J-A26038-20
2020 PA Super 294
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
NASEEMA SAMI : No. 252 EDA 2020
Appeal from the Order Entered January 3, 2020
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0003563-2019
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED DECEMBER 22, 2020
The Commonwealth of Pennsylvania appeals from the order of the Court
of Common Pleas of Montgomery County denying the Commonwealth’s motion
in limine seeking to introduce prior bad act evidence in the prosecution of
Appellee Naseema Sami (“Sami”) in her upcoming double murder trial. The
trial court’s order prohibits the Commonwealth from presenting or attempting
to elicit evidence regarding Sami’s possession or use of any drug other than
marijuana. The Commonwealth has certified that the trial court’s ruling will
terminate or substantially handicap the prosecution. See Pa.R.A.P. 311(d).
After careful review, we affirm the trial court’s order.
The trial court compiled the following factual background from the
parties’ pretrial motions and responses:
On Sunday, March 10, 2019, at 8:17 p.m., the West
Norriton Township Police Department was dispatched to check the
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* Former Justice specially assigned to the Superior Court.
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welfare of Lila Frost who resided in the first floor apartment at 10
West Indian Lane, West Norriton Township, Montgomery County,
Pennsylvania. An upstairs tenant had not seen Lila Frost for
several days although her vehicle was parked at the property. On
Sunday, March 10, a concerned neighbor called the police to
request that they check on Lila Frost.
West Norriton Police Sergeant Dale Butler and Patrol Officers
Nathan Landes and Brian Bishop arrived on location and found the
front door to the first floor apartment secured. With the
assistance of a family member, the officers gained access to the
first floor apartment through the rear door. In the bedroom,
officers observed a female, Naseema Sami, age 43, and her son,
age 6, emerge from underneath a bed. Sergeant Butler observed
what he believed to be dried blood on Naseema Sami’s hands. In
a tub in the bathroom, Sergeant Butler located a deceased female,
later identified as Lila Frost, age 78. Sergeant Butler located a
second deceased female underneath a table in the kitchen, who
later was identified as Lorraine Gigliello, age 68.
On Sunday, March 10, 2019, Montgomery County Detective
Gregory Henry and West Norriton Township Police Detective
Charles Naber interviewed Naseema Sami, a resident of Ridley
Township, Delaware County. Sami told detectives she drove to
10 West Indian Lane on Thursday, March 7, 2019, because she
had once resided there twenty (20) years earlier and desired a
safe place to go. Sami stated that Frost, her previous landlord at
10 West Indian Lane, told Sami she could contact her if she ever
needed anything.
Sami and her six year old son entered an unlocked door to
the rear of Lila Frost’s first floor apartment. Sami told detectives
that no one was in the residence at the time. While inside the
residence, Sami answered a knock at the front door and
recognized a woman known to Sami as Lorraine. Sami thought
that Lorraine was going to call the police on her. Sami began to
strike Lorraine with several blows to the face and chest. Sami
stated that, while fighting with Lorraine, Lila Frost entered the
apartment from the rear door. Sami stated that she cut Lorraine
with a tomato sauce bottle. Sami stated that she kicked Lila Frost
into the bathtub and struck her in the head and neck until she
died. Sami and her son did not leave the residence and were
present when the police arrived three days later.
Trial Court Opinion (T.C.O.), 3/12/20, at 1-3 (paragraph spacing added).
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After Sami was searched incident to arrest and consented to a search of
her vehicle, no contraband was recovered from her person or her vehicle.
Sami was not required to submit to drug testing upon her entry to prison.
Investigating officers did not apply for a search warrant for Sami’s home.
Several days after Sami’s arrest, on March 13, 2019, Sami’s brother,
Ibraheem Choudhry (“Ibraheem”),1 gave a statement to the police, in which
he disclosed that Sami was a marijuana user. He also indicated he had
recently gone to Sami’s house to retrieve clothes for Sami’s son and made the
following observations:
I saw a bottle of generic Prozac in [Sami’s] name, it looked pretty
old. I also saw drug paraphernalia, a marijuana pipe on her
bedroom dresser. In a box in her closet there was [sic] empty
baggies with residue, foil ball with something in it, marijuana
grinder and different pipes.
