Com. v. Rivera, J.

J-A06017-26

                                   2026 PA Super 71

  COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
  JOSHUA A. RIVERA                             :   No. 547 WDA 2025

               Appeal from the Order Entered April 25, 2025
     In the Court of Common Pleas of Butler County Criminal Division at
                      No(s): CP-10-CR-0001622-2023


BEFORE: OLSON, J., MURRAY, J., and BECK, J.

OPINION BY MURRAY, J.:                         FILED: April 10, 2026

       In this vehicular homicide case, the Commonwealth of Pennsylvania

appeals from the trial court’s interlocutory order that decided evidentiary

issues raised in Joshua A. Rivera’s (Rivera) pretrial motions in limine, and

precluded the Commonwealth from introducing certain items into evidence.1

For the reasons that follow, we affirm in part and reverse in part, and remand

for further proceedings.

       The trial court summarized the evidence presented at Rivera’s

preliminary hearing as follows:

       The preliminary hearing occurred on December 14, 2023, and the
       Commonwealth presented three witnesses, the autopsy report,
____________________________________________


1 The Commonwealth complied with Pa.R.A.P. 311(d), as it “certifie[d] in the

notice of appeal that the order will terminate or substantially handicap the
prosecution.” Id.; see also Commonwealth v. Matis, 710 A.2d 12, 17 (Pa.
1998) (“[T]he Commonwealth may appeal a pre-trial order granting a motion
in limine to exclude evidence that has the effect of terminating or substantially
handicapping the prosecution.”).
J-A06017-26


       and [Rivera’s] certified driving record.2 … Officer William Dobson
       [(Officer Dobson)] testified that he has been a police officer with
       the Butler Township Police Department for about 8 years[,] and
       that he was dispatched to the scene of an accident on October 19,
       2023, at 3:37 p.m. [N.T. (preliminary hearing), 12/14/23,] at 48.
       Upon arrival at 3:44 p.m., he saw the [seriously injured, fifteen-
       year-old victim, A.L. (the victim),] lying in the middle of
       Dutchtown Road near the intersection with Sugar Creek Drive. Id.
       at 50. Dutchtown Road is a two[-]lane road … with no lines on
       the pavement. [Id. at 49.] The speed limit is 35 [miles per hour
       (mph or m.p.h.)]. Id. … [Officer Dobson] did not see any skid
       marks on the road …. Id. at 68. [Officer Dobson] observed pieces
       of a bumper from a [white] KIA sedan on the roadway that [law
       enforcement] tracked back to [Rivera,] who owned the car. Id.
       at 52-53.       [Law enforcement eventually located Rivera’s
       abandoned vehicle, which had significant] front bumper damage,
       … a few miles from the scene later that day.3 [Id. at 53; see also
       id. at 54 (Officer Dobson testifying Rivera was the registered
       owner of the vehicle). Rivera] was apprehended 3 days later but
       did not give [] a statement. [Id. at 56-57.]

                                          ***

            The Commonwealth also called Brett Decker [(Mr. Decker),]
       an eyewitness to the accident, at the preliminary hearing. Mr.
____________________________________________


2 It is undisputed that at the time of the incident, Rivera’s driver’s license was

suspended due to a pending charge of driving under the influence (DUI) of
controlled substances. See Rule 1925 Opinion, 7/25/25, at 1 (unpaginated);
Appellee’s Brief at 4 (Rivera conceding his driver’s license was suspended);
N.T. (preliminary hearing), 12/14/23, at 57-59, Commonwealth Ex. 1. The
trial court precluded the Commonwealth from introducing any evidence or
reference regarding this pending charge. See Motion in Limine Order,
4/25/25, at 1 (unpaginated) (granting, “with the consent of the
Commonwealth,” Rivera’s motion in limine to exclude “the fact that [Rivera]
had a DUI charge pending when this event occurred and/or that he was out
on bond at the time or under supervision.”); see also N.T. (motion in limine
hearing), 3/24/25, at 122, 124-25.

3 The trial court stated that “a police officer saw [Rivera’s] parked car within

minutes of this incident and saw him get out of the car, lock it and flee into
the woods. The car was impounded ….” Rule 1925 Opinion, 7/25/25, at 4
(unpaginated).

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     Decker testified that he was walking with his wife and youngest
     son, who was in a stroller, and standing on Dutchtown Road …
     when he saw the accident. [Id.] at 7-8. He testified that it was
     “a beautiful day for a walk, [and] the sun was shining …” when he
     saw the victim riding his electric bike, traveling on the right side
     of Dutchtown Road, coming towards [Mr. Decker] …. [Id. at 8, 9.]
     Then, a “car came out of nowhere” and struck the victim from
     behind …. Id. at 9-10. Mr. Decker[, describing the speed of the
     vehicle, stated it] “felt like it was a missile coming.” [Id. at 10.]

           … [Mr. Decker testified that] “it was traveling fast … I would
     say 80 [mph] or so.” Id.[; see also id. at 37, 38 (Mr. Decker
     stating, on cross-examination, that although he is not “an expert”
     in providing speed estimations, he “spend[s] a lot of time[]
     driving.”).] … [Mr. Decker was approximately 10 to 15 feet away
     from the victim when the vehicle struck him, whereupon the
     victim] was thrown in the air, bounced off the car and was flung
     forward, while the car traveled underneath the victim as he flew
     in the air. Id. [at 10-11. Mr. Decker stated that the victim]
     landed on the roadway and the car came to a complete stop about
     10 to 15 feet past where [the victim’s] body came to rest. Id. [at
     11; see also id. at 32 (Mr. Decker estimating the victim was
     propelled “probably 75, 80 feet” from the point of impact).]

                                    ***

           [Mr. Decker testified that the] driver came out of the car
     and was acting erratic. [Rivera] said, “Oh, my God. Oh, my God.
     I’m so sorry. I’m so sorry.” Id. at 14[; see also id. at 39 (Mr.
     Decker stating he did not see any other occupants in the car). Mr.
     Decker testified that Rivera] also … yelled for us to call 911. [Id.
     at 14.] … Mr. Decker asked his wife to call 911. [Id. at 15.]

                                    ***

            [While Mr. Decker was rendering aid to the victim, who had
     a visible head injury, Mr. Decker] “heard the car tires squealing
     again and the car was taking off at a high rate of speed.” Id. at
     [15,] 17. The driver did not identify himself at the scene. [Id. at
     17. In open court during the preliminary hearing,] Mr. Decker
     identified [Rivera] as the driver of the vehicle that day…. Id. at
     18.




