Com. v. McLaurin, D.

J-S28045-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant, :
:
v. :
:
:
DOMINIC JARRELL MCLAURIN, :
: No. 1538 MDA 2017
Appellee
Appeal from the Order Entered September 26, 2017
in the Court of Common Pleas of Lycoming County,
Criminal Division at No(s): CP-41-CR-0000640-2016
BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 03, 2018
The Commonwealth of Pennsylvania appeals from the Order granting
Dominic Jarrell McLaurin’s (“McLaurin”) pre-trial Motion to Preclude the
admission, at trial, of statements set forth in his prison intake document.1 We
affirm.
In its Opinion, the trial court set forth the relevant history underlying
the instant appeal as follows:
By Information filed on April 28, 2016, [McLaurin] was
charged with two counts of possession with intent to deliver
controlled substances[2] and related counts. The charges ar[o]se
____________________________________________
1 The Commonwealth has certified that the suppression court’s Order will
terminate or substantially handicap its prosecution, in accordance with
Pa.R.A.P. 311(d).
2 See 35 P.S. § 780-113(a)(30).
J-S28045-18
out of an incident that allegedly occurred on [February 3, 2016,3]
when Trooper Tyson Havens and Trooper Edward Dammer of the
Pennsylvania State Police were on patrol in the Newberry section
of Williamsport, confronted [McLaurin,] who was seated in the
driver’s seat of a motor vehicle and, after further investigation,
discovered eight packs of heroin in the vehicle.
A jury was selected on August 22, 2017[,] and the case was
scheduled for a jury trial to begin on September 26, 2017.
Prior to the jury being brought into the courtroom and
sworn, the parties met with the court for the purpose of
[McLaurin] raising oral motions.
[McLaurin’s] first motion consisted of a [M]otion in limine to
preclude the use of [] McLaurin’s intake document from the
Lycoming County Prison. On September 22, 2017, the
Commonwealth filed a Notice of Intent to Introduce Certified
Records pursuant to Pennsylvania Rule of Evidence 902(11).
Among the records were a [m]edical [a]dmission form[,] dated
March 1, 2016, apparently completed by a prison nurse[,] which,
among other things, reads as follows:
“Street drug use: denies”, “current prescribed medication:
Percocet, ten milligrams—twenty milligrams/daily—since
2015”, and a medication administration record noting
under “medication” “Tramadol 50 mg’s … 3 days prn” and
[“]Tramadol 50 mg … 3 days prn.”
The medication administration record also indicated[,]
under “hour”[,] the numbers 8 and 12 for the first Tramadol
entry[,] and the number 6 for the second Tramadol entry. The
medical administration record also included the initials of a person
under the numbers 16, 17 and 18[,] corresponding to the 8 and
12 entries[,] and initials of a person under the numbers 15, 16
and 17[,] corresponding with the 6 entry.
The Commonwealth intended to introduce the [m]edical
[a]dmission form for the purpose of proving that [McLaurin]
denied street drug use[,] thus proving that the drugs allegedly
____________________________________________
3In its Opinion, the trial court mistakenly states that the incident took place
on January 3, 2016. See Trial Court Opinion, 12/19/17, at 1.
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J-S28045-18
possessed by him[, approximately one month prior to his arrest,]
were for the purpose of distribution and not personal use.
[McLaurin] objected to the use of the form[,] arguing that it
was hearsay and prejudicial.
The Commonwealth argued that it was admissible as a
business record certified under Rule 902(11).
Further, the Commonwealth wanted to introduce portions of
the [medical intake documents,] where[in] [McLaurin] allegedly
admitted to taking Percocets [sic], as well as [McLaurin’s] detox
observation record from March 1, 2016[,] to March 4, 2016. The
Commonwealth argued that “it indicates that [McLaurin] exhibited
zero symptoms of detox and received no treatment for detox.”
The Commonwealth argued that the detox observations prove that
[McLaurin] was “not withdrawing from anything.”
In addition to [McLaurin’s] hearsay and prejudice argument,
[McLaurin] contended that it was not relevant. Specifically, the
incident occurred on February 3, 2016[,] and [McLaurin] was
admitted to the Lycoming County [P]rison on March 1, 2016[,]
after he was taken into custody.
Trial Court Opinion, 12/19/17, at 1-3 (footnotes added).