Pre-trial Hearing, 11/22/19 at 40-42 (quoting Statement of Ibraheem
Choudhry, 3/13/19, at 3).2
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1 We refer to Ibraheem Choudhry as “Ibraheem” as the testimony of Sami’s
father, Muhammed Choudhry, is also relevant to this case.
2 We note that the initial statement of Ibraheem Choudhry, the statements of
Charlotte Sami and Muhammed Choudhry, and the expert report of
prosecution expert Dr. John O’Brien (as discussed infra) were not included in
the certified record submitted to this Court. It is well established that “[t]his
Court cannot meaningfully review claims raised on appeal unless we are
provided with a full and complete certified record.” Commonwealth v.
Miller, 212 A.3d 1114, 1127 (Pa.Super. 2019).
After an informal inquiry was made to the trial court through this Court’s
Prothonotary to locate the missing documents, there is no evidence that the
Commonwealth caused the problem in transmitting the record. In addition,
both parties and the trial court quote the relevant portions of each document.
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On March 14, 2019, officers interviewed Sami’s parents, Charlotte Sami
and Muhammed Choudhry. Sami’s mother, Charlotte Sami, admitted that
“[w]e suspected that [Sami] was using drugs in the early 90’s, I don’t know
what kind of drugs. That was based on her appearance at the time. I don’t
know about drugs or alcohol recently.” T.C.O. at 6 (quoting Statement of
Charlotte Sami, 3/14/19, at 2). Muhammed Choudhry recalled that his
daughter, Sami, got into trouble with alcohol about fifteen years earlier, but
did not think she currently used drugs or alcohol. T.C.O. at 6 (citing Statement
of Muhammed Choudhry, 3/14/19, at 2).
On July 23, 2019, the prosecution charged Sami with first-degree
murder (two counts), third-degree murder (two counts), and other related
charges. On October 23, 2019, Sami filed a notice of insanity defense and a
report prepared by defense expert Dr. David DeMatteo, who concluded that
Sami satisfied the diagnostic criteria for Delusional Disorder and opined that
she was experiencing delusional beliefs and intense paranoia at the time of
the instant offenses such that “her ability to understand the nature/
wrongfulness of her actions was significantly compromised due to her severe
mental illness.” DeMatteo Expert Report, at 25.
Dr. DeMatteo also specified that during his evaluation, Sami denied any
significant history of substance abuse, but admitted to using marijuana
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In the interest of judicial economy, we will review the prosecution’s claim as
if these omitted documents were part of the certified record. See Miller,
supra.
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“occasionally” due to pain from cramps and in her neck. DeMatteo Report, at
14. In addition, Dr. DeMatteo had also interviewed Sami’s parents, who
disclosed that they believed that Sami “hid” her alcohol use from them and
likely used drugs, but they did not have firm evidence of her drug use. Id.
Sami’s parents revealed that they had found in Sami’s bedroom “a hash pipe
and drug paraphernalia, an e-cigarette with a ‘thick, syrupy liquid,’ and a cigar
box that contained a razor blade, ‘white powder’ and a ‘tablet.’” Id. at 14-15.
Sami’s father told Dr. DeMatteo that Sami’s “face was changing and her
attitude was changing … like drug people.” Id. at 15.
On November 21, 2019, during a witness preparation meeting,
Ibraheem provided additional details about the drug paraphernalia found in
Sami’s bedroom after the crimes at issue. Ibraheem had observed glass
straws or pipes that were scorched on one end, as well as plastic baggies
containing a translucent, brown crystalline residue that “might have been”
methamphetamine. Statement of Ibraheem Choudhry, 11/21/19, at 2-3.