                                     -3-
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             Mr. Decker further explained that the victim was to his left
       as he was walking, and the victim was riding in the same direction
       as [Rivera’s vehicle. Id. at 21. Immediately before the impact,
       Mr. Decker noticed that the victim “]was approaching the middle
       [of Dutchtown Road] because … as you approach your turn, you
       start drifting that way.” Id. [] “But [the victim] had not passed
       the center of the road. He was still on that side of the road.” Id.
       The victim was riding his electric bike down the hill, which was not
       steep. Id. at 23. …

             [Mr. Decker further explained that the] top of the hill on
       Dutchtown Road is about … 600-1[,]000 feet or so from [the point
       of] impact. Id. at 25. Mr. Decker added that[, immediately prior
       to the impact,] he noticed the car make a lateral move, as though
       [attempting] to go around the bike…. Id. at 26. … [Mr. Decker
       stated that the car] “appeared to be accelerating to get around
       [the victim].” Id.[; see also id. at 12 (Mr. Decker testifying that
       he did not believe the driver applied the car’s brakes prior to
       impact).] … Dutchtown Road is a straight road from the top of
       the hill to the point of impact. Id. at 39.

Memorandum Opinion and Order, 8/29/24, at 7-10 (unpaginated) (footnotes

added).    Additionally, the trial court stated that “[Rivera] had previously

travelled on Dutchtown Road[.]”           Id. at 11 (unpaginated); see also N.T.

(preliminary hearing), 12/14/23, at 36 (Mr. Decker testifying at the

preliminary hearing that “[o]ne of [his] neighbors reported that she had

witnessed a white sedan in that area pass her at high rates of speed and it

looked like it was racing another car.”).4

       The Commonwealth charged Rivera, via criminal complaint filed on

October 20, 2023, with one count each of involuntary manslaughter, 18



____________________________________________


4 Rivera’s counsel did not raise a hearsay objection to Mr. Decker’s testimony

regarding his neighbor’s statement.

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Pa.C.S.A. § 2504(a); accidents involving death or personal injury, 75

Pa.C.S.A. § 3742(a); aggravated assault by vehicle, id. § 3732.1(a);

accidents involving death or injury while not licensed, id. § 3742.1(a)(1);

homicide by vehicle, id. § 3732(a); accident involving damage to attended

vehicle, id. § 3743(a); reckless driving, id. § 3736(a); failure to notify police

of accident/injury or death, id. § 3746(a)(1); driving while license is

suspended – DUI-related, id. § 1543(b)(1)(i); and driving at safe speed, id.

§ 3361.5

       Law enforcement submitted an application for a search warrant

regarding Rivera’s impounded vehicle, seeking to obtain “[i]tems such as

alcohol, illicit, prescribed or over[-]the[-]counter drugs[.]”      Affidavit of

Probable Cause, 12/15/23, at 3.6 The affidavit of probable cause stated that

“[o]fficers on scene noted a freshly burned marijuana joint laying in the grass




____________________________________________


5 Notably, at no time did the Commonwealth charge Rivera with DUI.


6 The warrant application, dated October 20, 2023, was not filed until
December 15, 2023.

                                           -5-
J-A06017-26


in close proximity to this crash[.]”7          Id. at 2.   A magisterial district judge

(MDJ) granted the search warrant application.8

       Law enforcement executed the search warrant for Rivera’s impounded

vehicle on November 11, 2023, i.e., approximately three weeks after the

incident. Police inventoried the items seized and documented the locations in

which the items were found. The inventory, filed of record, stated that police

discovered a suspected “baggie of marijuana” behind the driver’s seat.

Application for Search Warrant, 12/15/23, at 6 (unpaginated) (inventory).

Police also found rolling papers and unidentified pills inside both the glove box




____________________________________________


7 Law enforcement collected the partially-burnt marijuana joint and preserved

it for evidence. See N.T., 3/24/25, Commonwealth Exhibits 2-5 (pictures of
the evidence, which we hereinafter refer to as “the joint” or “marijuana
cigarette”). At the hearing on Rivera’s motion in limine, the prosecutor
explained that police found the joint “after the fact [of the incident], lying right
where [Rivera’s] vehicle was stopped. Where Mr. Decker said that [] Rivera
got out of his car.” Id. at 58.

Additionally, the Commonwealth conceded “there is no lab report showing that
the joint actually is marijuana[.]” Id. at 74. Rather, the Commonwealth
explained that it is “relying on Commonwealth v. Duncan[, 314 A.3d 556
(Pa. Super. 2024),]” to establish that the joint contained marijuana. N.T.,
3/24/25, at 58; Duncan, 314 A.3d at 567 (“In the context of drug possession
cases, it is well settled that the existence of narcotic drugs does not have to
be proved by chemical analysis and may be proved either by direct or
circumstantial evidence[,]” which may include “testimony of an odor informing
[law enforcement’s] conclusion as to the presence of [drug use.]” (citation
and internal quotation marks omitted)).

8 At no time did Rivera challenge the validity of the search warrant or file a

motion to suppress evidence.

                                           -6-
J-A06017-26


and center console, as well as an unopened alcoholic beverage located in the

vehicle’s trunk. Id.

       Rivera’s preliminary hearing occurred on December 14, 2023.           Mr.

Decker and Officer Dobson testified as described above. Following the close

of evidence, the MDJ considered argument from the parties regarding whether

the Commonwealth had proven a prima facie case. See N.T., 12/14/23, at

68-75. The MDJ bound all charges over for court. Id. at 75.

       On March 6, 2024, Rivera filed an informal request for discovery

pursuant to Pa.R.Crim.P. 573.          The Commonwealth subsequently disclosed

documents to the defense, which included police statements given by two

individuals who resided on Dutchtown Road at the time of the incident: Mr.

Lennon and Michael Pritschman (Mr. Pritschman).9             As the trial court

explained,

       [t]he Commonwealth is [] expected to call [] Mr. Lennon as a lay
       witness at trial to testify to his observations minutes after the
       crash. [Mr. Lennon] did not see the crash. While in his front
       yard[,] which was a few miles from the crash site, [Mr. Lennon]
       observed a white car dragging parts of its front end underneath,
       while the vehicle traveled at a “high rate of speed” and ran a stop
       sign at the intersection of Dutchtown Road and Mushrush Road.

