Commonwealth v. Yale, E., Aplt. ( 2021 )

[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 Aug. 9, 2019) (unpublished memorandum) (“The Commonwealth charged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