PA Supreme Court: Defendant May Appeal Adverse Ruling on Motion in Limine Even Where Defendant Preemptively Introduces Damaging Evidence

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Raheem Stevenson, holding that a defendant may still appeal a trial court’s pre-trial ruling on the admissibility of a prior conviction even if the defendant preemptively introduces the harmful evidence during direct examination.

The Facts of Stevenson

The defendant and his co-defendant were arrested for an alleged armed robbery that took place in 2017. During trial, the Commonwealth moved in limine to introduce evidence that the defendant had a prior 2005 conviction for burglary. The defense objected, but the trial court found that the evidence was properly admissible.

The trial court issued its ruling prior to trial as part of a hearing on a motion in limine. A motion in limine allows the parties to get a ruling from the trial judge on the admissibility of certain evidence prior to the trial or prior to the testimony itself so that neither party has to be surprised by the eventual ruling when the issue comes up during the trial. This lets the parties know what evidence they may mention during opening statements and potentially avoid triggering a mistrial by introducing evidence that should not come in.

In order to mitigate against the potential impact of this prior conviction, the defense attorney asked the defendant about it when he testified on direct examination. When damaging evidence is going to come in no matter what, it is often strategic for the affected party to introduce it themselves and avoid looking like they were attempting to hide it. It may also give the party the opportunity to explain the circumstances or provide more detail where helpful. Here, the trial attorney objected to the admission of the evidence in advance. But when the trial court ruled that it would be admissible, the attorney decided it would be strategic to have his client testify about it rather than waiting for the Commonwealth to bring it up in cross-examination.

The Superior Court’s Ruling

The jury convicted the defendant, and the defendant appealed to the Pennsylvania Superior Court. On appeal, the defendant raised the issue of whether the trial court improperly allowed the prosecution to introduce evidence of the prior burglary conviction. The Superior Court affirmed, but it did so because it found that the defense had waived the issue for appeal by introducing the evidence on direct examination. The Superior Court concluded that the defendant could not complain about evidence that he had introduced himself. The Superior Court relied primarily on the United States Supreme Court case of Ohler v. United States. There, the United States Supreme Court ruled that a defendant who introduces evidence preemptively cannot later claim it was admitted in error. That is still the rule in federal court.

The Pennsylvania Supreme Court’s Ruling

The Pennsylvania Supreme Court reversed the Superior Court's decision, concluding that the rule in Ohler should not apply under Pennsylvania law. Under Pennsylvania law, the defendant may still raise the issue on appeal even if the defendant preemptively introduced the bad evidence where there was clearly a hearing on a motion in limine, the prosecution clearly made a request, the defendant clearly objected, and the trial court made an unequivocal ruling in favor of the prosecution prior to trial. Where the trial court’s ruling is unambiguous and the defense has definitely objected to the prosecution’s request, the defense may preemptively introduce the harmful evidence without waiving the issue for appeal.

In reaching this conclusion, the Court emphasized that under Pennsylvania Rule of Evidence 103, a defendant preserves the right to appeal a ruling on evidence admissibility by making a motion in limine. The rule does not require the defendant to renew the objection during the trial once the court has made a definitive ruling.

The Court recognized that defense attorneys sometimes need to preemptively disclose potentially damaging evidence to mitigate its impact. This strategy is a legitimate trial tactic. Forcing defendants to forgo this tactic to preserve their right to appeal would be unfair and contrary to the principles of a fair trial.

The Court noted that while federal courts take a different approach under the Ohler case, many state Supreme Courts have rejected Ohler and adopted the reasoning of the dissent in that case. The dissent in Ohler argued that a defendant should not lose the right to appeal a ruling simply because they chose to introduce the evidence themselves after an adverse in limine ruling. The Court noted that Pennsylvania civil cases have upheld the right to appeal adverse rulings after preemptive disclosure. Thus, in federal court, a defendant must choose between trying to disarm the damaging evidence following an adverse ruling and preserving the issue for appeal, but in Pennsylvania state court, the defendant may preemptively introduce the evidence so long as the objection was clearly made in advance.

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