Com. v. Ackerman, J.

J-A28037-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
:
JACOB WILLIAM ACKERMAN :
: No. 240 WDA 2020
Appeal from the Order Entered January 13, 2020
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0001961-2018
BEFORE: OLSON, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED DECEMBER 21, 2020
The Commonwealth appeals from the order entered in the
Westmoreland County Court of Common Pleas, granting in part the oral
motion in limine of Jacob William Ackerman (Appellee).1 The Commonwealth
avers: (1) it preserved a challenge to the untimely or surprising nature of
Appellee’s motion; and (2) the trial court erred in ruling evidence of rifle,
ammunition, and ballistic evidence was not admissible at trial. We affirm.
On appeal, the Commonwealth avers the following: Appellee “was a
trainee-employee at West Penn Power and its Hempfield Township,
Westmoreland County training facility.” Commonwealth’s Brief at 7. On April
28, 2018, the trainees received their employment assignments, but an
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1The Commonwealth certified in its notice of appeal that the trial court’s order
substantially handicaps its prosecution of this matter. See Pa.R.A.P. 311(d).
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employment position was not extended to Appellee. Id. That same morning,
Appellee recorded and distributed a video of himself “to fellow students in a
group-chat message.” Id. The video showed Appellee stating, “[W]e are
going in boys,” and “I got the vest,” and showed “an AR-15 assault style rifle,
ammunition and ballistic vest.” Id. The other students alerted West Penn
Power supervisors, who then notified the police.
Pennsylvania State Police Trooper Dominick Berlin responded to West
Penn Power’s call that same morning. Trooper Berlin also interviewed
Appellee, who acknowledged he “sent the cell phone video[, but] related that
he would never hurt anyone nor think of doing so[, and] that his actions and
sending the video was not the best choice.” Affidavit of Probable Cause,
Attachment to Police Criminal Complaint, 5/11/18. According to the
Commonwealth, state troopers recovered a rifle, ammunition, and a ballistics
vest from Appellee’s residence. Commonwealth’s Brief at 8-9. An information
was filed on July 11, 2018, charging Appellee with three counts of terroristic
threats.2
Eighteen months later, on January 13, 2020, the parties appeared
before the trial court for jury selection. See Commonwealth’s Brief at 10.
Appellee, however, presented a motion in limine,3 seeking to preclude the
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2 18 Pa.C.S. § 2706(a)(1)-(2).
3 There is no written motion in limine in the record or on the trial docket.
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Commonwealth from introducing both: (1) the video; and (2) the assault rifle,
ammunition, and ballistic vest depicted in the video. N.T., 1/13/20, at 2, 8.
Appellee argued, inter alia, the presence of a rifle, “right in front of the jury,”
would “enflame the jury especially . . . where we have such a veracious gun
debate [and] do nothing but make them make an emotional decision.” Id. at
3. The Commonwealth responded all of its evidence would be prejudicial
against Appellee, but the proper standard is whether evidence would be
unduly prejudicial, and the mere “fact that [evidence] would make the jury
consider [Appellee’s] guilt more heavily [does not go to] whether the Court
should keep it out.” Id. at 4-5.
On the same day, January 13, 2020, the trial court issued the underlying
order, denying in part Appellee’s motion in limine by allowing the
Commonwealth to introduce the video. However, the order granted Appellee’s
motion in part by precluding the rifle, ammunition and ballistic vest. Order,
1/14/20.4 The court found the rifle, ammunition, and ballistic vest were
relevant evidence “only insofar as [they] would tend to show that the threat
was communicated by [Appellee] with the intent to terrorize the recipients,”
and that the items “are real.” Opinion & Order of Court, 1/14/20, at 2.
However, the court also reasoned that neither Appellee’s “ability to carry out
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4 The trial court’s “Opinion and Order of Court” is dated January 13, 2020, but
was entered on the trial docket with a filing date of January 14th. For ease of
review, we cite this filing with the January 14, 2020, docket-entry date.
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the alleged threat,” nor the video recipients’ perception as to whether “the
threat would be carried out,” is an element of the offense charged (terroristic
threats). Id. The court concluded the “limited probative value” of the
evidence was outweighed by, “in the [c]ourt’s view,” the Commonwealth’s
“attempt to arouse the jury’s sense of horror and . . . appeal to the jury’s
emotions rather than to its intellect.” Id. at 2.
The Commonwealth filed a motion for reconsideration, arguing for the
first time that it did not have “advance notice” of Appellee’s motion in limine
and thus was not prepared to respond and did not have witnesses present.5
Commonwealth’s Motion for Reconsideration, 1/27/20, at 2. The
Commonwealth further averred the trial court should have created an
evidentiary record, and not just heard oral argument, before ruling on the
motion. Id.