Motion in Limine Order, 4/25/25, at 10 (unpaginated) (emphasis omitted);

see also N.T., 3/24/25, at 93 (the prosecutor stating at the motion in limine


____________________________________________


9 Mr. Lennon’s first name is not revealed in the record. Moreover, the record
does not contain the police statements of Mr. Lennon and Mr. Pritschman,
neither of whom testified at the preliminary hearing. However, it is undisputed
that their respective statements were passed in discovery.

                                           -7-
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hearing that Mr. Lennon “did not put a speed” estimation of the vehicle’s rate

of travel).

       Regarding Mr. Pritschman, the trial court explained that he

       is expected to testify that he was in his backyard, which is along
       Dutchtown [R]oad at the top of the hill, and that he saw a car for
       about 2-3 seconds out of the corner of his eye, before the crash,
       but could not determine its color, and that he heard the vehicle
       passing more than he saw anything. [See N.T., 3/24/25, at 98.
       Mr. Pritschman] estimated 70 mph or more as the speed of the
       vehicle at the top of the hill. See id. at 98-99. [Mr. Pritschman]
       did not get a clear view of the vehicle. He heard more than saw
       the vehicle.

Motion in Limine Order, 4/25/25, at 9-10 (unpaginated) (internal quotation

marks omitted; citation modified); see also N.T., 3/24/25, at 92 (the

prosecutor explaining that Mr. Pritschman “saw the vehicle just mere seconds

before [the victim] was struck”).

       Pertinent to this appeal, on February 23, 2024, the Commonwealth filed

a motion (Motion to Amend) seeking to amend the information to add one

count of third-degree murder,10 a first-degree felony with a maximum

potential sentence of 20 to 40 years’ imprisonment.        Motion to Amend,

2/23/24, at 1 (unpaginated); see also Pa.R.Crim.P. 564 (providing that a

“court may allow an information to be amended, provided that the information

as amended does not charge offenses arising from a different set of events




____________________________________________


10 18 Pa.C.S.A. § 2502(c).


                                           -8-
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and that the amended charges are not so materially different from the original

charge that the defendant would be unfairly prejudiced.”).11

       On March 13, 2024, the Commonwealth filed another application for a

search warrant, seeking to obtain data and postings associated with Rivera’s

Facebook online social media account. An MDJ granted the search warrant.

The Commonwealth thereafter obtained a video Rivera had posted to his

Facebook account, which we discuss infra.

       On July 30, 2024, the trial court conducted a hearing on the

Commonwealth’s Motion to Amend.                At the hearing, the transcript from

Rivera’s preliminary hearing was admitted into evidence. See N.T. (motion

to amend hearing), 7/30/24, at 42-43, Plaintiff’s Ex. 1. The Commonwealth

elected to rely solely upon the evidence presented at the preliminary hearing,

and presented no additional evidence. Id. at 9.

       On August 16, 2024, Rivera, through his Public Defender counsel, filed

a Motion to Quash Commonwealth’s Motion to Amend/Motion for Writ of

Habeas Corpus (Habeas Motion).            Rivera asserted the Commonwealth had

failed to present a prima facie case “to show malice as an element” to support




____________________________________________


11 In the Motion to Amend, the Commonwealth also gave Rivera notice of its

intent to seek application of the sentencing enhancements pursuant to 75
Pa.C.S.A. §§ 3732(b) and 3732.1(b) (governing sentencing enhancements for
persons who have a prior conviction of driving while operating privilege is
suspended or revoked, and who are also convicted of homicide by vehicle or
aggravated assault by vehicle, respectively).

                                           -9-
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amending the information to add the charge of third-degree murder.12 Habeas

Motion, 8/16/24, ¶ 33.

       On August 29, 2024, the trial court issued a thorough memorandum

opinion and order in which it (1) granted the Commonwealth’s Motion to

Amend;13 and (2) denied Rivera’s Habeas Motion.

       In granting the Motion to Amend, the trial court determined that (1)

“[t]he proposed amendment is based … on the evidence and factual scenario

presented at the preliminary hearing”; (2) “the description of the [original]

charges will be unchanged by the amendment”; and (3) “there is no showing


____________________________________________


12 “Third-degree murder is a homicide that the Commonwealth must prove
was committed with malice, but … it need not prove or address the presence
or absence of an intent to kill.” Commonwealth v. Wellman, 344 A.3d 13,
23 (Pa. Super. 2025). Our Supreme Court has stated that “malice is present
under circumstances where a defendant did not have an intent to kill, but
nevertheless displayed a conscious disregard for an unjustified and extremely
high risk that his actions might cause death or serious bodily harm.”
Commonwealth v. Packer, 168 A.3d 161, 168 (Pa. 2017); see also id. at
170 (stating that “[i]n the DUI context, this Court has held that the decision
to drive while under the influence of alcohol and/or a controlled substance
does not, standing alone, constitute malice.” (emphasis added; citation
omitted)). The defendant’s conduct must be such that “one could reasonably
anticipate death or serious bodily injury would likely and logically result.”
Commonwealth v. Kling, 731 A.2d 145, 148 (Pa. Super. 1999) (citation
omitted); see also Commonwealth v. Akhmedov, 216 A.3d 307, 316 (Pa.
Super. 2019) (en banc) (“Malice is more than ordinary recklessness”). “In
view of this heightened mens rea, motor vehicle crashes seldom give rise to
proof of the malice needed to sustain a conviction for third[-]degree murder
….” Kling, 731 A.2d at 148. Pertinently, “[m]alice may be inferred by
considering the totality of the circumstances.” Commonwealth v. Dunphy,
20 A.3d 1215, 1219 (Pa. Super. 2011).

13 On September 4, 2024, the Commonwealth filed an amended information

charging Rivera with third-degree murder.

                                          - 10 -
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of prejudice [to Rivera], other than adding another charge with a more severe

penalty[.]” Memorandum Opinion and Order, 8/29/24, at 2 (unpaginated);

see also Pa.R.Crim.P. 564, supra.

       In denying Rivera’s Habeas Motion, the trial court found that “the

Commonwealth has made out a prima facie case for malice to support the

amended count of murder in the third degree.” Memorandum Opinion and

Order, 8/29/24, at 11 (unpaginated). But see also id. (stating that “[w]hile

the evidence presented by the Commonwealth at the preliminary hearing on

malice is not overwhelming, that is not the test the court must apply.”).