After a hearing, the trial court granted McLaurin’s Motion to Preclude, at
trial, the admission of the medical intake forms, concluding that the forms’
statement regarding McLaurin’s narcotics use was prejudicial, not relevant,
and constituted impermissible hearsay. N.T., 9/26/17, at 10. The trial court
additionally concluded that evidence regarding McLaurin’s admission that he
was taking Percocet on March 1, 2016, without expert testimony, would
confuse the jury and cause the jury to speculate as to whether McLaurin
possessed narcotics for personal use in early February 2016. See Trial Court
Opinion, 12/19/17, at 3.
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The Commonwealth filed a Notice of Appeal, followed by a court-ordered
Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
The Commonwealth presents the following claims for our review:
I. Whether the trial court erred by misapplying the law in
granting [McLaurin’s] Motion to Preclude Evidence?
II. Whether the trial court erred by precluding the evidence
based on the timeliness of discovery[,] when less severe
remedies were available?
III. Whether the trial court erred by granting [McLaurin]
relief, in part, on grounds not asserted in his Motion to
Preclude Evidence?
Brief for the Commonwealth at 7.
Our standard of review of an order granting or denying a motion in
limine is well settled:
When ruling on a trial court’s decision to grant or deny a motion
in limine, we apply an evidentiary abuse of discretion standard of
review. The admission of evidence is committed to the sound
discretion of the trial court, and a trial court’s ruling regarding the
admission of 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. Mangel, 181 A.3d 1154, 1158 (Pa. Super. 2018)
(quoting Commonwealth v. Moser, 999 A.2d 602, 605 (Pa. Super. 2010)).
In reviewing the trial court’s Order, we are cognizant that “[e]vidence is
relevant if it has any tendency to make a fact more or less probable than it
would be without the evidence[,] and the fact is of consequence in determining
the action.” Pa.R.E. 401. However, “[t]he court may exclude relevant
evidence if its probative value is outweighed by the danger of ... unfair
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prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.” Pa.R.E. 403.
The Commonwealth claims that the trial court misapplied the law in
granting McLaurin’s Motion to Preclude. Brief for the Commonwealth at 12.
In support, the Commonwealth asserts that the statements in McLaurin’s
medical intake forms are admissible pursuant to Pennsylvania Rules of
Evidence 803(4) (Statement Made for Medical Diagnosis or Treatment) and
803(6) (Records of a Regularly Conducted Activity). Brief for the
Commonwealth at 12-13. In support, the Commonwealth states that it
provided to the trial court a notarized certification that McLaurin’s prison
medical records “were made at or near the time of the occurrence of the
matters set forth [therein], or from information transmitted by [] a person
with knowledge for those matters;” were kept in the course of a regularly
conducted activity; and were made as a regular practice. Id. at 14. The
Commonwealth proffers that McLaurin, if addicted to street drugs, would have
been unable to obtain them during his incarceration. Id. As such, McLaurin
“would be in danger of withdrawing[,] which would require medical
treatment.” Id.
Further, the Commonwealth contends that McLaurin’s statement in the
medical intake forms, regarding a hernia in his back and his prescription for
Percocet, were made for the purpose of continuing medical treatment. Id.
Therefore, the Commonwealth posits, the statements in McLaurin’s medical
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J-S28045-18
intake forms “fell under the hearsay exceptions found in Pa.R.E. 803(4) and
(6).” Brief for the Commonwealth at 15.
The Commonwealth also argues that the observations set forth in one
of the medical forms, McLaurin’s Detox Observation Record, should be
admissible under Pa.R.E. 803(4) and (6) “as a business record exception to
hearsay[,] as it was part of the certified records provided to [McLaurin].” Brief
for the Commonwealth at 15. The Commonwealth proffers that a symbol used
in the record (a “0” with a line through it) indicated that McLaurin showed no
symptoms of “detoxing,” and that “no treatment was provided to [McLaurin]
for detoxing.” Id. The Commonwealth contends that the meaning of the zero
with a line through it is a universal symbol that any lay person would
understand. Id. at 16. According to the Commonwealth, under these
circumstances, the trial court abused its discretion when it precluded
information provided on the Detox Observation Record as hearsay. Id.
Initially, we observe that in its Pa.R.A.P. 1925(b) Concise Statement,
the Commonwealth preserved the following issue regarding the admissibility
of McLaurin’s medical documents: “The trial court erred when it granted
[McLaurin’s] [M]otion to Preclude Evidence.” Commonwealth’s Concise
Statement, 10/18/17, at ¶ 1. The Commonwealth did not identify the trial
court’s alleged misapplication of Rules of Evidence 803(4) or 803(6) as issues
to be raised on appeal. Consequently, the Commonwealth’s claim as to the
records’ admissibility, pursuant to Rules of Evidence 803(4) and 803(6), is not
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preserved for appellate review. See Commonwealth v. Hill, 16 A.3d 484,
491 (Pa. Super. 2011) (stating that “[a]ny issues not raised in a [Rule]
1925(b) statement will be deemed waived.”) (emphasis omitted)).