The trial court issued an order, noting the Commonwealth did not object
to “being surprised by [Appellee’s] motion in limine” at the time of the hearing,
and the reconsideration motion did not specify “what relevant testimony and
evidence it now seeks to present.” Order, 1/27/20. The court thus deferred
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5 This motion did not challenge the merits of the evidentiary ruling. We also
note this motion is dated January 15, 2020, and the trial court’s responsive
order is dated January 23rd. See Commonwealth’s Motion for
Reconsideration, at 3; Order, 1/27/20. However, both are entered on the trial
docket with filing dates of January 27th. We cite these filings with their
January 27, 2020, docket-entry dates.
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ruling on the Commonwealth’s motion pending “an offer of proof of the
testimony and evidence” relevant to the in limine ruling. Id. The
Commonwealth filed a response on February 4, 2020. Before the trial court
issued a ruling, however, the Commonwealth filed a timely notice of appeal
on February 12, 2020. It subsequently complied with the court’s order to file
a Pa.R.A.P. 1925(b) statement of matters complained of on appeal.
The Commonwealth raises the following issue for our review:
Did the trial court err when on the day this case was scheduled
for trial, the court received, considered and granted [Appellee’s]
Motion in Limine without an evidentiary hearing because the court
determined that the firearm, ballistic vest and ammunition
[Appellee] used to commit the charged crime, Terroristic Threats,
was generally irrelevant to the crime and the prejudicial value
resulting from the introduction of such evidence at trial
outweighed its probative value, thereby barring the
Commonwealth from introducing the evidence at trial[?]
Commonwealth’s Brief at 6.
The Commonwealth discussion presents two claims: (1) that it did not
waive, as the trial court suggests, a procedural challenge to Appellee’s
“surprise[ ]” motion in limine; and (2) the trial court erred in precluding from
evidence the rifle, ammunition, and ballistic vest. Commonwealth’s Brief at
19, 34. We review these seriatim.
The Commonwealth first addresses the trial court’s contention that it
“waived any procedural objections to” Appellee’s motion in limine.
Commonwealth’s Brief at 19. The Commonwealth maintains that over a year
and a half (following Appellee’s July 2018 formal arraignment), the case
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“proceeded through numerous calls of the criminal list” without any mention
by Appellee of a pre-trial motion. Id. at 20. Indeed, the Commonwealth
points out, Appellee appeared before the court on January 9, 2020, “and called
his case ready to proceed to trial on January” 13th. Id. However, at the
January 13th proceeding, Appellee hand-delivered a motion in limine, where
the Commonwealth “noted for the trial court that [it] had just received the
motion,” and the trial court likewise “recognized that it had not even seen
[Appellee’s] motion in Limine.” Id. at 21, quoting N.T., 1/13/20, at 2 (trial
court stating: “[Defense counsel], I haven’t seen your motion yet, but I will
look at it as you speak, so go ahead.”). The Commonwealth further avers the
trial court should not have ruled on the motion in limine in the absence of an
evidentiary record. See id. at 29. After careful review, we agree with the
trial court this procedural challenge is waived.
“Error may not be predicated upon a ruling that admits [ ] evidence
unless . . . a timely objection . . . appears of record, stating the specific ground
of objection, if the specific ground was not apparent from the context[.]”
Commonwealth v. Parker, 104 A.3d 17, 28 (Pa. Super. 2014), citing
Pa.R.Evid. 103(a)(1). See also Commonwealth v. Bruce, 916 A.2d 657,
671 (Pa. Super. 2007) (“[A] failure to offer a timely and specific objection
results in waiver of this claim.”).
The Commonwealth does not point to, and our review has not revealed,
any particular place in the January 13, 2020, hearing where it objected to the
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untimely or surprising nature of Appellee’s motion in limine. See also
Pa.R.A.P. 2117(c)(1), 2119(e) (where “an issue is not reviewable on appeal
unless raised or preserved below,” the statement of the case and argument
sections of an appellant’s brief must specify the place in the record where their
issue was raised before the trial court). Although both the Commonwealth
and the trial court commented they just received the motion at the hearing —
and the trial court stated it would nevertheless hear the merits therein — the
Commonwealth advanced no argument that it was unfairly surprised by the
motion, or that the court should not entertain the motion. See Parker, 104
A.3d at 28. Accordingly, we conclude this particular claim is waived.
