Com. v. Young, M.

J-S15022-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL ELLIOTT YOUNG, :
:
Appellant : No. 1782 EDA 2017
:

Appeal from the Judgment of Sentence May 3, 2017
In the Court of Common Pleas of Delaware County
Criminal Division at No.: CP-23-CR-0003034-2016

BEFORE: STABILE, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.: FILED JULY 18, 2018

Appellant, Michael Elliott Young, appeals from the Judgment of Sentence

entered by the Delaware County Court of Common Pleas following his

conviction after a jury trial of Persons Not to Possess Firearms.1 We affirm on

the basis of the trial court’s November 13, 2017 Opinion.

In its Pa.R.A.P. 1925(a) Opinion, the trial court set forth the underlying

facts. See Trial Court Opinion, filed 11/13/17, at 1-3, 10-11, 16-21. Briefly,

on March 10, 2016, Detective Kenneth Bellis traveled with other officers to

Appellant’s suspected place of employment, a McDonald’s restaurant in

Brookhaven, Pennsylvania, to execute an arrest warrant and apprehend

Appellant for Megan’s Law violations. A manager permitted the officers entry

____________________________________________

1 18 Pa.C.S. § 6105.
J-S15022-18

into the restaurant and Detective Bellis arrested Appellant, who was standing

five feet from the door.

After patting down Appellant, Detective Bellis asked Appellant if he had

a jacket or any other personal belongings. After initially responding that he

had a hoodie, Appellant “very quickly volunteered to the contrary that he had

with him no personal effects.” Trial Court Opinion at 10. Appellant repeated

this claim as Detective Bellis escorted Appellant to his police vehicle.

Detective Bellis returned to the restaurant and, with the manager’s assistance,

found in a nearby booth a hoodie and a backpack containing a loaded H&R

Model 733 .32-caliber revolver.

The Commonwealth charged Appellant with, inter alia, the above

offense. On June 30, 2016, Appellant filed a Motion to Suppress the physical

evidence, including the firearm. Following a suppression hearing, the court

denied Appellant’s Motion to Suppress.

Appellant proceeded to a jury trial, at which Detective Bellis and

McDonald’s Manager Melissa McCullough testified; Appellant also testified. At

trial, Appellant objected to evidence that he is a felon and ineligible to possess

a firearm due to a prior Rape of a Child conviction because it was unduly

prejudicial. Instead, Appellant offered to stipulate generally that he is a felon

and ineligible to possess a firearm due to a prior conviction.

The trial court agreed to preclude any mention at trial that Appellant’s

prior Rape conviction involved a child, but would not require the

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J-S15022-18

Commonwealth to accept Appellant’s more general stipulation to his status as

a felon ineligible to possess a firearm. As a result, the parties subsequently

agreed to stipulate to Appellant’s prior Rape conviction. The trial court added

a special voir dire question addressing this point with jurors, and provided

several cautionary jury instructions addressing this stipulation.

On March 16, 2017, a jury convicted Appellant of Persons Not to Possess

Firearms. On May 3, 2017, the trial court sentenced Appellant to a term of

five to ten years’ incarceration.

On June 2, 2017, Appellant filed a Notice of Appeal. Both Appellant and

the trial court complied with Pa.R.A.P. 1925.

Appellant presents two issues for our review:

1) Whether the lower court erred in refusing to suppress the fruits
of the unlawful warrantless search of Appellant’s bag, which was
conducted without probable cause or reasonable suspicion, and in
violation of the rights guaranteed to him by Article 1, Section 8 of
the Pennsylvania Constitution and the Fourth and Fourteenth
Amendments of the United States Constitution?

2) Whether the lower court erred in permitting the government to
introduce evidence of a specific conviction (rape) to establish that
Appellant was prohibited from possessing firearms since the
probative value of that evidence was outweighed by a danger of
unfair prejudice, especially in light of his offer to stipulate to his
general status as a prohibited person?

Appellant’s Brief at 5.

Motion to Suppress

In reviewing the denial of a Motion to Suppress, we are limited to

considering only the Commonwealth’s evidence and “so much of the evidence

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J-S15022-18

for the defense as remains uncontradicted when read in the context of the

record as a whole.” Commonwealth v. McCoy, 154 A.3d 813, 815-16 (Pa.

Super. 2017). Where the testimony and other evidence supports the

suppression court’s findings of fact, we are bound by them and “may reverse

only if the court erred in reaching its legal conclusions based upon the facts.”

Id. at 816. It is within the exclusive province of the suppression court to

“pass on the credibility of witnesses and determine the weight to be given to

their testimony.” Id. This Court will not disturb a suppression court’s

credibility determination absent a clear and manifest error. Commonwealth

v. Camacho, 625 A.2d 1242, 1245 (Pa. Super. 1993).

“A defendant moving to suppress evidence has the preliminary burden

of establishing standing and a legitimate expectation of privacy.”

Commonwealth v. Powell, 994 A.2d 1096, 1103 (Pa. Super. 2010) (citation

omitted). “Whether a defendant has a legitimate expectation of privacy is a

component of the merits analysis of the suppression motion.” Id. (citation

omitted).

Ordinarily, “a defendant charged with a possessory offense has

automatic standing to challenge a search.” Commonwealth v. Burton, 973

A.2d 428, 435 (Pa. Super. 2009) (en banc) (citation omitted). A defendant

has no standing to contest the search and seizure of items that he has

voluntarily abandoned or relinquished because he has no privacy expectation

in the property. Commonwealth v. Byrd, 987 A.2d 786, 790 (Pa. Super.

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J-S15022-18

2009) (citations omitted). In determining whether a defendant has

abandoned property, we look to the defendant’s intent and consider all

relevant circumstances at the time of the alleged abandonment. Id. If the

abandonment is coerced by unlawful police action, then the state-based

constitutional principle of forced abandonment forbids using the property for

evidentiary purposes. Id. at 791.

The Honorable Kevin F. Kelly, sitting as the trial court, has authored a

comprehensive, thorough, and well-reasoned Opinion, citing the record and

relevant case law in addressing Appellant’s suppression claim. We, thus,

affirm on the basis of the trial court’s November 13, 2017 Opinion. See Trial

Court Opinion, 11/13/17, at 3-13 (concluding that Appellant “failed to

establish [a] legitimate expectation of privacy” because he abandoned the bag

and the abandonment was not coerced by unlawful police action).

Stipulation to Prior Conviction

The “[a]dmission of evidence is within the sound discretion of the trial

court and will be reversed only upon a showing that the trial court clearly

abused its discretion.” Commonwealth v. Tyson, 119 A.3d 353, 357 (Pa.

Super. 2015) (citation and quotation omitted). “Accordingly, a ruling

admitting evidence will not be disturbed on appeal unless that ruling reflects

manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such

lack of support to be clearly erroneous.” Commonwealth v. Huggins, 68

A.3d 962, 966 (Pa. Super. 2013) (citations and internal quotations omitted).

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J-S15022-18

Relevance is the threshold for admissibility of evidence.

Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008). Evidence is

relevant if: (a) it has any tendency to make a fact more or less probable than

it would be without the evidence; and (b) the fact is of consequence in

determining the action. Pa.R.E. 401; Commonwealth v. Drumheller, 808

A.2d 893, 904 (Pa. 2002). “Evidence that is not relevant is not admissible.”

Pa.R.E. 402. In addition, “[t]he court may exclude relevant evidence if its

probative value is outweighed by a danger of one or more of the following:

unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 403.

See also Daniel J. Anders, Ohlbaum on the Pennsylvania Rules of Evidence §

401.06 et seq., § 403.06 et seq. (2017 ed. LexisNexis Matthew Bender).

A prior conviction of a certain enumerated offense is an essential

element of the crime of Persons Not to Possess Firearms under Section 6105.

Commonwealth v. Jemison, 98 A.3d 1254, 1261 (Pa. 2014). The defendant

can offer to stipulate that his prior conviction disqualified him from possessing

a firearm under Section 6105. Id. The Commonwealth, however, is under no

obligation to agree to the defendant’s stipulation. Id.

The Commonwealth can have the specific nature of the defendant’s prior

conviction admitted into evidence, over Appellant’s objection, to establish the

prior-conviction element of Section 6105. Id. The defendant is not subject

to per se unfair prejudice simply because the Commonwealth presents

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J-S15022-18

evidence of the specific offense to establish the prior-conviction element of

Section 6105. Id. Any unfair prejudice depends on the facts and

circumstances of the particular case. Id.

After a thorough review of the certified record, the briefs of the parties,

the applicable law, and the comprehensive and well-reasoned Opinion of the

trial court, we conclude that there is no merit to Appellant’s evidentiary claim

on appeal. Accordingly, we affirm on the basis of the trial court’s Opinion.

See Trial Court Opinion at 13-23 (holding that: (1) Jemison constituted

binding precedent2 and it could not force the Commonwealth to enter into a

stipulation; (2) the trial court appropriately permitted the parties’ stipulation

informing the jury that Appellant had a prior Rape conviction, but not that it

____________________________________________

2 While we agree that Jemison controls the outcome of this case and we must
affirm the trial court’s decision to permit the Commonwealth to notify the jury
that Appellant has a prior conviction for a rape, we find the application of
Jemison to this case troubling. Jemison involved a prior robbery conviction
while this case involves a prior conviction for a rape, a conviction that has a
greater chance of inflaming a jury. The Supreme Court’s holding in Jemison
precludes the trial court from balancing the relevancy of the type of crime with
the inflammatory nature of the prior conviction. Since the statutory language
of Section 6105 involves only the existence of a prior conviction for one of the
enumerated crimes, we suggest that the Pennsylvania Supreme Court revisit
Jemison and consider whether the trial court should balance the relevancy of
the type of crime with the potential that the prior conviction will inflame the
prejudices of the jury.

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J-S15022-18

involved a child; and (3) the trial court’s cautionary instructions detailing the

limited purpose of this evidence prevented any unfair prejudice).3

The parties are instructed to attach a copy of the trial court’s November

13, 2017 Opinion to all future filings.

Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/18/18

____________________________________________

3 We reiterate that, in similar circumstances where a defendant faces a jury
trial for a Section 6105 offense with potentially prejudicial prior convictions
legally permitted to be admitted into evidence, “there is a strong rationale for
allowing a bifurcated presentation and deliberation to avoid prejudice, which
might ultimately conserve judicial resources.” Commonwealth v. Jones,
No. 515 MDA 2016 (Pa. Super. filed May 24, 2017) (unpublished
memorandum) (concurring statement by Judge Lazarus noting that,
“Bifurcation would allow a jury to deliberate on the possession element,
without the taint of evidence of a prior conviction, and end the matter if the
jury found no possession -- preserving judicial resources, while avoiding
potential prejudice to a defendant resulting from the introduction of a
defendant’s prior conviction.”).

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 Circulated 06/20/2018 01:36 PM

IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
CRIMINAL

COMMONWEALTH OF PENNSYLVANIA NO. 3034-16

v.

MICHAEL ELLIOTT YOUNG Superior Court No. 1782 EDA 2017

A. Sheldon Kovach, Esquire - Deputy District Attorney for the Commonwealth
Steven M. Papi, Esquire - Attorney for Michael Elliott Young

OPINION

J. Kelly Date: November 13, 2017

I. Case History

A criminal complaint was filed on March 10, 2016, by Detective Kenneth Bellis,

Delaware County Criminal Investigative Division, charging Michael Elliott Young (hereinafter

referred to as "Young" and/or "Defendant") with, inter alia, person not to possess ... firearms.'

A preliminary hearing was held on May 17, 2016, before the magisterial district court and

after the Commonwealth's presentation of evidence, the magisterial district judge held Defendant

Young for trial court proceedings as to all prosecuted offenses, including person not to

possess ... firearms.2

Before the trial court on June 15, 2016, the Defendant was formally arraigned at which

time the Office of the District Attorney of Delaware County lodged against him a Criminal

Information averring, inter alia, Count 1 - Person Not to Possess Firearms.3

I 18 Pa.C.S. §6105.
2 Id.
3 Id.
 Defendant Young on June 30, 2016, lodged a Motion to Suppress Evidence. See Motion

to Suppress Evidence. Originally, a hearing regarding the exclusionary pleading was set for

August 1, 2016; however, on that date (August 1, 2016), the suppression hearing was

rescheduled, absent objection, to August 30, 2016. See Hearing Notice dated July 1, 2016.

Without defense opposition, the exclusionary proceeding at the Commonwealth's request was

continued at this listing (August 30, 2016) to September 7, 2016. The suppression hearing as

then scheduled commenced and concluded on September 7, 2016, before this court. N.T. 9/7/16.

The court by an order dated September 30, 2016, denied the Defendant's exclusionary claim.

See Order dated September 30, 2016.

A jury trial began on March 15, 2017,4 and ended the following day, March 16, 2017.5

The jury as to the sole prosecuted charge Count 1 - Person Not to Possess ... Firearms,6 found

Defendant Young guilty. See Jury's Verdict. See generally N.T. 3/15/17 and 3/16/17.

A sentencing hearing was held on May 3, 2017. N.T. 5/3/17. Defendant Young

consistent with his Pennsylvania sentencing guidelines' standard range was sentenced per count

4
Subsequent to the denial of Defendant Young's suppression motion (September 30, 2016), the defense for various
reasons continued the next four (4) trial listings. See Motion to Suppress Evidence and Order dated September 30,
2016.

