Com. v. Stevenson, R. ( 2022 )

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2022 PA Super 219COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAHEEM STEVENSON :
:
Appellant : No. 1157 EDA 2021
Appeal from the Judgment of Sentence Entered April 1, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000724-2018
BEFORE: BOWES, J., STABILE, J., and McLAUGHLIN, J.
OPINION BY BOWES, J.: FILED DECEMBER 23, 2022
Raheem Stevenson appeals from the judgment of sentence of eight to
sixteen years of imprisonment followed by ten years of probation that was
imposed after a jury convicted him of two counts of robbery and one count
each of burglary and criminal conspiracy.1 We affirm.
On December 3, 2017, Wenting Ruan (“Katie”) and Yuguan Lin (“Lin”)
parked their vehicle in front of 3000 North Franklin Street in Philadelphia,
where the couple resided and operated a beer distribution center.2 As they
exited their vehicle, Appellant and his two cohorts surrounded them, taking
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1 Although Appellant purports to appeal from the order denying his post-
sentence motion, the appeal properly lies from the judgment of sentence. See
Commonwealth v. Dreves, 839 A.2d 1122, 1125 n.1 (Pa.Super. 2003) (en
banc) (finding that a direct appeal properly lies from the judgment of
sentence, not the order denying the post-sentence motion).
2 At trial, Wenting Ruan asked to be called “Katie.” See N.T. Jury Trial,
3/11/20, at 41.
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Katie’s purse and Lin’s iPhone. The purse contained approximately $700, a
checkbook, and a red wallet. The perpetrators then demanded entry into the
building. Once inside, the three men threatened Katie and Lin with violence
while filling black plastic bags with money, Newport cigarettes, and Black &
Mild cigars.
Once the parties fled, Katie called the police who tracked Lin’s stolen
iPhone to a parked vehicle. Inside the vehicle, the police found Appellant
seated in the front passenger seat on top of Katie’s red wallet while
surrounded by Newport cigarettes and Black & Mild cigars. Appellant was
arrested and charged with two counts of robbery, burglary, and criminal
conspiracy. Execution of a search warrant for the vehicle uncovered Lin’s
stolen iPhone, a ski mask, and clothing consistent with the victims’ description
of Appellant.
Appellant elected to be tried by a jury. After the Commonwealth’s case-
in-chief, Appellant indicated that he planned to testify. See N.T. Jury Trial,
3/12/20, at 68-72. Trial counsel told the court that Appellant had a prior
conviction for burglary resulting from a guilty plea in 2005 and admitted that
the conviction likely qualified as crimen falsi. Id. at 70. However, counsel
requested that the court preclude its admission on remoteness grounds. Id.
The Commonwealth briefly countered that the conviction should be admissible
given “the nature of the charges.” Id. at 70-71. The trial court denied
Appellant’s oral motion in limine. Id. Trial counsel immediately conducted a
supplemental colloquy of Appellant, inquiring whether the admissibility of
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Appellant’s prior conviction altered his decision to testify. Id. at 71-72.
Appellant indicated that the ruling had no effect on his desire to testify and
acknowledged that this decision was in direct contradiction of trial counsel’s
advice. Id. Thereafter, Appellant testified, asserting his innocence. At the
conclusion of his direct-examination, trial counsel asked and Appellant
confirmed that in 2005 he pled guilty to burglary. Id. at 84. The
Commonwealth did not re-visit Appellant’s prior conviction during its cross-
examination or mention it during closing arguments. Id. at 85-94. In its
closing charge to the jury, the trial court provided a cautionary instruction
specific to the prior burglary conviction. Id. at 144-45.
The jury found Appellant guilty of the above referenced offenses and the
trial court imposed the sentence indicated above. Appellant filed a timely
post-sentence motion, challenging the sufficiency of the evidence and the
admission of his prior burglary conviction, which was denied. This timely
appeal followed. Both Appellant and the trial court complied with the
mandates of Pa.R.A.P. 1925.
Appellant presents the following issue for our review:
Did the trial court abuse its discretion when it denied [Appellant’s]
motion in limine to preclude his 2005 burglary conviction, from
which he was released from confinement thirteen years before
trial, where:
a) The prosecution failed to provide advance written notice
of its intent to use the conviction and could not satisfy its
prosecutorial burden of articulating a need to use it; and,
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b) The trial court admitted the conviction without first
conducting Pa.R.Evid. 609(b)’s mandatory balancing
test.
Appellant’s brief at 3 (emphases omitted).
Before we address the merits of the motion in limine issue, we must
consider whether the claim has been properly preserved for appellate review.
According to the Commonwealth, the matter is waived. See Commonwealth’s
brief at 12-15. We agree that Appellant’s decision to offer his own prior
conviction precludes the challenge he raises in this appeal.
It is well-established that the first prerequisite for a party to challenge
an evidentiary ruling is to make a timely objection, motion to strike, or a
motion in limine. In that vein, our Rules of Evidence provide as follows:
(a) Preserving a Claim of Error. A party may claim error in a
ruling to admit or exclude evidence only:
(1) if the ruling admits evidence, a party, on the record:
(A) makes a timely, objection, motion to strike, or motion
in limine; and
(B) states the specific ground, unless it was apparent from
the context; or
(2) if the ruling excludes evidence, a party informs the court
of its substance by an offer of proof, unless the substance
was apparent from the context.
