a prior felon, but also that he has engaged in
specific past criminal conduct.” Old Chief, 519 U.S. at 194 (O’Connor, J., dissenting).
Justice O'Connor then noted that F.R.E. 404(b) expressly contemplates the admission of
prior crimes evidence for purposes other than “to prove the character of a person in order
to show action in conformity therewith.” Among the purposes for which prior crimes
evidence may be admissible, Justice O'Connor suggested, is that of proving a necessary
element of the firearms offense with which Old Chief was charged. Old Chief, 519 U.S.
at 196 (O’Connor, J., dissenting). Justice O'Connor’s criticism of the majority was sharp:
To say, as the Court does, that it ‘unfairly’ prejudices the defendant for the
Government to establish its § 922(g)(1) case with evidence showing that, in
fact, the defendant did commit a prior offense misreads the Rules of
Evidence and defies common sense.
Id.
In addition, Justice O'Connor emphasized that, even when the defendant
stipulates to an element of the offense with which he or she is charged, the prosecution
still bears the burden of proof on each and every element. Id. at 200. Because of the
potential for juror confusion and speculation when the jury is not told the specific prior
offense of which the defendant had been convicted in a § 922(g)(1) case, Justice
O'Connor strongly disagreed with the majority's conclusion that the prosecution's need to
tell a continuous story is not applicable when the issue is a defendant's legal status,
[J-19-2014] - 9
determined by a judgment independent of the current criminal charges. Old Chief, 519
U.S. at 198-99 (O’Connor, J., dissenting).
Justice O'Connor summarized her dissent as follows:
The Court manufactures a new rule that, in a § 922(g)(1) case, a defendant
can force the Government to accept his admission to the prior felony
conviction element of the offense, thereby precluding the Government from
offering evidence to directly prove a necessary element of its case. I
cannot agree that it ‘unfairly’ prejudices a defendant for the Government to
prove his prior conviction with evidence that reveals the name or basic
nature of his past crime. Like it or not, Congress chose to make a
defendant's prior criminal conviction one of the two elements of the §
922(g)(1) offense. Moreover, crimes have names; a defendant is not
convicted of some indeterminate, unspecified ‘crime.’ Nor do I think that
Federal Rule of Evidence 403 can be read to obviate the well accepted
principle, grounded in both the Constitution and in our precedent, that the
Government may not be forced to accept a defendant's concession to an
element of a charged offense as proof of that element.
Id. at 201.
In the case presently before us, Appellant urges us to adopt the high Court’s
holding in Old Chief, based on the majority’s reasoning, and thus to overturn our prior
holding in Stanley. Appellant asserts that Stanley was an “overextension” of
Commonwealth v. Evans, 348 A.2d 92 (Pa. 1975), see Appellant’s Brief at 17, a case in
which this Court applied the general rule that a party is not required to accept, in lieu of the
presentation of specific evidence, a stipulation as to what that evidence would prove.
Evans, supra at 94. In Evans, the defendant sought to stipulate to the testimony of a
murder victim’s daughter, and this Court upheld the trial court’s refusal to compel the
prosecutor to agree to this stipulation. In Stanley, supra at 588, we cited Evans for the
principle that “the Commonwealth may use any ‘proper’ evidence to prove its case, and
does not have to accept the accused’s stipulations.” (Emphasis in original). Relying on
Old Chief, Appellant contends that this principle does not apply “when the point at issue is
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a defendant’s legal status, dependent on some judgment rendered wholly independently
of the concrete events of later criminal behavior charged against him.” Appellant’s Brief
at 13 (quoting Old Chief, supra at 190). We cannot agree.
We recognize first that the texts of the state and federal firearms statutes pursuant
to which Appellant and Old Chief, respectively, were charged and convicted are not the
same, but rather, differ in a highly relevant way. Under 18 Pa.C.S. § 6105, the offenses
that bar an individual from possessing a firearm are set forth in a list that includes both the
names of the offenses as well as the sections of the Criminal Code where they are
defined. In contrast, under 18 U.S.C. § 922(g)(1), Congress chose not to include any
listing of specific applicable offenses, but rather barred an individual from possessing a
firearm if he or she has been convicted of a crime punishable by imprisonment for a term
exceeding one year. While the U.S. Supreme Court majority concluded that the
“statutory language [of 18 U.S.C. § 922(g)(1)] shows no congressional concern with the
specific name or nature of the prior offense beyond what is necessary to place it within the
broad category of qualifying felonies,” we are unable to draw an analogous conclusion
regarding the concern of our General Assembly in its enactment of 18 Pa.C.S. § 6105.
Our General Assembly took considerable care to delineate the specific offenses
that can support a conviction of the crime of persons not to possess firearms under §
6105, and there is no question that the relevant specific enumerated offense is an
essential element of that crime. Given the text of the Pennsylvania statute, we cannot
conclude, as the U.S. Supreme Court majority did in interpreting the federal statutory
counterpart, that “the name of the prior offense F addressed no detail in the definition of
the prior-conviction element that would not have been covered by the stipulation” to an
unspecified conviction. Old Chief, supra at 186. Thus, under 18 Pa.C.S. § 6105, one
element of persons not to possess firearms is a prior conviction of a specific, enumerated
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offense, and this fact strongly supports the Commonwealth’s view, as well as our
precedent in Stanley, that the prosecution should not be required to accept a stipulation
which acknowledges that a prior conviction satisfies the element, but does not name or
identify the specific prior offense.