Ibraheem’s belief was based on training he received in criminal justice
classes he attended at Lockhaven University and in his completion of the
Delaware County Police Academy in 2005. Id. Ibraheem did not indicate that
he had any experience as a police officer. Id. Ibraheem shared that he had
twelve years’ experience as a volunteer firefighter but admitted that he had
not encountered any illegal drugs in his capacity as a firefighter. Id.
Ibraheem further stated that after he told his parents and defense
investigators about his discovery, defense investigators removed the
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paraphernalia from the home. Id. at 3. Ibraheem also shared that when he
last saw Sami, he was startled by her appearance as Sami “seemed to have
lost a significant amount of weight and appeared frail” as compared to when
he last saw Sami five to six months earlier. Id.
On November 22, 2019, the Commonwealth filed a motion in limine to
compel discovery of the drug paraphernalia recovered from Sami’s residence.
That same day, the trial court held a hearing on the parties’ pretrial motions,
which included, inter alia, the Commonwealth’s motion to compel discovery.
At that hearing, the prosecutor and lead detective admitted that, at the
time that they were made aware in March 2019 that drug paraphernalia was
discovered in Sami’s home, the prosecution did not understand the relevance
of that evidence as it related to the murder charges. Pretrial motion hearing,
11/22/19, at 16-18. The detective did not apply for a search warrant for
Sami’s residence as he did not believe there was probable cause to do so. Id.
at 16-18, 42-45. However, the prosecution had since learned that evidence
of Sami’s past drug usage factored into the opinion of the prosecution’s
psychiatric expert witness, Dr. John O’Brien, who was still in the midst of
preparing his expert report. Id. at 17-18.
Michael Dayoc, the chief investigator for the Montgomery County Public
Defender’s Office, testified that on July 9, 2019, Sami’s parents insisted that
defense investigators take various items of drug paraphernalia from Sami’s
bedroom in their home. Id. at 63-65. Dayoc indicated that Sami’s parents
were afraid that they would be prosecuted and “locked up for this little bit of
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[drug paraphernalia] in the residence.” Id. at 65. Defense investigators
recovered a marijuana grinder, a vape pen, a marijuana bud, plastic baggies,
a prescription pill bottle, rolling papers, a wooden box, and a receipt. Id. at
65-66. Dayoc admitted to throwing away some of the items, as he felt these
items had no bearing on the instant case. Id. at 67. Dayoc denied seeing a
foil ball or glass pipes and recalled that the baggies did not have anything in
them. Id. at 69-70. Dayoc testified that the only evidence he had remaining
in his possession were the vape pen, pill bottle, and wooden box. Id. at 73.
At the conclusion of the hearing, the trial court ordered the defense to
turn over to the prosecution the remaining pieces of evidence that had been
seized from Sami’s residence. The trial court also directed the prosecution to
seek expedited testing of these items.
On November 23, 2019, the Commonwealth’s expert, Dr. O’Brien,
submitted a report in which he offered the following opinion:
It is my opinion that the most appropriate diagnosis for Ms. Sami’s
array of symptoms at the time of the offense and preceding it is
Substance Intoxication/Substance Induced Psychotic Disorder. It
is my opinion that those symptoms were the result of voluntary
intoxication utilizing marijuana and very possibly other drugs.
Regardless of how one diagnoses Ms. Sami, it is clear to me that
at the time of the offense, she was able to appreciate the nature
and quality of her acts in connection with the physical altercations
that she had on March 7, 2019 with Lorraine Gigliello and Lila Frost
which resulted in their deaths. My evaluation of Ms. Sami
indicates that throughout the period of time that she was
symptomatic she maintained sensitivity to and awareness of
potential illegal or wrongful behaviors. It is my opinion that at the
time of the offense she was able to appreciate the wrongfulness
of her acts under generally accepted societal standards, even if
she felt justified in killing Ms. Gigliello and Ms. Frost in self-defense
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arising out of their behavior toward her and the paranoid
symptoms she was experiencing during that period of time. While
Ms. Sami’s ability to conform her conduct to the requirements of
the law may have been compromised at the time of the offense,
it is my opinion that it was compromised by her voluntary use of
drugs.