5 Although the prosecution by such a filing lodged at the Defendant's formal arraignment gave notice of its intent to
try the above -captioned matter collectively with Defendant Young's case under docket No. 3035-16, it opted to first
proceed to trial only in the instant case (No. 3034-16), absent defense opposition. See Notices of Proposed Joinder
Under Pa. Rule of Criminal Procedure Rule 582, Nos. 3034-16 and 3035-16. See also 3/15/17, pp. 3-4 and
Commonwealth v. Young, No. 3035-16 - Delaware County. See generally Pa.R.Crim.P. 582. (Just prior to the
Defendant's sentencing at bar (No. 3034-16), he also entered a counseled, negotiated plea of nolo contendere in
docket No. 3035-16 to that Criminal Information's Count 1 - Failure to Comply With Registration Requirements, 18
Pa.C.S. §4915.1, and the prosecution moved as part of the plea negotiations to dismiss the balance of the remaining
counts which the court allowed, without defense objection. See Defendant's Nolo Contendere Plea Statement and
Criminal Information, No. 3035-16. Per the attorneys' plea agreement, no further penalty was imposed. N.T.
5/3/17, pp. 3-8. See also Certificate of Imposition of Judgment of Sentence, No. 3035-16.).

Absent defense opposition, the Commonwealth during the of-record voir dire conference held just before the
-
trial's start withdrew all other counts of its past filed criminal information at bar, except count I person not to
possess ... firearms, 18 Pa.C.S. §6105. N.T. 3/15/17, pp. 3-4. See also Criminal Information.
6
18 Pa.C.S. §6105.

2
1 (person not to possess ... firearms)7 to a term of five (5) to ten (10) years imprisonment at a

state correctional facility. See Defendant's Pennsylvania Sentencing Guidelines. The Defendant

was afforded the applicable time served credit and without defense objection deemed for risk

recidivism reduction consideration ineligible.8 N.T. 5/3/17, pp. 13-14. See also Certificate of

Imposition of Judgment of Sentence.

Defendant Young timely lodged on June 2, 2017, a counseled Notice of Appeal to the

Pennsylvania Superior Court. See Notice of Appeal dated June 2, 2017. See also Superior Court

No. 1782 EDA 2017. The court via an order dated June 5, 2017, directed the Defendant's

attorney to file of-record a concise statement of matters complained of on appeal. See Order

dated June 5, 2017. See also Pa.R.A.P. 1925(b).

On June 19, 2017, Defendant Young's attorney lodged a petition for an extension of time

to file an appellate complaints statement. See Extension Petition dated June 19, 2017.

The court in an order dated June 20, 2017, granted this defense extension application.

See Order dated June 20, 2017.

On July 3, 2017, the Defendant lodged a matters complained of statement advancing the

two (2) error assignments discussed below. See Statement of Matters Complained dated July 3,

2017.

II. Discussion

A. The court erred in refusing to suppress the fruits (including the firearm) of the unlawful
search of Mr. Young's bag. which was conducted without a warrant, without probable cause or
reasonable suspicion, and in violation ofArticle 1, Section 8 of the Pennsylvania Constitution
and the Fourth and Fourteenth Amendments ofthe United States Constitution.

Defendant Young through his first complaint on appeal maintains this court erred in

refusing to exclude from the prosecution's trial usage the contents of a backpack recovered by

Id.
61 Pa.C.S. §§4501 et seq.

3
investigators shortly subsequent to his arrest and found to contain, inter alia, an H & R Model

733, .32 caliber revolver. See Statement of Matters Complained, No. 1. See also

Commonwealth Exhibit C-16 - Revolver. More specifically, the Defendant argues that because

the seizure and search of this knapsack were not undertaken pursuant to a search warrant and/or

otherwise supported by salient probable cause, or even a reasonable suspicion, such police

actions were violative of applicable constitutional protections and the items involved law

enforcement personnel found in this bag, including the firearm (Commonwealth Exhibit C-16 -

Revolver), should have been suppressed. As a review of the relevant case record reveals

Defendant Young freely abandoned this backpack prior to detectives recovering and searching it,

neither a search warrant nor probable cause were necessary precursors to this disputed police

conduct. Having relinquished any privacy interest he may have enjoyed regarding the knapsack,

Defendant Young cannot prevail on an exclusionary motion targeting this bag's contents. This

error assignment is without merit.

The review standard on appeal applicable to a trial court's denial of a suppression claim

is well -settled and as described per the Superior Court that below:

[IA/Dien an appellate court reviews the ruling of a suppression
court, we consider only the evidence from the defendant's
witnesses together with the evidence of the prosecution that, when
read in the context of the entire record, remains uncontradicted.
We must first ascertain whether the record supports the factual
findings of the suppression court, and then determine the
reasonableness of the inferences and legal conclusions drawn
therefrom. The suppression court's factual findings are binding on
us and we may reverse only if the legal conclusions drawn
therefrom are erroneous.

Commonwealth v. Conrad, 892 A.2d 826, 828 (Pa.Super. 2006) quoting Commonwealth v.
Rosas, 875 A.2d 341, 346 (Pa.Super. 2005). See also Commonwealth v. El, 933 A.2d 657, 660
(Pa.Super. 2007) quoting Commonwealth v. Nobalez, 805 A.2d 598, 600 (Pa.Super. 2002),
appeal denied, 575 Pa. 692, 835 A.2d 709 (2003); Commonwealth v. Cook, 865 A.2d 869, 873
(Pa.Super. 2004) citing Commonwealth v. Ayala, 791 A.2d 1202, 1207 (Pa.Super. 2002) citing

4
Commonwealth v. Turner, 772 A.2d 970, 972-73 (Pa.Super. 2001)(en banc); and Commonwealth
v. Ryerson, 817 A.2d 510, 513-14 (Pa.Super. 2003) quoting Commonwealth v. Johnson, 734
A.2d 864, 869 (Pa.Super. 1999).

In support of this sought after evidentiary exclusion, the Defendant's lawyer at the

hearing's outset advanced alternative grounds. Defense counsel first challenged the involved

detective's search of the backpack arguing that in the absence of a judicially approved search

warrant the same was unlawful. N.T. 9/7/16, pp. 4-5. See generally Commonwealth v. Bostick,

958 A.2d 543, 556 (Pa.Super. 2008) quoting Commonwealth v. Blair, 860 A.2d 567, 571

(Pa.Super. 2004) and Commonwealth v. Key, 789 A.2d 282, 287 (Pa.Super. 2001);

Commonwealth v. Griffin, 24 A.3d 1037, 1041 (Pa.Super. 2011) quoting Commonwealth v.

Stewart, 740 A.2d 712, 715 (Pa.Super. 1999), affirmed, 568 Pa. 499, 798 A.2d 697 (2002) and

Commonwealth v. Casanova, 748 A.2d 207, 211 (Pa.Super. 2000), appeal denied, 570 Pa, 682,

808 A.2d 569 (2002); and Commonwealth v. Johnson, 68 A.3d 930, 935 (Pa.Super. 2013)

quoting Commonwealth v. Bostick supra 958 A.2d at 556; Commonwealth v. Santiago, 736 A.2d

624, 631 (Pa.Super. 1999) quoting Commonwealth v. Govens, 429 Pa.Super. 464, 476-77, 632

A.2d 1316, 1322 (1993)(en banc)(" 'The law of search and seizure remains focused on the

delicate balance of protecting the right of citizens to be free from unreasonable searches ...

protecting the safety of our citizens and police officers by allowing police to make limited

intrusions on citizens while investigating crime.' ... It is well established that 'probable cause

alone will not support a warrantless search ... unless some exception to the warrant requirement

is also present ... "); and Commonwealth v. Whitlock, 69 A.3d 635, 637 (Pa.Super.