The Supreme Court of Louisiana has similarly distinguished Old Chief. See State
v. Ball, 756 So. 2d 275 (La. 1999). Like our General Assembly, the Louisiana legislature
has enacted a statute that bars a person from possessing a firearm if he or she has been
convicted of any crime included in a long, specifically enumerated list of felonies. In Ball,
the defendant-appellant, who was charged with possession of a firearm by a convicted
felon, had offered to stipulate that he had a prior predicate conviction, without naming the
offense, the date thereof, or the sentence imposed. The stipulation was not accepted,
and at trial, the State introduced the bill of information and guilty plea transcript from his
prior conviction. After he was convicted of the firearm charge, the defendant-appellant
sought appellate relief, arguing, based on Old Chief, that he had been unfairly prejudiced
because the name and nature of his previous felony conviction had been revealed to the
jury. Id. at 275-77. Declining to grant relief, the Louisiana Supreme Court distinguished
Old Chief as follows.
[B]ecause the Louisiana statute defines the crime by specific
enumerated prior offenses, contrary to the broad definition in the federal
statute, Old Chief is distinguishable.
* * * * *
[The majority of the U.S. Supreme Court in Old Chief] reasoned that
because Congress had made it plain that distinctions among generic
felonies were irrelevant for purposes of the crime charged, the most the jury
needed to know was that the admitted conviction fell within the class of
crimes that Congress felt should bar a convict from possessing a gun. To
the contrary, under the Louisiana statute, “the statutory language in which
the prior conviction requirement is couched” does show “concern with the
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specific name or nature of the prior offense” and the name of the prior
offense does address a “detail in the definition of the prior conviction
element that would not have been covered by the stipulation.” Because
proof of one of the enumerated felonies is an essential element of the crime
under [the Louisiana statute], the probative value of the name and nature of
the prior conviction is greater than the “generic” felony required by the
federal statute.
Ball, supra at 278-79 (one citation omitted; quoting Old Chief, supra at 186; emphases in
original).
We consider the Louisiana Supreme Court’s analysis distinguishing Old Chief on
the basis of the text of the state statute to be persuasive, and we similarly distinguish Old
Chief on the basis of the text of our own state statute.8,9
8 This analysis was augured by Justice O’Connor’s Old Chief dissent, wherein she
concluded, based on the structure of § 922(g)(1), that Congress had envisioned that a
jury hearing a § 922(g)(1) case would indeed learn the name and basic nature of the
defendant’s prior offense. See discussion of Old Chief in text, supra.
9 We note that other states have adopted the holding in Old Chief, but many of these
states were interpreting state statutes that, like the federal statute at issue in Old Chief,
did not set forth a list of enumerated predicate prior offenses. See Anderson v.
Commonwealth of Kentucky, 281 S.W.3d 761, 763, 765-66 (Ky. 2009) (adopting the
“limited holding” of Old Chief in the context of a state statute that bars the possession of
firearms by persons who have been convicted of a felony, but does not specifically
enumerate applicable felonies); People v. Walker, 812 N.E.2d 339, 350, 353 (Ill. 2004)
(adopting the holding of Old Chief in the context of a state statute that, “like the federal
statute in Old Chief, does not require proof of a specific felony conviction,” and does not
list predicate felonies, but requires only that the prosecutor establish the defendant’s
status as a felon); Carter v. State, 824 A.2d 123 (Md. 2003) (adopting the holding of Old
Chief in the context of a state statute that bars an individual from possessing a firearm if
he or she has been convicted of a crime of violence or any felony); Ross v. State, 614
S.E.2d 31 (Ga. 2005) (similar holding); Brown v. State, 719 So. 2d 882 (Fla. 1998) (similar
holding).
However, in State v. Lee, 977 P.2d 263 (Kan. 1999), the Kansas Supreme Court adopted
the holding of Old Chief even though its analogous firearm possession statute did set
forth a listing of specific enumerated predicate felonies.
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We recognize that, pursuant to Pa.R.E. 403, relevant evidence may be excluded “if
its probative value is outweighed by a danger of F unfair prejudice.” In a Comment to
Rule 403, unfair prejudice is defined as “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.” We are unable to conclude that, in a § 6105 persons not to possess firearms
case, a defendant suffers unfair prejudice merely by the admission into evidence of his or
her certified conviction of a specific, identified, predicate offense, which has been offered
by the Commonwealth to prove the prior conviction element of § 6105.
Any possibility of unfair prejudice is greatly mitigated by the use of proper
cautionary instructions to the jury, directing them to consider the defendant's prior offense
only as evidence to establish the prior conviction element of the § 6105 charge, not as
evidence of the defendant's bad character or propensity to commit crime. Here, the trial
judge appropriately instructed the jury twice regarding the proper use of the prior offense
evidence, once immediately after the Commonwealth introduced the certified conviction,
and again just before the jury began its deliberations. We reiterate that here, as in so
many other contexts, the jury is presumed to follow the court's instructions. See, e.g.,
Commonwealth v. Tedford, 960 A.2d 1, 37 (Pa. 2008) (recognizing that when evidence of
a defendant’s other crimes is admitted for a relevant purpose under Rule 404(b), the
defendant is entitled upon request to a limiting jury instruction, which the law presumes
the jury will follow).
For all of the reasons that we have discussed above, we decline to overturn our
precedential holding in Stanley, supra. Accordingly, we affirm the Superior Court's order
affirming Appellant's judgment of sentence.
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Mr. Chief Justice Castille, Mr. Justice Eakin, Madame Justice Todd and Mr. Justice
Stevens join the opinion.
Mr. Justice Baer files a dissenting opinion in which Mr. Justice Saylor joins.
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