(b) Not Needing to Renew an Objection or Offer of Proof.
Once the court rules definitively on the record - - either
before or at trial – a party need not renew an objection or
offer of proof to preserve a claim of error for appeal.
Pa.R.E. 103. Herein, Appellant made an oral motion in limine to preclude the
Commonwealth from using his 2005 burglary conviction. The Commonwealth
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opposed the motion, and the court denied it. Accordingly, Appellant initially
preserved his claim of error. Id.
However, a properly preserved issue may be forfeited when a defendant
introduces the evidence at trial. In Commonwealth v. Conner, 341 A.2d
81, 84 (Pa. 1975), our Supreme Court held that when a defendant introduces
evidence at trial, he cannot later raise a claim of error challenging the
admission of that evidence. Therein, the defendant’s trial counsel anticipated
that his prior convictions would come in on cross-examination and made the
strategic decision to tactically introduce them through his direct examination
of the defendant. Once admitted by the defense, the Commonwealth did not
revisit the issue. The defendant was later convicted and appealed his
conviction, arguing that the admission of his prior convictions constituted a
due process violation.
Our Supreme Court found that the claim was waived, explaining:
[the defendant] introduced his past criminal record as a matter of
trial strategy, to support his credibility and soften the anticipated
blow in the eyes of the jurors. Having adopted this strategy, which
appeared to be in his best interest, [the defendant] cannot now
be heard to complain that his own act of offering such evidence
violated his constitutional rights. Under these circumstances, a
new trial is not warranted.
Id. at 84. Importantly, while the Conner opinion did not involve a motion in
limine, our High Court did not limit its holding to that precise circumstance.
Instead, the Court’s analysis focused on which party admitted the conviction.
Id. at 83-84.
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Herein, like the defendant in Conner, Appellant made the strategic
decision to admit his prior conviction in order to lessen the sting of the
Commonwealth’s anticipated elicitation of the conviction on cross-
examination. Accordingly, while the procedural history in Conner is not
identical to ours, the fact that the defendants in both cases introduced the
convictions themselves and then challenged the admission later is the crucial
point. Thus, our Supreme Court’s decision in Conner supports the
Commonwealth’s position that claim forfeiture applies. See Commonwealth’s
reply brief at 2.
Other Pennsylvania cases have also found that a defendant forfeits
claims of trial court error concerning the admission of objectionable evidence
when he “opens the door” to the evidence. In Commonwealth v. Lewis,
885 A.2d 51, 54-55 (Pa.Super. 2005), a prior panel of this court determined
that a defendant “opened the door” to testimony about his own prior bad acts
after his counsel questioned a police witness about drug-related encounters
with the defendant. Similarly, in Commonwealth v. Stakley, 365 A.2d
1298, 1300 (Pa.Super. 1976) (en banc), this court found that defense
counsel’s suggestion that the defendant had been honorably discharged from
the military opened the door to rebuttal testimony that he had not, explaining
that an appellant who delves into objectionable testimony at trial cannot later
claim error on appeal.
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This forfeiture analysis is consistent with well-established federal law,
which provides that a defendant cannot later challenge an adverse motion in
limine ruling on appeal if he testifies and admits the at-issue prior conviction
on direct examination. In Ohler v. United States, 529 U.S. 753, 760 (2000),
the defendant admitted a prior conviction on direct examination after the
district court issued an in limine ruling that the prior conviction was
admissible. Thereafter, the defendant was convicted and challenged the
motion in limine ruling on appeal. The United States Supreme Court affirmed
the judgment of sentence, finding that claim forfeiture applied because the
defendant strategically admitted the prior conviction. Id. at 755 (“a party
introducing evidence cannot complain on appeal that the evidence was
erroneously admitted.”).
In sum, an appellant who receives an adverse evidentiary ruling can
either preserve the issue for appeal by lodging an objection to the introduction
of the evidence, or he can make a strategic choice to forfeit the objection and
preemptively introduce the evidence himself. He cannot do both
simultaneously.3 Herein, Appellant chose the latter. Due to the forfeiture of
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3 To the extent Appellant suggests that he did not forfeit the ruling by
preemptively testifying because the decision to do so amounted to sound trial
strategy, we disagree. See Appellant’s brief at 16 (arguing “defense counsel
properly impeached [Appellant] with it to ‘lessen its sting’ as a defense
strategy”). Appellant has cited no precedential support for this position, and
we have uncovered none. Moreover, we generally defer any assessment of
the strength of a trial counsel’s chosen strategy to collateral review. See
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the claim of error, Appellant is not entitled to litigate the propriety of the trial
court’s ruling in this appeal.
Judgment of sentence affirmed.4
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/23/2022
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Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013) (reaffirming the general
principle that ineffective assistance of counsel claims must be deferred to
collateral review, absent two limited exceptions that are not relevant here).
4 On October 5, 2022, former Assistant District Attorney Tanya Kapoor,
Esquire, filed an application to withdraw as counsel for the Commonwealth.
We hereby grant Ms. Kapoor’s request. Ms. Kapoor’s supervisor, Laurence J.
Goode, Esquire, continues to represent the Commonwealth.
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