All the aforementioned opinions are rendered to a reasonable
degree of medical and psychiatric certainty.
T.C.O. at 5 (quoting O’Brien Report, at 25) (emphasis added).
On November 25, 2020, defense counsel filed a motion in limine,
seeking to exclude any reference to the drug evidence, contending there is no
evidence that Sami used drugs at or near the time of the instant crimes.
Defense counsel argued that any evidence that Sami had possession of
methamphetamine or cocaine was speculative and asserted that Ibraheem’s
claim that the baggies contained methamphetamine was improper expert
testimony from a laywitness.3 As such, defense counsel asked the portion of
Dr. O’Brien’s report referring to Sami’s use of drugs other than marijuana be
excluded as it is based on speculative evidence.
In addition, defense counsel asked the trial court to exclude any
reference to the marijuana as the cause of the incident and asked that a Frye
hearing be held to determine on whether it is scientifically accepted that
marijuana can cause extreme violence.
On December 13, 2019, the Commonwealth filed a “Motion to Introduce
Evidence of the Defendant’s Other Bad Acts,” arguing, inter alia, that the drug
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3 Defense counsel also included a request to withdraw if the drug evidence
was admitted, asserting that the disclosure would create a conflict of interest.
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paraphernalia found in Sami’s home and her family members’ statements
were admissible under the intent and res gestae exceptions to Pa.R.E. 404(b).
The Commonwealth intended to present evidence that Sami had drug
paraphernalia in her home that could have been used to ingest controlled
substances, which can contribute to feelings of paranoia and anxiety.
On January 3, 2020, the trial court entered an order denying in part and
granting in part the Commonwealth’s “Motion to Introduce Evidence of
Defendant’s Other Bad Acts,” providing in pertinent part that “the
Commonwealth is PROHIBITED from questioning, referencing, arguing or
eliciting testimony or presenting evidence regarding any drug possession or
use by defendant other than marijuana.” Order, 1/3/20, at 1.4 In addition,
the order stated that “[t]he Commonwealth’s expert, Dr. John O’Brien, is
PROHIBITED from referencing or testifying at trial about any other drugs or
drug paraphernalia besides marijuana.” Id.5 The Commonwealth filed a
timely appeal and complied with the trial court’s direction to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
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4 The order also included a footnote indicating that “[t]he Commonwealth
represented to the court that the testing of the items produced for inspection
and testing obtained from [Sami’s] residence revealed the presence of
marijuana and its active agent THC and no other drugs.” Order, 1/3/20, at 1.
5 Moreover, in this order, the trial court scheduled a hearing on the defense’s
“cross-motion” to determine whether a sufficient factual and causal foundation
exists regarding Sami’s history of marijuana use to support Dr. O’Brien’s
opinion that suffered a “Substance Intoxication/ Substance Induced Psychotic
Disorder” at the time of her offenses. The trial court indicated that it would
defer its ruling on this issue until the conclusion of the hearing. Id. at 1-2.
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The Commonwealth raises the following question for review on appeal:
Whether the trial court abused its discretion by excluding evidence
about any drug possession or use by [Sami] other than marijuana,
where that evidence was relevant and, because its probative value
outweighs any prejudice, admissible to show intent, knowledge,
and state of mind?
Commonwealth’s Brief, at 6.
In a criminal case, “the Commonwealth may take an appeal as of right
from an order that does not end the entire case where the Commonwealth
certifies in the notice of appeal that the order will terminate or substantially
handicap the prosecution.” Pa.R.A.P. 311(d). See Commonwealth v.