2013)("[Als a general rule, 'a search warrant is required before police may conduct any search.'

T.C.O. at 4 (citing Commonwealth v. White, 543 Pa. 45, 669 A.2d 896, 900 (1995)). Absent the

application of one of a few clearly delineated exceptions, a warrantless search or seizure is

5
presumptively unreasonable. Id. (citing Horton v. California, 496 U.S. 128, 134 n. 4, 110 S.Ct.

2301, 110 L.Ed.2d 112 (1990)). This is the law under both the Fourth Amendment to the United

States Constitution and Article I, Section 8 of the Pennsylvania Constitution. Id. (citing

Commonwealth v. McCree, 592 Pa. 238, 924 A.2d 621, 627 (2007)); see Commonwealth v.

Jones, 605 Pa. 188, 988 A.2d 649, 656 (2010)."). The Defendant's attorney alternatively

maintained that assuming the warrantless search of Defendant Young's backpack was otherwise

constitutionally permissible, the investigator so acted without requisite probable cause to believe

that the knapsack then contained any specified evidence of criminality. N.T. 9/7/16, p. 5. See

generally Commonwealth v. Whitlock supra 69 A.3d at 637-41 and Commonwealth v. Perel, 107

A.3d 185, 194-97 (Pa.Super. 2014). The lawyer for Defendant Young proffered in support of the

requested evidentiary suppression no other grounds. N.T. 9/7/16, pp. 4-5. See generally

Pa.R.Crim.P. 575(A)(2)(c), 578(3), and 581(D).

" 'Once a motion to suppress evidence has been filed, it is the Commonwealth's burden

to prove, by a preponderance of the evidence, that the challenged evidence was not obtained in

violation of the defendant's rights.' " Commonwealth v. Evans, 153 A.3d 323, 327 (Pa.Super.

2016) quoting Commonwealth v. Wallace, 42 A.3d 1040, 1047-48 (Pa.Super. 2012)(en bane);

Commonwealth v. Wilson, 927 A.2d 279, 283 (Pa.Super. 2007) quoting Commonwealth v.

Andersen, 753 A.2d 1289, 1291 (Pa.Super. 2000); and Commonwealth v. Evans supra 443

Pa.Super. at 354, 661 A.2d at 882-83 quoting Commonwealth v. Govens supra 429 Pa.Super. at

472, 632 A.2d at 1320 and citing Commonwealth v. DeWitt, 530 Pa. 299, 301, 608 A.2d 1030,

1031 (1992) and Commonwealth v. Frombach, 420 Pa.Super. 498, 500, 617 A.2d 15, 16 (1992).

See also Pa.R.Crim.P. 581(H).

6
 " 'It is within the suppression court's sole province as factfinder to pass on the credibility

of witnesses and the weight to be given their testimony.' " Commonwealth v. Bush, 166 A.3d

1278, 1282 (Pa.Super. 2017) quoting Commonwealth v. Gallagher, 896 A.2d 583, 585

(Pa.Super. 2006). See also Commonwealth v. Galendez supra 27 A.3d at 1046 quoting

Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa.Super. 2003).

Standing is the recognition of a legal interest. Commonwealth v. Peterson, 535 Pa. 492,

497, 636 A.2d 615, 617 (1993); Commonwealth v. Millner, 585 Pa. 237, 255, 888 A.2d 680, 691

(2005). "The concept of standing in a criminal search and seizure context empowers a defendant

to assert a constitutional violation and thus seek to exclude or suppress the government's

evidence pursuant to the exclusionary rules under the Fourth Amendment of the United States

Constitution or Article 1, Section 8 of the Pennsylvania Constitution." Commonwealth v.

Hawkins, 553 Pa. 76, 80, 718 A.2d 265, 266 (1998) citing generally Commonwealth v. Price,

543 Pa. 403, 411-12, 672 A.2d 280, 284 (1996); Commonwealth v. Peterson supra 535 Pa, at

497, 636 A.2d at 617; and Sprague v. Casey, 520 Pa. 38, 43, 550 A.2d 184, 187 (1988). While

as applicable to suppression claims standing traditionally required a defendant to demonstrate a

personal interest of a possessory and/or proprietary nature, Commonwealth v. Hawkins supra 553

Pa. at 80, 718 A.2d at 267, standing under this Commonwealth's jurisprudence has since been

recognized by the Pennsylvania appellate courts a general shorthand reference " ... to [a

defendant's] right to have the merits of his suppression motion adjudicated without a preliminary

showing of ownership or possession in the premises or effects seized.' " Commonwealth v.

Millner supra 585 Pa. at 255, 888 A.2d at 691 quoting Commonwealth v. Peterson supra 535 Pa.

at 497, 636 A.2d at 617 citing Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983).

7
 Although yet recognizing the continued vitality of automatic standing under Pennsylvania

constitutional principles, Commonwealth v. Hawkins supra 553 Pa. at 81, 718 A.2d at 267 citing

Commonwealth v. Sell supra 504 Pa. at 66-68, 470 A.2d at 468-69; Commonwealth v. Peterson

supra 535 Pa. at 497, 636 A.2d at 617, a defendant salient to an exclusionary application still has

the requisite evidentiary responsibility to establish that the challenged police activity

contravened a reasonable and legitimate, personal privacy expectation. Commonwealth v.

Millner supra 585 Pa. at 256, 888 A.2d at 691; Commonwealth v. Enimpah, 630 Pa. 357, 368,

106 A.3d 695, 701 (2014) citing Commonwealth v. Gordon, 546 Pa. 65, 71-72, 683 A.2d 253,

256 (1996); and Commonwealth v. Peterson supra 535 Pa. at 498, 636 A.2d at 618. To prevail

on a suppression claim a defendant must demonstrate " ... a privacy interest which was actual,

societally sanctioned as reasonable, and justifiable ... " and resultantly, the disputed law

enforcement activity violated his constitutional rights to be secure against unreasonable searches

and seizures. Commonwealth v. Millner supra 585 Pa. at 256, 888 A.2d at 691 citing

Commonwealth v. Brundidge, 533 Pa. 167, 170, 620 A.2d 1115, 1118 (1993); Commonwealth v.

Oglialoro, 525 Pa. 250, 256, 579 A.2d 1288, 1290-91 (1990); Commonwealth v. Peterson supra

535 Pa. at 497, 636 A.2d at 617 [Citations omitted].

The legitimate expectation of privacy necessary to a suppression motion's adjudication

on the merits mandates that the relevant record reveals both a subjective expectation of privacy

and that such a personal belief is objectively viewed by society as reasonable. Commonwealth v.