       On February 21, 2025, Rivera filed lengthy motions in limine.         In

relevant part, Rivera sought preclusion of the following evidence:

       1) “[V]ideo and images that have been purported to come from
          [Rivera’s] Facebook page” (Facebook video), which depicted
          “an unknown person, in an unknown vehicle, going over 100
          m.p.h., on an unknown roadway[.]”14     Motion in Limine,
          2/21/25, ¶¶ 40, 42;


____________________________________________


14 The trial court described the Facebook video as follows:



       The Commonwealth propos[ed] to introduce [a] 30 second video
       …, purported[ly taken from Rivera’s] Facebook page, made prior
       to this incident, [of Rivera] allegedly filming himself driving a
       different car than the one involved in this incident, [depicting] a
       speedometer showing [that the vehicle was] driving at 130 mph,
       [and the driver can be heard] saying: “This is how you [] drive[,]
       Banner! Like that, bitch!” [N.T., 3/24/25, Commonwealth Ex. 1
       (Facebook video).]

Motion in Limine Order, 4/25/25, at 5-6 (unpaginated) (some punctuation
modified). The driver is not depicted at any point in the Facebook video, which
is undated. See N.T., 3/24/25, Exhibit 1.

                                          - 11 -
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     2) Lay opinion testimony from Mr. Decker, Mr. Pritschman, and
        Mr. Lennon regarding the speed of Rivera’s vehicle at the time
        of the incident. Id. ¶¶ 72-109; and

     3) Any evidence that may suggest Rivera was under the influence
        of controlled substances at the relevant time. Id. ¶¶ 21-38.

     Expounding upon the third item listed above, Rivera asserted that

     [t]he Commonwealth has possible evidence, following an interior
     search of [Rivera’s] vehicle conducted by Officer Dobson [on
     November 11, 2023,] which includes prescription medications,
     rolling papers, pills, a suspected baggie of marijuana, and an
     unopened [alcoholic beverage] located in the trunk of the vehicle.
     The Commonwealth [also] has [police] body camera video
     evidence … that tend[s] to show that [Rivera] was addicted to
     narcotics previously or relapsed following this accident.

                                   ***

     [Rivera] specifically requests that the [c]ourt prohibit the
     Commonwealth from utilizing or making any reference or referral
     to any drug usage, possession, … “suspected marijuana
     cigarette,” or any other statement regarding relapse or addiction
     by [Rivera].

Id. ¶¶ 29-30, 38 (formatting and some punctuation modified).

     The Commonwealth filed a response to the motions in limine on March

20, 2025.   Regarding the drug evidence police found at the scene and in

Rivera’s vehicle, the Commonwealth asserted as follows:

     The Commonwealth intends to present law enforcement testimony
     from [Officer Dobson], who is extremely familiar with [marijuana
     and its odor], that the [joint found at the scene did], in fact,
     [contain] marijuana, and that it was a very large marijuana
     cigarette.

             The Commonwealth further intends to introduce at least one
     photo of the marijuana cigarette, and maybe even the cigarette
     itself, as [one of the police officers who responded to the scene of
     the accident], at roughly the 13 minute mark of his bodycam

                                    - 12 -
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       video, stated it smelled strongly of marijuana at the time of the
       crash …. Officer Dobson confirmed the marijuana smell once he
       was directed to where the marijuana cigarette was located at the
       crash scene. Additionally, the eyewitnesses to the crash, [i.e., Mr.
       Decker and his wife], stated that they smelled an odor of
       marijuana emanating from [Rivera] after the crash.

Commonwealth’s Response to Defense Motion in Limine, 3/20/25, at 2 (some

capitalization and punctuation modified).

       On March 24, 2025, the trial court conducted an in camera hearing on

the motions in limine (motion in limine hearing).          The Commonwealth

announced its intention to introduce into evidence at trial (1) the above-

described police body camera video (the body cam video), in which individuals

can be heard stating that they smelled the odor of marijuana at the scene;15

(2) the drug paraphernalia and baggie containing suspected marijuana seized

from Rivera’s vehicle; and (3) the joint found at the scene. See N.T., 3/24/25,

at 52-53, 57, 66-68, Commonwealth Ex. 1.             Regarding the joint, the

prosecutor stated that law enforcement had performed a forensic test of DNA

contained on the joint, uploaded the test results into the Combined DNA Index

System (CODIS),16 and received a “CODIS hit that [] Rivera is the only DNA

____________________________________________


15 At the motion in limine hearing, the Commonwealth played the body cam

video for the trial court. See N.T., 3/24/25, at 66-68, Commonwealth Exhibit
1.

16 As our Supreme Court has explained, CODIS is the acronym used to
describe the FBI’s tool that “blends forensic science and computer technology
to enable federal, state, and local forensic laboratories to exchange and
compare DNA profiles electronically, thereby linking serial violent crimes to
(Footnote Continued Next Page)


                                          - 13 -
J-A06017-26


hit that popped up … when [law enforcement] ran it through [the CODIS]

repository of known individuals.” Id. at 56.

       Although the Commonwealth conceded it did not charge Rivera with DUI

or any drug offenses, see id. at 52-53, it asserted the drug evidence was

nonetheless relevant

       [w]hen it comes to [the charge of third-degree] murder….
       [Rivera] was driving -- along with the totality of the
       circumstances, it’s just one factor. I don’t believe [that] just
       because [the Commonwealth] didn’t [charge Rivera with] DUI[,]
       we can’t introduce [evidence] that he [was] smoking a marijuana
       joint while driving at a high rate of speed.

Id. at 55; see also id. (the prosecutor asserting, “I believe this is an

important element to show that [Rivera was] manifesting an indifference to

society and what his actions were that day”).          The prosecutor further

announced the Commonwealth’s intention to call witnesses at trial who “are

going to testify that [Rivera] smelled like marijuana,” and that the joint found

at the scene “was completely reeking of marijuana just being within the

vicinity of it[.]” Id. at 54.

       Rivera countered that admission of the drug evidence was improper,

asserting as follows:

       Our objection is that … if [the Commonwealth is] not going to
       present [evidence of Rivera’s] impairment, … then presentation of
       [the drug] evidence, … there is a mere appearance. [The
       Commonwealth is] going to … say [that the joint] came from
       [Rivera] and they are going to show a bag of marijuana [found
____________________________________________


each other and to known offenders.” Commonwealth v. Walker, 350 A.3d
54, 56 n.1 (Pa. 2026) (citation and brackets omitted).