Moser, 999 A.2d 602, 604 (Pa.Super. 2010) (finding Commonwealth could
appeal the trial court’s denial of its motion in limine which resulted in the
exclusion of prosecution evidence and had the effect of substantially
handicapping the prosecution). As the trial court’s ruling in this case had the
effect of excluding prosecution evidence and the Commonwealth certified that
the ruling substantially handicaps the prosecution,6 this appeal is proper.
In reviewing the denial of the Commonwealth’s motion in limine, our
standard of review is as follows:
when reviewing the denial of a motion in limine, we apply an
evidentiary abuse of discretion standard of review. See
Commonwealth v. Zugay, 745 A.2d 639 (Pa.Super. 2000)
(explaining that because a motion in limine is a procedure for
obtaining a ruling on the admissibility of evidence prior to trial,
which is similar to ruling on a motion to suppress evidence, our
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6 While Sami asks this Court to question the grounds for the Commonwealth’s
good faith certification, we are not permitted to conduct such an inquiry.
Moser, 999 A.2d at 605, n.2.
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standard of review of a motion in limine is the same of that of a
motion to suppress). The admission of evidence is committed to
the sound discretion of the trial court and our review is for an
abuse of discretion.
Commonwealth v. Kane, 188 A.3d 1217, 1229 (Pa.Super. 2018) (quoting
Commonwealth v. Stokes,
78 A.3d 644, 654 (Pa.Super. 2013) (citations
and brackets omitted)).
Specifically, the Commonwealth argues that the trial court abused its
discretion in precluding the admission of the drug paraphernalia evidence
found in Sami’s home which the prosecution argues was admissible under Rule
404(b) to show Sami had “access to, knowledge of and used those drugs in a
way that impacted her state of mind during the double murders.”
Commonwealth’s Brief, at 22.
As a general rule, “the threshold inquiry with admission of evidence is
whether the evidence is relevant.” Commonwealth v. Cook, 597 Pa. 572,
602,
952 A.2d 594, 612 (2008) (citations omitted). Our rules of evidence
state that “[a]ll relevant evidence is admissible, except as otherwise provided
by law. Evidence that is not relevant is not admissible.” Pa.R.E. 402.
Pennsylvania Rule of Evidence 401 provides that “[e]vidence 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. Further, this Court has provided that “[e]vidence is
relevant if it logically tends to establish a material fact in the case, tends to
make a fact at issue more or less probable or supports a reasonable inference
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or presumption regarding a material fact.” Commonwealth v. Akhmedov,
216 A.3d 307, 316 (Pa.Super. 2019).
However, “[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.
Specifically, with respect to the admission of prior bad act evidence, we
are guided by the following principles:
In Commonwealth v. Sherwood, 603 Pa. 92,
982 A.2d 483
(2009), the Pennsylvania Supreme Court set forth the general
principles regarding the admissibility of prior bad acts at trial as
follows:
Generally, evidence of prior bad acts or unrelated criminal
activity is inadmissible to show that a defendant acted in
conformity with those past acts or to show criminal
propensity. Pa.R.E. 404(b)(1). However, evidence of prior
bad acts may be admissible when offered to prove some
other relevant fact, such as motive, opportunity, intent,
preparation, plan, knowledge, identity, and absence of
mistake or accident. Pa.R.E. 404(b)(2). In determining
whether evidence of other prior bad acts is admissible, the
trial court is obliged to balance the probative value of such
evidence against its prejudicial impact.
Id.at 497, citing Commonwealth v. Powell, 598 Pa. 224,
956
A.2d 406, 419 (2008). “The Commonwealth must prove beyond a
reasonable doubt that a defendant has committed the particular
crime of which he is accused, and it may not strip him of the
presumption of innocence by proving that he has committed other
criminal acts.” Commonwealth v. Ross, 57 A.3d 85, 98–99
(Pa.Super. 2012) (en banc) (citations omitted).
In Ross, an en banc panel of this Court acknowledged the
possibility that Rule 404(b)(2)'s exceptions could swallow the
general rule, and offered the following caution:
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The purpose of Rule 404(b)(1) is to prohibit the admission
of prior bad acts to prove “the character of a person in order
to show action in conformity therewith.” Pa.R.E. 404(b)(1).