Hawkins supra 553 Pa. at 81-82, 718 A.2d at 267-68. Without this requisite personal or

subjective privacy expectation coupled with objective societal reasonableness in the place

searched and/or the seized effect, a defendant's exclusionary application must fail. Id. 553 Pa. at

82, 718 A.2d at 268 citing generally Commonwealth v. Mickens, 409 Pa.Super. 266, 597 A.2d

8
1196 (1991); and Commonwealth v. Bulling, 331 Pa.Super. 84, 480 A.2d 254 (1984). "Article 1,

Section 8, of our state constitution, as well as the Fourth Amendment of the United States

Constitution, does not permit a defendant to vicariously assert the privacy rights of others."

Commonwealth v. Powell supra 994 A.2d at 1107.

"Whether a defendant has a legitimate expectation of privacy in an area subjected to a

search by police is a composite test of the defendant's subjective expectation and the objective

reasonableness of the expectation ... ." Commonwealth v. Newman supra 84 A.2d at 1076.

" 'Whether [a] defendant has a legitimate expectation of privacy is a component of the merits

analysis of the suppression motion ... made upon evaluation of the evidence presented by the

Commonwealth and the defendant ... [, if any].' " Commonwealth v. Enimpah supra 630 Pa. at

365, 106 A.3d at 699 quoting Commonwealth v. Burton supra 973 A.2d at 435. See also

Commonwealth v. Powell supra 994 A.2d at 1103-04.

Directly related to the defense establishing the requisite privacy expectation necessary to

a suppression pleading's adjudication on its merits, the Supreme Court of Pennsylvania in

rejecting a challenge to the propriety of investigators searching a suitcase of which a defendant

denied ownership found the following:

[T]o prevail on a suppression motion, a defendant must
demonstrate a legitimate expectation of privacy in the area
searched or effects seized, and such expectation cannot be
established where a defendant has meaningfully abdicated his
control, ownership or possessory interest. See Commonwealth v.
Hawkins [supra] 553 Pa. [at 80,] 718 A.2d [at 267]. Significantly,
abandonment of a privacy interest is primarily a question of intent
and may be inferred from words spoken, acts done, and other
objective facts. See Commonwealth v. Shoatz, 469 Pa. 545, 553,
366 A.2d 1216, 1220 (1976).

Commonwealth v. Dowds, 563 Pa. 377, 388, 761 A.2d 1125, 1131 (2000). See also
Commonwealth v. Smith, 575 Pa. 203, 218, 836 A.2d 5, 14 (2003) quoting Commonwealth v.

9
Dowds supra 563 Pa. at 388-89, 761 A.2d at 1131 and Commonwealth v. Bennett, 412 Pa.Super.
603, 612, 604 A.2d 276, 280 (1992).

A review of the credible evidence at bar reveals that on March 10, 2016, at approximately

6:00 A.M., Detective Kenneth Bellis,9 Delaware County Criminal Investigation Division, and

other law enforcement authorities arrived at a local fast food restaurant armed with a felony

arrest warrant past issued by a magisterial district judge for purposes of apprehending the

Defendant pursuant to that warrant. (From his investigation, Detective Bellis had reason to

believe this fast food restaurant was Defendant Young's place of employment.) N.T. 9/7/16, pp.

6, 8, 9. After conducting modest surveillance of the activity ongoing within the restaurant,

Detective Bellis and his police colleagues approached a customer entryway and were admitted

by the manager. N.T. 9/7/16, pp. 9-11. The Defendant was then standing in a public area of the

restaurant, some approximate five (5) feet from the door the detective entered. N.T. 9/7/16, pp.

10-12, 20. Detective Bellis advised Defendant Young of the arrest warrant, frisked -searched his

person, and placed the Defendant via handcuffs in custody. N.T. 9/7/16, pp. 12-13. The

detective just after securing him, while yet in restaurant's patron section, inquired of Defendant

Young whether he had with him a jacket or any other personal belongings. N.T. 9/7/16, pp. 13,

21-22. Defendant Young initially replied he had a "hoodie" style sweatshirt; however, he

immediately and very quickly volunteered to the contrary that he had with him no personal

effects. N.T. 9/7/16, p. 13. When Detective Bellis began to escort the Defendant from the

restaurant, Defendant Young seemingly once more offered he had not brought to work any

personal items. N.T. 9/7/16, p. 22.

9Having listened most attentively at the suppression hearing throughout the entirety of Detective Bellis's testimonial
appearance, this court found him in all material respects to be a credible witness. N.T. 9/7/16, pp. 6-23. See
Commonwealth v. Bush supra 155 A.3d at 1282 quoting Commonwealth v. Gallagher supra 896 A.2d at 585; and
Commonwealth v. Galendez supra 27 A.3d at 1046 quoting Commonwealth v. Elmobdy supra 823 A.2d at 183.

10
 Once Defendant Young was settled in the police vehicle, Detective Bellis re-entered the

restaurant and located about a customer booth in a public area a backpack and in this knapsack's

direct proximity, a "hoodie" type sweatshirt. N.T. 9/7/16, pp. 14-15. The detective searched the

backpack and found, inter alia, a firearm (Commonwealth Exhibit C-16 - Revolver) and

believing this bag to be Defendant Young's seized the knapsack, along with its contents. N.T.

9/7/16, pp. 14-15.

Detective Bellis took the Defendant into custody pursuant to a felony arrest warrant

previously issued by a reviewing magisterial district judge. The validity of this arrest warrant at

bar was not disputed and this court from its review of material record has no reason otherwise to

question this arrest warrant's legality. See Commonwealth v. Young, No. 3035-16, Arrest

Warrant dated February 23, 2016. See also N.T. 9/7/16, pp. 4-5. The detective's interactions

with Defendant Young on executing this arrest warrant and taking him into custody pursuant to

the same were lawful. The Defendant's denial of then being in possession of any personal

belongings, including but not limited to the backpack, was not thus the "coerced product of an

illegal seizure." Commonwealth v. Smith supra 575 Pa. at 218, 836 A.2d at 14. See also

Commonwealth v. Dowds supra 563 Pa. at 389, 761 A.2d at 1131-32. See contra

Commonwealth v. Bennett supra 412 Pa.Super. at 625, 604 A.2d at 287 ("Because appellee's

abandonment of the duffle bag ... was preceded by and resulted from an unlawful Terry stop

initiated by the police, we conclude that the cocaine found in the subsequent search of the duffle

bag was properly suppressed by the trial court.")(Emphasis added.).

"Where, as here, an individual's disclaimer of ownership is not the product of improper

police conduct and clearly indicates [his] intention, we can perceive no basis for treating it

differently than an act from which an intention to abandon may be inferred." Commonwealth v.

11
Dowds supra 563 Pa. at 389, 761 A.2d at 1131 citing Commonwealth v. Shoatz supra 469 Pa. at

554, 366 A.2d at 1220.

Having explicitly denied to Detective Bellis ownership of the backpack in combination

with his having left this bag about a customer booth in a patron section of the local fast food

restaurant then open to the public, the Defendant has failed to demonstrate the legitimate privacy

expectation necessary to his suppression motion's on the merits adjudication. Id 563 Pa. at 388,

761 A.2d at 1131 citing Commonwealth v. Hawkins supra 553 Pa. at 80, 718 A.2d at 267. See

also Commonwealth v. Millner supra 585 Pa. at 256, 888 A.2d at 691 citing Commonwealth v.