                                          - 14 -
J-A06017-26


      inside Rivera’s vehicle], when impairment is not [at issue] in this
      case and when … there is no evidence [that Rivera] was smoking
      [marijuana]. Maybe it’s mere possession. But presented how [the
      Commonwealth] want[s] to present [the drug evidence, it] gives
      kind of the wink and the nod that this may have been a DUI as
      well, even though [DUI was] not charged ….

Id. at 63-64 (some punctuation modified).

      At the motion in limine hearing, the trial court then considered argument

from the parties regarding the admissibility of the proposed lay opinion

testimony from Mr. Lennon, Mr. Pritschman, Mr. Decker, and Mr. Decker’s

wife, Rachel Decker (Mrs. Decker). See id. at 87-99. Regarding Mrs. Decker,

who did not testify at the preliminary hearing, the prosecutor maintained that

she “is going to testify that she watched [] Rivera hop in his car [after the

impact], burn rubber and leave like a bat out of hell at a high rate of speed.”

Id. at 93. However, the prosecutor explained that Mrs. Decker “is not putting

an actual miles per hour number on the vehicle.” Id. at 96.

      Finally, the Commonwealth played the Facebook video for the trial court.

Id. at 85, Commonwealth Ex. 1. The prosecutor maintained that “[Rivera] is

speaking in [the Facebook] video and we have law enforcement who can

testify that they are familiar with his voice ….” Id. at 78; see also id. at 79-

80 (the prosecutor asserting there was other evidence, discussed infra, that

tied Rivera to the Facebook video). However, the prosecutor conceded that

law enforcement did not know when the Facebook video was created:

      [The Facebook video] was deleted, [after law enforcement] pulled
      it off of the internet. I don’t believe we have a specific date. …
      We turned it over in discovery and then when I checked [Rivera’s

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J-A06017-26


       Facebook profile] last, [the Facebook video had] been blocked and
       delete[d].

Id. at 83.

       Rivera countered that the Facebook video must be excluded, as the

Commonwealth failed to authenticate it. Id. at 76. Rivera further argued that

any probative value the Facebook video may have is heavily outweighed by

its potential for unfair prejudice:

       I just don’t think that [the Facebook] video can be authenticated
       and [it] is extremely prejudicial when the issue of speed is …
       pretty much at issue for the jury. Just because [Rivera] posted a
       video on Facebook doesn’t mean that’s what he did [on the] day
       [of the incident].

Id.; see also id. at 86 (Rivera asserting the Facebook video “is highly

prejudicial on a couple of fronts and nobody can say that is [] Rivera

driving.”).17

       By a comprehensive order entered on April 25, 2025 (Motion in Limine

Order), the trial court decided Rivera’s motions in limine. The court excluded

the Facebook video, reasoning as follows:

       Assuming that the Commonwealth can authenticate the
       [Facebook] video under Pa.R.E. [] 901,18 and prove that [Rivera]
____________________________________________


17 Rivera’s counsel also pointed out that Rivera has been continuously
incarcerated since three days after the incident and asserted Rivera “didn’t
have access to Facebook, [and] didn’t delete anything[.]” N.T., 3/24/25, at
85.

18 Rule 901 mandates that, “[u]nless stipulated, to satisfy the requirement of

authenticating or identifying an item of evidence, the proponent must produce
evidence sufficient to support a finding that the item is what the proponent
(Footnote Continued Next Page)


                                          - 16 -
J-A06017-26


       is the driver in the video, the video itself is highly prejudicial and
       has low probative value, in part, because the time of its recording
       cannot be established to create an evidentiary time link between
       the behavior on the [Facebook] video and [Rivera’s] alleged
       driving at the time of this incident.

       Given the identification issues [regarding the Facebook video],
       and the low probative value [of this evidence] in comparison to
       the prejudicial [effect, Rivera’s] motion [in limine to exclude the
       Facebook video is granted].

Motion in Limine Order, 4/25/25, at 5-6 (unpaginated) (footnote added).

       The trial court denied Rivera’s motion in limine to exclude the joint. Id.

at 4 (unpaginated) (declining to exclude the joint “and the odor at the crime

scene of [marijuana,] whether emanating from [Rivera] and/or the alleged

marijuana cigarette, and/or its identification as marijuana so long as a proper

foundation for that knowledge has been established thereto.” (citing Duncan,

314 A.3d at 566-67)).19 However, the trial court excluded the evidence law

enforcement seized during the search of Rivera’s vehicle.             Id. at 4-5

(unpaginated).

       In the Motion in Limine Order, the trial court further stated that


____________________________________________


claims it is.” Pa.R.E. 901(a); see also Commonwealth v. Serge, 896 A.2d
1170, 1177 (Pa. 2006) (“Demonstrative evidence such as photographs,
motion pictures, diagrams, and models have long been permitted to be
entered into evidence provided that the demonstrative evidence fairly and
accurately represents that which it purports to depict.” (citation omitted));
Pa.R.E. 901(b)(11) (governing authentication of digital evidence).

19 The trial court granted Rivera’s motion in limine to exclude any evidence

related to forensic DNA analysis of the marijuana cigarette. See Motion in
Limine Order, 4/25/25, at 4 (unpaginated). The Commonwealth does not
challenge this ruling on appeal.

                                          - 17 -
J-A06017-26


       the defense motion in limine to exclude the audio recording
       portion from police body cam[ video] regarding the alleged
       marijuana cigarette [found] at the scene, and/or comments made
       regarding whether [Rivera] was impaired from it, are granted.
       Therefore, the Commonwealth is prohibited from playing the audio
       portion of [the body cam video] in direct examination in its case-
       in-chief.20

Id.   at    5   (unpaginated)     (footnote    added;   emphasis   omitted;     some

capitalization modified). Finally, as we elaborate infra, the trial court imposed

limitations upon the proposed lay testimonies of Mr. Decker, Mrs. Decker, Mr.

Lennon, and Mr. Pritschman. See id. at 6-10 (unpaginated).

       On May 1, 2025, the Commonwealth timely filed a notice of appeal that

included its Pa.R.A.P. 311(d) certification. The Commonwealth and the trial

court have complied with Pa.R.A.P. 1925.