While Rule 404(b)(1) gives way to recognized exceptions,
the exceptions cannot be stretched in ways that effectively
eradicate the rule. With a modicum of effort, in most cases
it is possible to note some similarities between the accused's
prior bad act conduct and that alleged in a current case. To
preserve the purpose of Rule 404(b)(1), more must
be required to establish an exception to the rule—
namely a close factual nexus sufficient to
demonstrate the connective relevance of the prior
bad acts to the crime in question.... [T]his Court has
warned the prior bad acts may not be admitted for the
purposes of inviting the jury to conclude that a defendant is
a person “of unsavory character” and thus inclined to have
committed the crimes with which he/she is charged. See,
e.g., Commonwealth v. Kjersgaard, 276 Pa.Super. 368,
419 A.2d 502, 505 (Pa.Super.1980).
Ross, 57 A.3d at 105–06.
Commonwealth v. Sitler, 144 A.3d 156, 163–64 (Pa.Super. 2016).
In resolving the Commonwealth’s pre-trial motion in limine, the trial
court did not discuss whether the drug evidence was relevant to the murder
charges. Instead, the trial court found that even if the drug evidence was
relevant, it should be excluded as it was overly prejudicial. The trial court
emphasized that there was no evidence that Sami ingested drugs on the date
of the crimes as there were no drugs found on Sami at the time of her arrest
or at the scene of the crimes. Moreover, the trial court explained:
In the instant matter, the Commonwealth asserts that the
drug evidence should be admitted under the res gestae exception.
The Commonwealth seeks to use this evidence to characterize Ms.
Sami as a drug user. Even if admissible, the prejudicial impact of
introducing evidence of drug possession outweighs its probative
value. … There is no nexus between drug possession and the
crimes charged. There is no timeline connecting any drug use to
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the crimes charged. The evidence of which and when specific
drugs were consumed is purely speculative and is not proper
404(b) evidence.
T.C.O. at 13.
In Commonwealth v. duPont, 730 A.2d 970, 980–81 (Pa.Super.
1999), this Court affirmed the trial court’s decision to allow the prosecution to
admit evidence of defendant’s prior substance abuse in rebuttal after the
defense had raised an insanity defense to the murder charge and had offered
expert testimony to show the appellant’s mental illness was not the result of
substance abuse. However, we note that the appellant in duPont offered
presented multiple “defense witnesses, both lay and expert, [who] made
detailed references in their testimony to [the] appellant’s use of cocaine and
alcohol.”
Id. The duPont Court noted that “the cause of appellant's mental
illness was clearly crucial to the defense, and consideration of his substance
abuse, particularly by his expert witnesses, was an indispensable facet of
establishing the history of that mental illness.”
Id. at 981.
Based on this precedent, we acknowledge that evidence of a defendant’s
prior drug use is relevant to rebut an insanity defense to murder charges by
showing that the defendant’s mental illness was a drug-induced psychosis.
Defense expert Dr. DeMatteo acknowledged in his expert report that it was
necessary to consider Sami’s use of controlled substances in establishing the
history of her mental illness. DeMatteo Report, at 14-15.
Nevertheless, in this case, the Commonwealth has not shown that the
disputed evidence of Sami’s alleged use of methamphetamine and cocaine is
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relevant, such that “it logically tends to establish a material fact in the case,
tends to make a fact at issue more or less probable or supports a reasonable
inference or presumption regarding a material fact.” Pa.R.E. 401. Moreover,
the prosecution failed to establish “a close factual nexus sufficient to
demonstrate the connective relevance” between her possible possession of
cocaine and methamphetamine to the crimes in question. Sitler, supra;Ross, supra.
The prosecution has not presented any evidence to show that Sami
ingested these drugs on or around the date of the crimes. Upon her arrest,
no drug evidence or paraphernalia was found on Sami’s person or her vehicle.