Brundidge supra 533 Pa. at 170, 620 A.2d at 1118; Commonwealth v. Oglialoro supra 525 Pa. at

256, 579 A.2d at 1290-91; Commonwealth v. Newman supra 84 A.2d at 1076; and

Commonwealth v. Enimpah supra 630 Pa. at 365, 106 A.3d at 699 quoting Commonwealth v.

Burton supra 973 A.2d at 435. See also N.T. 9/7/16, pp. 9-10, 13, 21-22.

The assertion of Defendant Young on appeal that this court was mistaken in denying his

exclusionary motion and allowing the evidentiary admission of the bag's contents at trial,

including but not limited to the H & R Model 733, .32 caliber revolver,1° summarily ignores that

on the instant case record he failed to establish the legitimate expectation of privacy requisite to

his exclusionary motion's success. N.T. 9/7/16. See also Order dated September 30, 2016, pp.

3-4. After having concluded he abandoned the knapsack and there were no attendant law

enforcement illegalities, and the Defendant thus freely relinquished that privacy interest in this

bag and its contents he may have enjoyed, there was no further need for this court to additionally

scrutinize whether Detective Bellis otherwise acted lawfully on seizing and searching the

knapsack, absent a judicially approved search warrant and/or without the necessary probable

I° See Commonwealth Exhibit C-16 - Revolver.
12
cause. Commonwealth v. Dowds supra 563 Pa. at 389, 761 A.2d at 1131 citing Commonwealth

v. Shoatz supra 469 Pa. at 554, 366 A.2d at 1220.

The record at bar supports this court's findings of fact as well as the related inferences it

drew, and the legal conclusions it applied to those credible facts were reasonable. This appellate

complaint is meritless. See Commonwealth v. Conrad supra 892 A.2d at 828 quoting

Commonwealth v. Rosas supra 875 A.2d at 346. See also Commonwealth v. El supra 933 A.2d

at 660 quoting Commonwealth v. Nobalez supra 805 A.2d at 600; Commonwealth v. Cook supra

865 A.2d at 873 citing Commonwealth v. Ayala supra 791 A.2d at 1207 citing Commonwealth v.

Turner supra 772 A.2d at 972-73; and Commonwealth v. Ryerson supra 817 A.2d at 513-14

quoting Commonwealth v. Johnson supra 734 A.2d at 869.

court erred in permitting the Commonwealth to introduce evidence of a specific
B. The
conviction (rape) to establish that Mr. Young was prohibitedfrom possessink firearms since he
offered to stipulate to his status as prohibited person and because the probative value of that
evidence was outweighed by the danker of unfair_prejudice.

Although Defendant Young suggests via this error assignment's initial language that he is

maintaining on appeal the court wrongly and blithely allowed to his unfair prejudice the

prosecution to introduce at trial evidence of his prior rape II conviction, the core of this

contention is more aptly understood with the Defendant's subsequently stated rationale,
Li
. since [the defense] offered to stipulate to his status as prohibited person [sic] ... ." See

Statement of Matters Complained, No. 2. In short, the Defendant is claiming this court erred by

not compelling the Commonwealth to "accept" his proffered agreement that pursuant to 18

Pa.C.S. §6105 he was such a "prohibited person." This court under controlling Pennsylvania law

and on the salient case record was neither mistaken in declining to direct that the prosecution

acquiesce to the extended defense stipulation nor permitting on the tendered agreement's

II 18 Pa.C.S. §3121.

13
rejection the Commonwealth to present evidence of Defendant Young's disqualifying, past

conviction. This appellate complaint is without merit.

The applicable review standard of a trial court's evidentiary ruling challenged on appeal

is that below:

The admission of evidence is a matter vested within the sound
discretion of the trial court, and such a decision shall be reversed
only upon a showing that the trial court abused its discretion. ...

Commonwealth v. Weakley, 972 A.2d 1182, 1188 (Pa.Super. 2009)
(quoting Commonwealth v. Reid, 571 Pa. 1, 811 A.2d 530, 550
(2002)). An abuse of discretion is not merely an error of
judgment, but is rather the overriding or misapplication of the law,
or the exercise of judgment that is manifestly unreasonable, or the
result of bias, prejudice, ill -will or partiality, as shown by the
evidence of record.' Id, at 1188-89 (citing Commonwealth v.
Carroll, 936 A.2d 1148, 1152-53 (Pa.Super. 2007)).

Commonwealth v. Antidormi, 84 A.3d 736, 749-50 (Pa.Super. 2014).

In Commonwealth v. Jemison, the Supreme Court of Pennsylvania revisited the teachings

of its thirty-two (32) year old opinion, Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583

(1982), regarding the admission of a defendant's specified, previous criminal conviction in a

person not to possess ... firearms12 prosecution and decide more recently whether a proffered

prohibited person defense stipulation should bar the Commonwealth from introducing a

defendant's disqualifying prior conviction. See Commonwealth v. Jemison, 626 Pa. 489, 491-94,

98 A.3d 1254, 1255-58 (2014). The High Court in Jemison examined the balance between the

purported unduly prejudicial nature of past conviction evidence against the admittance of the

evidence under the precepts set forth via Pennsylvania Rule of Evidence 403 and the United

States Supreme Court decision, Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644 (1997).

Id. 626 Pa. at 496-501, 98 A.3d at 1258-61. See also Pa.R.E. 403 ("The court may exclude

12 18 Pa.C.S. §6105.

14
relevant evidence if its probative value is outweighed by a danger of ... unfair prejudice ... .").

Following such a comparative assessment, the Pennsylvania Supreme Court found as follows:

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 ... 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, 117 S.Ct. 644. Thus under 18 Pa.C.S. §6105, one
element of persons not to possess firearms is a prior conviction of a
specific, enumerated 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. ...

We recognize that, pursuant to Pa.R.E. 403, relevant evidence may
be excluded 'if its probative value is outweighed by a danger of ...
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 0105 charge, not as
evidence of the defendant's bad character or propensity to
commit the 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.

15
 See e.g. Commonwealth v. Tedford, 598 Pa. 639, [700,] 960 A.2d
1, 37 (2008).

Commonwealth v. Jemison supra 626 Pa. at 501, 503-04, 98 A.3d at 1261, 1262-63. (Emphasis
added.).

One (1) of the Defendant's lawyers, Glen Hoffman, Esquire,13 advanced at the of-record

voir dire conference held just prior to the jurors' selection that the defense was willing to agree

to Defendant Young's prohibited person status14 and relatedly objected in light of this tendered

stipulation to his specific disqualifying rape conviction being made known to the jury arguing

that the same was rendered without probative value given the proffered agreement. N.T.

3/15/17, p. S.

Addressing these interwoven defense contentions, despite this defense objection, the

court noted that the Pennsylvania Supreme Court unequivocally directed via Commonwealth v.