       The Commonwealth presents five issues for our review:

       I.   Whether the trial court issued conflicting rulings in [its] April
            25, 2025, [Motion in Limine Order] versus [its] August 29,
            2024, memorandum, resulting in [an] abuse of discretion,
            and subsequently misappl[ied] the law in the April 25, 2025,
            [Order] by initially citing case law provide[d] by… the
            Commonwealth on August 14, 2024, in favor of the
            Commonwealth’s [Motion to Amend] to add the charge of
            murder of the third degree, and denying a habeas corpus
            challenge, and confirming that eyewitnesses can testify about
            their observations of vehicles travel[]ing at high speeds in the
            August 29, 2024, opinion, and then, in its April 25, 2025,
            [Motion in Limine Order], prohibiting four eyewitnesses to
            [Rivera’s] dangerous and reckless driving just before, during,
            and after the incident from fully testifying to what they saw
            as far as [Rivera’s] vehicle travelling at a “high rate of speed”
            driving “like a missile” and leaving the scene like a “bat out
            of hell” on October 19, 2023?
____________________________________________


20 The trial court did not exclude the video portion of the body cam video.


                                          - 18 -
J-A06017-26



     II.   Whether the trial court committed legal error and abused its
           discretion in its April 25, 2025[, Motion in Limine Order] by
           prohibiting the introduction at trial of rolling papers and a
           suspected baggie of marijuana lawfully recovered from
           [Rivera’s] vehicle, when the record was incorrectly cited by
           the trial court that the items were all located in the trunk of
           [Rivera’s] vehicle, and when the record does not support the
           trial court’s findings, as the trial court directs attention, on its
           own, to the search warrant issued on December 15, 2023, for
           [Rivera’s] car, where the inventory from that search warrant,
           filed of record on December 15, 2023, described where every
           item was located?

     III. Whether the trial court committed legal error and abused its
          discretion by issuing unsolicited relevancy rulings in the April
          25, 2025, [Motion in Limine Order, which are] not supported
          by the record, by stating that the rolling papers and baggie
          of suspected marijuana were not relevant, and reciting
          incorrect legal principles such as the items were not “within
          the reach of the defendant” [or] “within the reach of the
          driver,” and stating that there was a gap in time between the
          incident and the search [of Rivera’s vehicle,] despite the
          vehicle being seized on October 19, 2023, and [the fact that
          the] items [found therein were] not disturbed until the search
          warrant was executed, and items [were] lawfully recovered
          from [Rivera’s] vehicle, and [where the trial court did] not
          giv[e] the Commonwealth the opportunity to argue the
          relevancy points, or to address the incorrect legal points that
          the court relied upon for the first time in its April 25, 2025,
          [Motion in Limine Order], prohibiting the introduction at trial
          of the baggie of marijuana and rolling papers?

     IV. Whether the trial court committed error and abused its
         discretion by sua sponte, in its April 25, 2025, [Motion in
         Limine Order], prohibiting [the Commonwealth from
         introducing into evidence] the audio recording portion of [the
         body cam video], despite that request not being before the
         trial court?

     V.    Whether the trial court abused its discretion by prohibiting
           the introduction at trial of [Pa.R.E.] 404(b) evidence of
           [Rivera] video-recording himself driving at 130 miles per
           hour, when the proffer was to establish at trial lack of

                                       - 19 -
J-A06017-26


            accident, [and] when the proffer showed that the undated
            [Facebook] video was still part of [Rivera’s] postings on his
            Facebook page on the date of the October 19, 2023, incident,
            and that the [Facebook] video was subsequently deleted from
            [Rivera’s] Facebook page after [Rivera] received the 404(b)
            notice, which points to consciousness of guilt and lack of
            accident?

Commonwealth Brief at 4-5 (some capitalization and punctuation modified).

       In reviewing the propriety of a trial court’s ruling on a motion in limine,

“we    apply   an   evidentiary   abuse   of   discretion   standard   of   review.”

Commonwealth v. Mitchell, 902 A.2d 430, 455 (Pa. 2006). It is axiomatic

that

       the admission of evidence is solely within the discretion of the trial
       court, and a trial court’s evidentiary rulings will be reversed on
       appeal only upon an abuse of that discretion. An abuse of
       discretion is not simply an error of judgment, but is an overriding
       misapplication of the law, or the exercise of judgment that is
       manifestly unreasonable, or the result of bias, prejudice, ill-will,
       or partiality.

Commonwealth v. Walters, 323 A.3d 151, 157 (Pa. 2024) (internal

citations omitted).

       This Court has stated that

       [a] finding by an appellate court that it would have reached a
       different result than the trial court does not constitute a finding of
       an abuse of discretion. Where the record adequately supports the
       trial court’s reasons and factual basis, the court did not abuse its
       discretion.

Commonwealth v. Hall, 345 A.3d 332, 336 (Pa. Super. 2025) (citation

omitted).




                                      - 20 -
J-A06017-26


       In its first issue, the Commonwealth contends the trial court erred “by

misapplying the law and reaching incorrect conclusions of law in the realm of

eyewitness testimony involving speed and operation of a motor vehicle.”

Commonwealth Brief at 21. The Commonwealth points out that, in granting

Rivera’s motion in limine on this point, the trial court

       suppressed any and all eyewitness testimony that explains the
       manner in which [Rivera] was operating his vehicle, including, but
       not limited to: “he came out of nowhere,” “travelled like a missile,”
       travelled at a “high rate of speed,” “fled the scene at a high rate
       of speed” and/or took off “like a bat out of hell.”

Id. (some punctuation and quotation marks added).           The Commonwealth

complains it “has been forced to face trying its case in a vacuum regarding

eyewitnesses in this case when that should not be the case.” Id. at 14.

       By means of background, we set forth the trial court’s reasoning, in its

Motion in Limine Order, pertaining to the Commonwealth’s proffered lay

opinion testimony:

       The defense submits that [Mr.] Decker and other lay witnesses
       called by the Commonwealth who will testify to speed … cannot so
       testify under applicable [Pennsylvania R]ules of [E]vidence, Rules
       602, 701, and 702, as well as various cases addressing lay witness
       opinion testimony regarding a vehicle[’]s speed. Some of these
       witnesses testified at the preliminary hearing, which was
       transcribed, and/or gave statements to law enforcement. A
       Pennsylvania State Police Accident Reconstruction Expert
       conducted an examination … of this incident, but was apparently
       unable to opine forensically on the speed of [Rivera’s] vehicle.21
____________________________________________


21At the hearing on the Motion to Amend, the prosecutor stated that “the
accident reconstruction did not determine a speed, because there were no tire
marks or yaw marks on the road[.]” N.T., 7/30/24, at 11. The prosecutor
(Footnote Continued Next Page)


                                          - 21 -
J-A06017-26



                                          ***

       Mr. Decker may testify to the vehicle’s numeric speed
       estimate so long as the Commonwealth lays the proper
       foundation. However, Mr. Decker is prohibited from testifying
       with general characterizations of speed such as that it felt
       like a missile was coming, it came out of nowhere, and/or
       [was] traveling fast, etc. Similarly, if [Mrs. Decker] is called to
       testify about speed, she is prohibited from giving general
       characterizations regarding speed like he took off like a bat out of
       hell, etc. [Mrs. Decker] is similarly limited to numeric speed
       estimates if a proper foundation is established first.