Shortly after her arrest, Sami gave a statement to police in which she
indicated that she was not under the influence of a controlled substance.
Pretrial motion hearing, 11/22/19, at 16-17, 42-45. Moreover, the lead
detective testified that officers did not suspect Sami was intoxicated and would
not have taken Sami’s statement if they felt she was under the influence of a
controlled substance. Id. at 43-44. As there was no suspicion that Sami was
intoxicated at the time of her arrest, the police did not request toxicology
testing upon Sami’s entry into prison.
While defense investigators recovered drug paraphernalia (the vape
pen, marijuana bud, and marijuana grinder) from Sami’s residence, these
items were consistent with marijuana use. Sami has denied having any
substance abuse issues, but admitted to using marijuana occasionally. Sami’s
brother, Ibraheem, confirmed that Sami was a marijuana user.
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Moreover, the only evidence that other drugs (cocaine and
methamphetamine) existed in Sami’s home consists of the statements of her
family members concerning items they observed in Sami’s bedroom, namely
a white powder, a tablet, and baggies containing a brown crystalline residue.
As these items were never turned over to law enforcement, testing was never
performed to identify the substances.
While Ibraheem later told officers that he observed in Sami’s bedroom
a plastic baggie containing brown crystalline residue that “might have been”
methamphetamine, we agree with the trial court that speculation itself without
corroborating evidence does not establish “a close factual nexus sufficient to
demonstrate the connective relevance” between Sami’s possible possession of
cocaine and methamphetamine to the crime in question.7
We find that the probative value of this evidence is outweighed by the
potential for prejudice to the defense. Allowing the prosecution to admit
speculative evidence of Sami’s possible use of cocaine and methamphetamine
that lacked a factual nexus to the murder charges would have the potential to
confuse the jury or to result in unfair prejudice, in “suggesting a decision on
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7 The trial court never specifically ruled on the defense’s motion challenging
Ibraheem’s qualifications and experience to identify the substance he claims
he observed as methamphetamine. Even assuming arguendo that the trial
court had found this testimony was admissible, we are not persuaded that
Ibraheem’s statements established connective relevance between the alleged
methamphetamine and Sami’s commission of the instant crimes to render
Ibraheem’s statement to be proper 404(b) evidence.
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an improper basis or to divert the jury’s attention away from its duty of
weighing the evidence impartially.” Pa.R.E. 403 cmt.
Accordingly, we conclude that the trial court properly exercised its
discretion in denying the Commonwealth’s motion in limine seeking to admit
evidence suggesting Sami possessed and used drugs other than marijuana
(cocaine and methamphetamine).
Given this conclusion, we agree with the trial court’s decision to prohibit
prosecution expert Dr. O’Brien from testifying about Sami’s possession or use
of drugs other than marijuana. Our Supreme Court has held:
An expert cannot base his opinion upon facts which are not
warranted by the record. No matter how skilled or experienced
the witness may be, he will not be permitted to guess or to state
a judgment based on mere conjecture.... To endow opinion
evidence with probative value it must be based on facts proven or
assumed, sufficient to enable the expert to form an intelligent
opinion. The opinion must be an intelligent and reasonable
conclusion, based on a given state of facts, and be such as reason
and experience have shown to be a probable resulting
consequence of the facts proved. The basis of the conclusion
cannot be deduced or inferred from the conclusion itself. In other
words, the opinion of the expert does not constitute proof of the
existence of the facts necessary to support the opinion.
City of Philadelphia v. W.C.A.B. (Kriebel), 612 Pa. 6, 18–19,
29 A.3d 762,
770 (2011) (quoting Collins v. Hand,
431 Pa. 378, 390–91,
246 A.2d 398,
404 (1968) (internal citations omitted)).
For the foregoing reasons, we affirm the trial court’s order denying the
Commonwealth’s motion in limine.
Order affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2020
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