Jemison that the prosecution could not be forced into an agreement that did not identify the

disqualifying conviction and it would not direct in the matter at bar the Commonwealth to accept

the same. N.T. 3/15/17, pp. 5-9. See also Commonwealth v. Jemison supra. While refusing to

compel the prosecution to accept the Defendant's proffered stipulation, the court advised that the

reference to Defendant Young's prior conviction would be limited to only the crime of rapel5

and not include that he was previously convicted of rape of a child16 as the material section of the

person not to possess statute" detailing the prohibiting enumerated offenses does not delineate

between rape'8 and rape of a child.19 N.T. 3/15/17, pp. 6, 8-9.

13 Defendant Young at trial was jointly represented by Assistant Public Defenders David M. lannucci, Esquire and
Mr. Hoffman.

14 18 Pa.C.S. §6105(b).
15 18 Pa.C.S. §3121.
16 18 Pa.C.S. §3121(c).
17 18 Pa.C.S. §6105(b).
IS 18 Pa.C.S. §3121.
19 18 Pa.C.S. §3121(c).

16
 The court further instructed the attorneys that although the prosecution would be

permitted to present evidence of the Defendant's particular disqualifying conviction, it intended

per Commonwealth v. Jemison supra to provide the jury with requisite limiting and cautionary

instructions, inter alia, directing " ... that the evidence of prior conviction has a very limited

purpose, that being that the Commonwealth [is] trying to establish that necessary element of the

crime with which Mr. Young is charged and for no other purposes. I will further go on to say

they are not to view that evidence for any other reason including, but not limited to, evidence of

the character and/or criminal propensities." N.T. 3/15/17, pp. 8-9.

Stemming from the court's decision relevant to the tendered stipulation of the defense,

Attorney Iannucci requested that during voir dire the court inquire of the potential jurors their

ability to impartially consider the evidence of the Defendant's prior rape2° conviction. N.T.

3/15/17, pp. 9-10. In response, the court advised that via its standard voir dire instructions it

intended to inform the venire that while the jurors were the exclusive finders of fact, the court

was the sole arbiter of the case's law and the jury was to follow the law it instructed. Further, the

court detailed it would during the voir dire direct its legal rulings were to be accepted, without

question, and one (1) of these binding instructions of law would involve evidence being admitted

for a certain purpose and the jury was to limit its consideration of any such evidence to solely

that reason. Relatedly, the court relayed that it would request that any prospective juror who

could not follow these instructions make themselves known. N.T. 3/15/17, pp. 10-11.

After this court's explanation of its anticipated voir dire instructions, questions, and

recognition that jurors were presumed to abide by a court's legal instruction, Mr. Iannucci argued

that as rape21 was the underlying conviction in this matter it was necessary to have the jurors

20
18 Pa.C.S. §3121.
21
Id.

17
know the same during their selection and then question the venire about any possible resultant

bias. N.T. 3/15/17, pp. 11-18. See also Commonwealth v. O'Hannon, 557 Pa. 256, 262, 732

A.2d 1193, 1196 (1999) citing Commonwealth v. LaCava, 542 Pa. 160, 182, 666 A.2d 221, 231

(1995); Commonwealth v. Brown, 567 Pa. 272, 289, 786 A.2d 961, 971 (2001), cent denied, 537

U.S. 1187, 123 S.Ct. 135, 154 L.Ed.2d 1018 (2003) citing Commonwealth v. Travers, 564 Pa.

362, 768 A.2d 845 (2001) citing Commonwealth v. Travaglia, 541 Pa. 108, 661 A.2d 352 (1995);

and Commonwealth v. Spotz, 587 Pa. 1, 57, 896 A.2d 1191, 1224 (2006) quoting Commonwealth

v. Brown supra 567 Pa. at 289, 786 A.2d at 871 and Commonwealth v. O'Hannon supra 557 Pa.

at 262, 732 A.2d at 1196. While the Commonwealth did not advance any objection to this

defense application, it did note the Supreme Court of Pennsylvania in Commonwealth v. Jemison

supra stressed the importance of the immediacy of the curative instruction following the past

conviction being made known to the jury and the absence of the same in what Mr. Iannucci was

asking of the court. N.T. 3/15/17, p. 19. Beyond the prosecution's reasoned concern, the court

was also hesitant to advise the jury of the specific prior conviction as defense counsel had yet to

discuss the matter with the Defendant and requested his lawyers to confer with him about the

same. N.T. 3/15/17, pp. 15, 17-18, 19-22. As a solution to this ongoing defense concern, Mr.

Hoffman proposed the inquiry be combined with a cautionary instruction detailing the limited

purpose of the evidence with which this court concurred. N.T. 3/15/17, p. 22.

Immediately before the jury's selection, Mr. Iannucci advised the court that Defendant

Young was in agreement with their application to ask the potential jurors about any possible

partiality after being advised during voir dire of his past rape22 conviction. N.T. 3/15/17, p. 36.

In response to its request on how he would like the court to proceed, Mr. Iannucci offered that

the court inquire of the prospective jurors whether they could be fair and impartial on learning of

22 18 Pa.C.S. §3121.

18
the Defendant's prior conviction, then immediately provide per a curative instruction to the panel

that this information was only to be used for a specified, limited purpose, and finally ask the

venire regarding their respective ability to follow this restricting direction. N.T. 3/15/17, pp. 36-

37. With defense counsel's agreement, and absent prosecution objection, the court directed it

would advise the jury of the rape23 conviction and the admittance of such evidence for the sole

purpose that " ... it's an element of a crime the Commonwealth must prove beyond a reasonable

doubt and it must not be considered as evidence of bad character and/or criminal propensities."

N.T. 3/15/17, pp. 38-39.

Stemming from the defense attorneys' request, the court during the general voir dire of

the venire panel instructed the jury as follows:

During the trial, ladies and gentlemen, I may as the sole Judge of
the case's law allow evidence or testimony to be admitted for a
specific or a limited purpose. I'll bring to your attention any such
limitations or specific purposes along with the instruction that the
jurors consider such evidence or testimony solely for the reasons I
admitted it and for no other purposes. Is there anyone among you,
ladies and gentlemen, who could not follow this legal principle, if
so please stand. No one is standing. Ladies and gentlemen, as you
know, and I've told you, Mr. Young is accused of possess, of
person not to possess a firearm. For our purposes now, ladies and
gentlemen, this allegation requires that the Commonwealth prove
beyond a reasonable doubt two elements. One, that on the date in
question Mr. Young, ... more than 60 days prior was a person
prohibited by law from possessing and/or controlling a firearm.
The prohibitive person requires that the Commonwealth prove
beyond a reasonable doubt he has a prior disqualifying conviction.
In this instance, ladies and gentlemen, the Commonwealth alleges
that a prior disqualifying conviction is that of rape. Ladies and
gentlemen, during the trial I will allow solely for purposes of the
Commonwealth proving this one element of the crime, evidence of
this prior conviction to be admitted. That being said you will also
be instructed that it's the limited and sole purpose for which you
are to consider any such evidence. I will [relatedly] instruct that
this evidence of the past conviction must not be viewed by the
jurors as evidence of Mr. Young having a bad character and/or

23 18 Pa.C.S. §3121,

19
 criminal propensities from which the jury might be inclined to
infer guilt. Ladies and gentlemen, is there anyone among you who
could not follow these legal principles? If so please stand. z4

N.T. 3/15/17, pp. 62-64.

