Full Opinion (html_with_citations)

J-A11001-22
2022 PA Super 219

    COMMONWEALTH 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
(Footnote Continued Next Page)


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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




____________________________________________


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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