In its first claim, the Commonwealth additionally argues that “[t]he trial
court erred when it ruled that the medical record evidence was not relevant
and extremely prejudicial.” Brief for the Commonwealth at 16. The
Commonwealth asserts that the information in McLaurin’s medical forms “is
extremely material as it would show that [McLaurin] denied street drug use[,]
and that he was not detoxing from drug use.” Id. at 17. The Commonwealth
further argues that there is probative value to this information “because the
fact that [McLaurin] denied street drug use tends to establish the proposition
that the drugs found were held with the intention to deliver them, not
personally use them.” Id. The Commonwealth points out that it would be
presenting expert testimony to establish that “if a street drug user were to
suddenly stop using the street drug, the user almost always detoxes.” Id.
Thus, the Commonwealth asserts, the evidence would “make the fact that
[McLaurin] was a drug dealer more probable than it would be without the
evidence ….” Id.
In its Opinion, the trial court addressed this claim and concluded that it
lacks merit. See Trial Court Opinion, 12/19/17, at 4-9. We agree with the
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J-S28045-18
sound reasoning of the trial court, as set forth in its Opinion, and affirm on
this basis as to McLaurin’s first claim.4 See id.
We will address the Commonwealth’s second and third claims together.
In its second claim, the Commonwealth argues that the trial court improperly
precluded the admission of the prison medical forms based on the timeliness
of discovery, when less severe remedies were available. Brief for the
Commonwealth at 20. The Commonwealth acknowledges the trial court’s
statement that it did not fault the Commonwealth for the timeliness of its
production of the medical records. Id. at 21. Nevertheless, the
Commonwealth disputes the trial court’s statement that “three working days
was not as sufficient amount of time to obtain appropriate rebuttal testimony
or to determine if [McLaurin] would like to testify.” Id. According to the
Commonwealth, suppression of the records was not warranted, and the more
appropriate remedy would be a continuance. Id.
In its third claim, the Commonwealth argues that the trial court erred
by granting McLaurin relief, in part, on grounds not asserted in McLaurin’s
Motion in Limine. Id. According to the Commonwealth, McLaurin’s Motion
sought to preclude evidence regarding his prison medical forms “based upon
the evidence being prejudicial, hearsay, and the lapse in time between the
____________________________________________
4 In its Opinion, the trial court incorporated its on-the-record statement of its
reasoning, as set forth in the Notes of Testimony of the hearing on McLaurin’s
Motion in Limine. See Trial Court Opinion, 12/19/17, at 4-6.
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J-S28045-18
alleged incident and the prison intake date.” Id. at 22. The Commonwealth
argues that the trial court raised the timeliness issue sua sponte, and relied
on the timing of discovery, in part, in granting McLaurin’s Motion. Id. The
Commonwealth points out that during argument on McLaurin’s Motion in
Limine, the trial court improperly inquired as to whether Commonwealth’s
evidence would infringe on McLaurin’s right to remain silent. Id. The
Commonwealth argues that the trial court’s reliance on issues not raised by
McLaurin constitutes an abuse of discretion. Id.
In its Opinion, the trial court addressed these claims and concluded that
they lack merit. See Trial Court Opinion, 12/19/17, at 10. We agree with the
sound reasoning of the trial court, as set forth in its Opinion, and affirm on
this basis with regard to the Commonwealth’s second and third claims. See
id.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/03/2018
-9-
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217 THE RULES OF APPELLATE PROCEDUlti42 A.3d 1017, 1027 (Pa. 2012) (citations omitted). "An abuse of discretion may not
be found merely because an appellate court might have reached a different conclusion, but
requires a result ofimanifest unreasonableness, or partiality, prejudice, bias or ill will or such
lack of support so as to be clearly erroneous." Id
Rule 401 of the Pennsylvania Rules of Evidence defines relevant evidence as
"evidence having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence." Pa. R. E. Rule 401.