During the course of trial, the Commonwealth entered, with defense agreement, a

stipulation into evidence that read as follows:

It is hereby stipulated and agreed between Christopher Boggs,
Assistant District Attorney, and Glen Hoffman, counsel
for the Defendant, that the following is true. If called to testify
Angela Martinez, Esquire, Director of the Office of Judicial
Support for Delaware County would testify that C-24 is a true and
correct copy of the Defendant Michael Young's certified
conviction for rape showing that the Defendant was sentenced on
April 14, 2009.

N.T. 3/16/17, pp. 56-57. See also Commonwealth Exhibits C-24 -
Certified Copy of
Defendant Young's Certificate of Imposition of Judgment of Sentence, No. 2587-08 and C-27 -
Stipulation.

Immediately following the presentation of this stipulation and the Defendant's certified

criminal record, the court provided a cautionary directive per that below:

Ladies and gentlemen, as I told you before there are exceptions to
the general prohibition that statements of attorneys aren't
evidence. Again this is one of those exceptions [an] agreement or
stipulation. When the attorneys agree or stipulate that a certain
fact or facts are true you're to accept such with no further proof
necessary. By this stipulation, ladies and gentlemen, you've
heard Mr. Young has a prior conviction for conduct which [he] is
not now on trial. This evidence of Mr. Young's prior conviction
was allowed only for the purposes of the Commonwealth tending
to prove that he is a person prohibited by law from possessing
or controlling a firearm, an element to the specific offense with
which he is charged and as I will define for you in my concluding
legal instructions. This evidence must not be considered binding
in any other way than the purposes I've just stated. You must
not regard this evidence of the past conviction as evidence that
Mr. Young has bad character and or [sic] that Mr. Young has

24While nine (9) panel members stood in response to this inquiry and related instruction of the court, not one (1) of
these individuals was selected to serve on the jury. N.T. 3/15/17, pp. 64, 120.

20
 criminal propensities [from] which you might be inclined to infer
guilt.

-
N.T. 3/16/17, pp. 57-58. See also Commonwealth Exhibits C-24 Certified Copy of Defendant
-
Young's Certificate of Imposition of Judgment of Sentence, No. 2587-08 and C-27 Stipulation.

Likewise, this court during its final charge to the jury directed that this previous

conviction evidence must not be considered as demonstrating Defendant Young had any

propensity for criminality and/or that he in any way was of bad character, as well as the

particular purpose for which it was allowed and that the jurors' consideration of the same was

accordingly so limited:

Ladies and gentlemen, you heard during trial testimony or via
other evidence that tending to suggest that Mr. Young was
previously convicted [of] rape, a crime for which he is not now on
trial. This evidence is before you for the sole purpose of the
prosecution attempting to prove that Mr. Young was a person
prohibited by law from possessing and or [sic] controlling a
firearm, an element of the offense with which he is charged and on
trial and as I've defined the same for you. This evidence, ladies
and gentlemen, must not be considered by you in any way other
than the purpose I've just stated. You must not regard this
evidence as showing that Mr. Young is a person of bad character
from which you might be inclined to infer guilty.

N.T. 3/16/17, p. 154.

Further, relevant to these cautionary instructions this court repeatedly directed starting

with the jury's selection, offered once more on the material evidence's presentation, and again at

the trial's conclusion, "[a]bsent evidence to the contrary, the jury is presumed to have followed

the trial court's instructions." Commonwealth v. 0 'Hannon supra 557 Pa. at 262, 732 A.2d at

1196 citing Commonwealth v. LaCava supra 542 Pa. at 182, 666 A.2d at 231; Commonwealth v.

Brown supra 567 Pa. at 289, 786 A.2d at 971 citing Commonwealth v. Travers supra citing

Commonwealth v. Travaglia supra; and Commonwealth v. Spotz supra 587 Pa. at 57, 896 A.2d at

1224 quoting Commonwealth v. Brown supra 567 Pa. at 289, 786 A.2d at 871 and

21
Commonwealth v. O'Hannon supra 557 Pa. at 262, 732 A.2d at 1196. See also Commonwealth

v. Jemison supra citing Commonwealth v. Tedford supra 598 Pa. at 700, 960 A.2d at 37 ("We

reiterate that here, as in so many other contexts, the jury is presumed to follow the court's

instructions.").

The Supreme Court of Pennsylvania in Commonwealth v. Jemison supra refused to

mandate that the Commonwealth when prosecuting a person not to possess ... firearms25

allegation be compelled to acquiesce to a proffered defense, prohibited individual status

stipulation, or barred at trial from presenting evidence of a defendant's specific, identified,

predicate offense, but rather found that the trial court's timely use of limiting instructions was a

sufficient guard against such evidence's probative value being outweighed by unfair prejudice.

Id. 626 Pa. at 501, 503-04, 98 A.3d at 1261, 1262-63. As recounted above, and consistent with

the alternative course of proceeding Defendant Young's counsel suggested on its refusal to

mandate the Commonwealth accept the extended defense stipulation, this court starting with the

selecting of the jury, again at trial on the evidence of the Defendant's previous conviction being

presented, and once more during its final charge, reiterated to the jurors proper limiting and

cautionary instructions. The jury is presumed to have followed this court's directions.

Commonwealth v. 0 'Hannon supra 557 Pa. at 262, 732 A.2d at 1196 citing Commonwealth v.

LaCava supra 542 Pa. at 182, 666 A.2d at 231; Commonwealth v. Brown supra 567 Pa. at 289,

786 A.2d at 971 citing Commonwealth v. Travers supra citing Commonwealth v. Travaglia

supra; and Commonwealth v. Spotz supra 587 Pa. at 57, 896 A.2d at 1224 quoting

Commonwealth v. Brown supra 567 Pa. at 289, 786 A.2d at 871 and Commonwealth v.

O'Hannon supra 557 Pa. at 262, 732 A.2d at 1196. See also Commonwealth v. Jemison supra

citing Commonwealth v. Tedford supra 598 Pa. at 700, 960 A.2d at 37.

25 18 Pa.C.S §6105.

22
 In light of the foregoing, this court's decision cannot be seen on the instant record as an

"overriding or misapplication of the law, or the exercise of judgment that [was] manifestly

unreasonable, or the result of bias, prejudice, ill-will or partiality." Commonwealth v. Antidormi

supra 84 A.3d at 749-50 quoting Commonwealth v. Weakley supra 972 A.2d at 1188-89 citing

Commonwealth v. Carroll supra 936 A.2d at 1152-53. This assignment of error is meritless.

III Conclusion

For all the above reasons, Defendant Young's sentencing judgment should be affirmed.

BY THE COURT:

23