Next, the Commonwealth contends the trial court abused its discretion
in excluding the assault rifle, ammunition, and ballistic vest recovered from
Appellee’s residence. The Commonwealth maintains this evidence was “highly
probative to establish [Appellee] threatened a mass shooting[ ] and intended
to terrorize his victims and inflict psychological distress.” Commonwealth Brief
at 36. It asserts “these items are inseparable from video itself[ as] they are
all part of the whole terroristic threat,” “[c]ontext and perspective matter,”
and that “[a]bsent the rifle, ammunition and ballistic vest, [Appellee’s] video
is pruned [sic] to merely [Appellee] laughing and stating he is ‘going in’ with
‘a vest,’ thereby substantially changing the threat communicated.” Id. at 39,
40. Finally, the Commonwealth argues the court’s finding, that the probative
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value of the evidence would be outweighed by its prejudicial effect, “was based
upon . . . mere speculation.” Id. at 50. We conclude no relief is due.
“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. Page,
965 A.2d 1212, 1219 (Pa. Super. 2009) (citation omitted). This Court has
stated:
Evidence, even if relevant, may be excluded if its probative value
is outweighed by the potential prejudice. Pa.R.E. 404(b)(3).
The probative value of the evidence might be outweighed
by the danger of unfair prejudice, confusion of the issues,
misleading the jury, undue delay, pointlessness of
presentation, or unnecessary presentation of cumulative
evidence. Pa.R.E. 403. The comment to Pa.R.E. 403
instructs that: “‘Unfair prejudice’ means 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.” Pa.R.E. 403 cmt. Additionally,
when weighing the potential for prejudice, a trial court
may consider how a cautionary jury instruction might
ameliorate the prejudicial effect of the proffered
evidence. Pa.R.E. 404(b) cmt.
However, “[e]vidence will not be prohibited merely because it is
harmful to the defendant.” “[E]xclusion is limited to evidence so
prejudicial that it would inflame the jury to make a decision based
upon something other than the legal propositions relevant to the
case.”
Id. at 1220 (some citations omitted).
Appellant was charged under the following subsections of the terroristic
threats statute:
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(a) Offense defined.—A person commits the crime of
terroristic threats if the person communicates, either directly or
indirectly, a threat to:
(1) commit any crime of violence with intent to terrorize
another; [or]
(2) cause evacuation of a building[.]
See 18 Pa.C.S. § 2706(a)(1)-(2). This Court has explained:
“[N]either the ability to carry out the threat nor a belief by the
person threatened that it will be carried out is an essential element
of the crime.” “Rather, the harm sought to be prevented by the
statute is the psychological distress that follows from an invasion
of another’s sense of personal security.”
Commonwealth v. Kline, 201 A.3d 1288, 1290 (Pa. Super. 2019), appeal
denied, 216 A.3d 1038 (Pa. 2019).
In the case sub judice, the trial court viewed the video at issue. Rule
1925(a) Op., 6/2/20, at 2.6 In excluding evidence of the rifle, ammunition,
and ballistic vest from presentation at trial, the court reasoned:
The [c]ourt considered the video and the parties’ arguments in
balancing the probative value of the excluded items against their
danger for unfair prejudice. As stated in the Commonwealth’s
Answer, “it is the making of the threat with intent to
terrorize that constitutes the crime,” and not [Appellee’s]
“intent to carry out the threat.” On this basis the [c]ourt
concluded that where [Appellee’s] alleged threat was a recorded
and distributed video, presentation of the rifle, ammunition and
ballistic vest depicted in the video would too likely “arouse the
jury’s sense of horror and provoke its instinct to punish, and more
generally be an appeal to the jury’s emotions rather than to its
intellect,” and would outweigh the items’ limited probative value
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6 This opinion is dated May 27, 2020, but entered on the trial docket with a
filing date of June 2nd.
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of [Appellee’s] intent to terrorize. The Commonwealth’s Motion
for Reconsideration and Answer suggest nothing new that was not
already presented by the Commonwealth at argument and
considered by the Court in ruling that the danger for unfair
prejudice in presenting the above items outweighs their limited
probative value.
Id. at 2-3 (citations omitted). We agree with this analysis.
As the Commonwealth acknowledges, the terroristic threats charges do
not require a showing of Appellee’s ability to carry out the threat or a belief,
by the individuals who received or viewed the video, that Appellee would carry
out the threat. See 18 Pa.C.S. § 2706(a)(1)-(2); Kline, 201 A.3d at 1290;
Commonwealth’s Brief at 38. Instead, the Commonwealth must establish
Appellee communicated, “directly or indirectly, a threat to commit [a] crime
of violence with intent to terrorize another[, or] cause evacuation of a
building.” See 18 Pa.C.S. § 2706(a)(1)-(2). Where the trial court ruled the
video was admissible at trial, the court found the presentation of the rifle,
ammunition, and ballistic evidence would have “limited probative value,”
which would be outweighed by the potential prejudice of “arous[ing] the jury’s
sense of horror” and appealing to the jury’s emotions. See Trial Ct. Op. at 2-
3. The court did not abuse its discretion, and we do not disturb its order
granting in part and denying in part Appellee’s motion in limine. See Page,
965 A.2d at 1219.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2020
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