       … [Regarding Mr. Pritschman, he] did not get a clear view of the
       vehicle. He heard, more than saw, the vehicle. [Mr. Pritschman’s]
       observation was brief and partial. Based on the proffer, the court
       finds that his numeric lay opinion as to speed is too speculative
       given his limited ability to see the vehicle and [his statement] that
       he heard it more than saw it. [Rivera’s] motion in limine is
       granted therefore as to Mr. P[r]itschman’s lay opinion testimony
       as to the vehicle’s speed.

       … [Regarding Mr. Lennon, he is expected to testify that,] while in
       his front yard, which was a few miles from the crash site, he
       observed a white car dragging parts of its front end underneath,
       while the vehicle traveled at a “high rate of speed” and ran a stop
       sign at the intersection of Dutchtown Road and Mushrush Road.
       Accordingly, [Rivera’s] motion in limine is granted as to the
       phrase “high rate of speed.” The proffer did not include
       any numeric estimation of speed testimony from [Mr.
       Lennon]. [Rivera’s] motion in limine is denied as to [Mr.
       Lennon’s] testimony that the car ran a stop sign.

Motion in Limine Order, 4/25/25, at 6, 9-10 (unpaginated) (emphasis and

footnote added; original emphasis omitted; some citations, punctuation, and

paragraph formatting modified). Citing this Court’s decision in the civil case,


____________________________________________


clarified that the Commonwealth was not relying upon the accident
reconstruction report in support of its case. Id. at 12.

                                          - 22 -
J-A06017-26


Kearns v. DeHaas, 546 A.2d 1226 (Pa. Super. 1988), the trial court

determined that “[n]on-numerical estimates by lay witnesses such as ‘fast,’

‘excessive,’ etc. are not permitted.” Motion in Limine Order, 4/25/25, at 7

(unpaginated) (quoting Kearns, 546 A.2d at 1234).

       The Commonwealth argues that, under our jurisprudence,

       [t]he standard is that an eyewitness to the defendant’s driving is
       not limited to estimating the numeric speed of the vehicle. The
       eyewitness is permitted to elaborate and expound on what they
       saw, subject to a proper foundation being laid, and subject [to]
       cross-examination, of course.

Commonwealth Brief at 23 (some punctuation modified); see also id. at 24

(asserting eyewitnesses to a speeding vehicle “are not bound solely by

numeric, sterilized terminology in a vacuum.”). The Commonwealth maintains

that, at trial, Mr. Decker, Mrs. Decker, Mr. Lennon, and Mr. Pritschman would

each

       have a foundation laid of their knowledge of driving at various
       speeds, driving at different speeds in their neighborhood, and
       differentiating between going too fast, versus slow, versus
       travelling at an appropriate speed.

Id. at 26. According to the Commonwealth,

       it flies in the face of common sense not to allow eyewitnesses with
       the life experience of operating motor vehicles, and exposure to
       motor vehicles travelling in their highly residential neighborhood,
       to testify rationally on what they perceived.

Id. (some punctuation modified).

       The Commonwealth posits that

       the current state of the law involving testimony of reckless driving,
       conscious disregard for the safety of others, and malice regarding

                                      - 23 -
J-A06017-26


       the operation of a vehicle by a defendant charged with murder of
       the third degree, as a result of striking and killing someone with
       their vehicle, is set forth … in this Court’s en banc decision in
       Commonwealth v. Peters, [320 A.3d 1231 (Pa. Super. 2024)
       (en banc),22 appeal granted, 332 A.3d 27 (Pa. Jan. 6, 2025)].

Commonwealth Brief at 22 (footnote added; some capitalization and

punctuation modified).



____________________________________________


22  In Peters, a vehicular homicide case, we determined that the
Commonwealth presented sufficient evidence to sustain the appellant’s
conviction by a jury of third-degree murder and aggravated assault, under the
totality of the following circumstances: (1) the appellant consumed copious
amounts of alcohol and then drove his vehicle, long distances on a highway,
at speeds significantly in excess of the speed limit (reaching 115 mph); (2)
the appellant exhibited sustained recklessness, and a conscious disregard for
the safety of others, in his erratic and dangerous driving; (3) the appellant
“had ample opportunity to reflect upon and cease his reckless conduct, yet he
persisted over a considerable period of time”; and (4) immediately prior to
the fatal collision, the appellant took his eyes off the road, while driving 115
mph, in an attempt to retrieve an object on the vehicle’s floor. Peters, 320
A.3d at 1240-41, 1242. We held that “the record supports the jury’s finding
that [a]ppellant acted with the requisite malice to sustain his convictions of
third-degree murder and aggravated assault[,]” and emphasized that “this is
not a typical case of ordinary recklessness that arises when someone chooses
to drive while intoxicated.” Id. at 1241, 1243 (citation and brackets omitted).

       In the instant case, the trial court competently summarized Peters, and
related precedent, in its August 29, 2024, Memorandum Opinion and Order
granting the Commonwealth’s Motion to Amend the information to add a count
of third-degree murder. See Memorandum Opinion and Order, 8/29/24, at
5-6 (unpaginated) (analyzing Peters and one of the cases Peters applied,
Dunphy, 20 A.3d at 1219-20 (in a vehicular homicide case, holding the
Commonwealth presented sufficient evidence to sustain the appellant’s
conviction of third-degree murder, as “the totality of the circumstances”
established that the appellant acted with the requisite malice, where he (1)
traveled at an excessive speed, while intoxicated by alcohol, on a highway
where pedestrians were present; (2) “speeded up to make [a red traffic] light”
despite seeing pedestrians in front of him; (3) struck a pedestrian crossing
the highway; and (4) sped away from the scene without stopping)).

                                          - 24 -
J-A06017-26


      The Commonwealth points out that the trial court, in its August 29,

2024, Memorandum Opinion and Order, which “permit[ted] the addition of

murder of the third degree, cited the Peters Court several times[.]” Id. at

23 (capitalization modified); see also Memorandum Opinion and Order,

8/29/24, at 5-6 (unpaginated). The Commonwealth emphasizes the Peters

Court’s observation that the trial evidence in that case established that, in the

minutes preceding the fatal crash, the intoxicated appellant

      traveled without headlights, at high rates of speed, and alternated
      his speed from fast to slow. He did not use his turn signals and
      continuously changed lanes and passed other vehicles too
      closely[.]