The proposed evidence by the Commonwealth was clearly not relevant. The
fact that the defendant denied street drug use on March 1, 2016 does not make it more or less
probable that on February 3, 2016 the defendant possessed heroin and crack cocaine with the
intent to deliver said substances. The fact that the defendant was prescribed Percocet daily
since 2015 does not make it more or less probable that he possessed with intent to deliver on
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February 3, 2016 heroin and/or cocaine. The fact that defendant was on detox observation on
March 1 through March 4 of 2016 and was administered Tramadol for as little as three or at
most six days while in the Lycoming County prison does not make it more or less probable
that he possessed with intent to deliver heroin and/or crack cocaine on February 3, 2016.
Evidence that is not relevant is not admissible. Pa. R.E. Rule 402.
Alternatively, the 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. Rule 403.
As this Rule confirms, there are dangers that outweigh relevancy. "Even
relevant evidence can render a trial unfair, or produce an irrational result, Pa. RE. Honorable
Mark I. Bernstein, p. 141.
If the probative value of evidence is outweighed by the danger of unfair
prejudice, the evidence may be precluded. In order to meet this standard, the evidence must
create any undue tendency for the jury to decide the case on an improper basis. Pa. R. E. 403,
comment; Commonwealth v. Hairston, 624 Pa. 143, 84 A.3d 657, 666, cert denied, 135 S.
Ct. 164 (U.S. 2014). Clearly to admit the proposed evidence would be to invite the jury to
render a decision on an improper basis. Indeed, the jury would be invited to render a decision
not on the basis of the facts but on the basis of speculation. More specifically, the jury would
be required to unfairly speculate as to the meaning and context of the documents and the
information and the information set forth on the documents. What are street drugs? What
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does the word "denies" mean when the question is street drug use. What does the
administration of Tramadol mean? What is a detox observation? What is a zero with a line
through it mean under symptoms? What does a zero with a vertical line through it mean with
respect to treatment? What do blood pressure measurements, pulse and temperature mean
with respect to detox? Most importantly, do any of these observations and/or facts as of
March 1, 2016 relate to anything that occurred on February 3, 2016?
Finally, the proposed evidence constituted inadmissible hearsay. The
Commonwealth argued that the hearsay objection could be overcome because "it's a business
record, your honor, kept in the normal course which is part of the certification. And, also,
under Rule 902 (11), certified domestic records of regularly conducted activity can be
certified in lieu of having the witness present to testify, which we do have, your honor, the
certification that is indeed notarized and the certification by Brad Shoemaker that these are
regularly kept in the order of normal business, these records." (transcript, p. 4).
The Commonwealth's reliance on Rule 902 (11) is misplaced. The purpose of
the Rule is to authenticate a document. The Rule permits certain categories of exhibits to be
"received in evidence without further proof of genuineness." Commonwealth v. Brooks, 352
Pa. Super. 394, 398 n.1; 508 A.2d 316, 318 n.1 (1986).
However, the rule against hearsay is not overcome by self-authentication. The
elimination of additional evidence for authenticity does not render the evidence admissible
for the truth of its Contents.
To overcome the hearsay problem, the Commonwealth argued that it was a
9
"business record." The business records exception to the hearsay rule is found in Pa. REvid.
803 (6).
"Pennsylvania permits, as an exception to the hearsay rule, the admission into
evidence of medical records, as business records, to show the fact of hospitalization,
treatment prescribed and symptoms manifested by not the admission of opinions and
diagnoses contain in business records." Commonwealth v. Christy, 540 Pa. 192, 207; 656
A.2d 877 (1995), cert. denied. 516 U.S. 872 (1995).
The portions of the records that the Commonwealth intended to utilize would
not constitute fact of hospitalization, treatment prescribed or symptoms manifested. In fact,
the portions of the documents include responses made by the defendant to certain questions
and in administration record and detox observation record. Unfortunately for the
Commonwealth, and while the court recognizes that an argument can be made that the
records do reflect some treatment prescribed or symptoms manifested, they are speculative at
best and even if they come within the business records exception to the hearsay rule, they are
not admissible.
Finally, the Commonwealth argues that the court precluded the evidence based
on the timeliness of discovery and on grounds not asserted by defendant. A review of the
record demonstrates that these assertions are simply not true. While the court referenced the
timeliness issue, it noted such in the context of prejudice. Moreover, and determinatively,
defendant raised three issues in support of his motion in limine: relevancy, prejudice and
hearsay. The court granted the motion on all three grounds.
10
Date: fa'fif-11
Marc F. Lovecchio, Judge
cc: Nicole Ippolito, Esquire (ADA)
Matthew Welickovitch, Esquire (APD)
Work File
Gary Weber, Esquire (Lycoming Reporter)
Superior Court (original and 1)
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