Peters, 320 A.3d at 1240 (citation, emphasis, and brackets omitted); see

also Commonwealth Brief at 23.

      The Commonwealth complains that

      for the [trial] court to now say that only numerical terminology
      may be [used by the lay witnesses] … completely contradicts the
      analysis and holding it relied on less than a year earlier in its
      August 29, 2024, [Memorandum Opinion and Order], sterilizes the
      truth-finding process, and is legal error.

Commonwealth Brief at 14 (some capitalization and punctuation modified).

      Pennsylvania Rule of Evidence 701 provides that a lay witness may offer

“testimony in the form of an opinion” if it is “rationally based on the witness’s

perception”; “helpful to clearly understanding the witness’s testimony or to

determining a fact in issue”; and “not based on scientific, technical, or other

specialized knowledge within the scope of Rule 702.” Pa.R.E. 701(a)-(c); see

also Pa.R.E. 602 (“A witness may testify to a matter only if evidence is

                                     - 25 -
J-A06017-26


introduced sufficient to support a finding that the witness has personal

knowledge of the matter.”); Commonwealth v. T.B., 232 A.3d 915, 919 (Pa.

Super. 2020) (“Fact testimony may include opinion or inferences so long as

those opinions or inferences are rationally based on the witness’s perceptions

and helpful to a clear understanding of his or her testimony.” (citation

omitted)).   “[L]ay testimony is intended to describe something that jurors

otherwise had not been able to experience for themselves, by drawing upon

the sensory and experiential observations that the witness made firsthand.”

Rose, 172 A.3d at 1131.

     It is well settled that “lay people are competent to express an opinion

as to the speed a vehicle is traveling.” Commonwealth v. Reynolds, 389

A.2d 1113, 1119 (Pa. Super. 1978); see also Vrabel v. Commonwealth,

844 A.2d 595, 598 (Pa. Cmwlth. 2004) (stating that “because the use of motor

vehicles is so common, courts do not restrict testimony about the operation

of motor vehicles to expert witnesses.” (citations omitted)). Cf. Pa.R.E. 702

(governing expert testimony). This Court has stated that a lay witness may

estimate a vehicle’s speed if he or she had an “overall opportunity for

adequate observation” of the subject vehicle, such that someone who has

experience operating motor vehicles could accurately estimate the vehicle’s




                                    - 26 -
J-A06017-26


speed. Fisher v. Cent. Cab Co., 945 A.2d 215, 219 (Pa. Super. 2008) (citing

Radogna v. Hester, 388 A.2d 1087, 1089 (Pa. Super. 1978)).23

       In Radogna, this Court explained that

       [some] decisions have required that the witness have something
       more than just a “fleeting” glance of the vehicle in question, … the
       important consideration being that the witness have at least a
       minimum of time to make a reasonable estimation of speed.
       Cases which have rejected a witness’ observation because the
       witness did not see the vehicle in motion for more than a few feet
       before the collision have indicated that the witness’ testimony was
       not admissible because of the brevity, the fleeting nature of the
       observation.      However, [Pennsylvania courts have] never
       attempted to establish any minimum distance requirement for
       competency of lay witness estimates.

              There are other cases in which the distance traveled by the
       moving vehicle during the period of observation has been
       appreciable, yet the court has rejected the witness’ testimony
       because the moving vehicle had come directly toward the witness,
       making any estimation of speed speculative. The test for
       admissibility of lay witness estimations of speed, therefore, is not
       strictly connected with evidence of the distance traversed by the
       vehicle in question but, rather, depends upon the existence of an
       overall opportunity for adequate observation, in addition to the
       witness’ prior experience with moving vehicles. Evidence of the
       distance over which the observed vehicle moved during the period
       of observation will go to the weight of the witness’ estimation. If
       the distance is exceedingly small, the court may refuse to allow
____________________________________________


23  We pause to acknowledge that Fisher and Radogna, as well as the
authorities upon which the trial court in the instant case relied in support of
its motion in limine ruling, are civil cases. Nevertheless, appellate courts, in
criminal cases implicating the admissibility of lay opinion vehicle speed
estimates, have frequently cited to civil cases. See, e.g., Commonwealth
v. Honeycutt, 323 A.2d 775, 778 (Pa. Super. 1974) (discussed infra), and
Commonwealth v. Reynolds, 273 A.3d 1035, 927 MDA 2021 (Pa. Super.
2022) (unpublished memorandum at 10-11) (citing Fisher regarding lay
witness opinion testimony about vehicle speed); see also Pa.R.A.P. 126(b)
(providing this Court’s unpublished memoranda filed after May 1, 2019, may
be cited for their persuasive value).

                                          - 27 -
J-A06017-26


      the witness to offer an estimate of speed because it is apparent
      that the witness had only a “fleeting” glimpse of the moving
      vehicle.

Radogna, 388 A.2d at 1088-89 (internal citations and footnotes omitted);

see also Reynolds, 389 A.2d at 1119 (stating that “[i]n order to establish a

basis for the admission” of evidence pertaining to lay opinion vehicle speed

estimations, “a party must show that the witness had an opportunity to

observe a vehicle’s movement and has a recognition of impressions of like

vehicles at relative speeds.”). Additionally, our Supreme Court has stated that

“[a]bsolute accuracy is not required to make a witness competent to testify to

the speed of an automobile[.]” Finnerty v. Darby, 138 A.2d 117, 123 (Pa.

1958).

      In the instant appeal, the trial court relied upon this Court’s civil decision

in Kearns, supra, for the proposition that “[n]on-numerical estimates by lay

witnesses such as ‘fast,’ ‘excessive,’ etc. are not permitted.” Motion in Limine

Order, 4/25/25, at 7 (unpaginated) (quoting Kearns, 546 A.2d at 1234). The

Kearns Court in turn cited to our Supreme Court’s decisions in Catina v.

Maree, 447 A.2d 228 (Pa. 1982), and Starner v. Wirth, 269 A.2d 674 (Pa.

1970). Kearns, 546 A.2d at 1234. In Catina, the Court stated that “this

Court has held ‘while lay witnesses are permitted to express opinion estimates

of vehicle speed in numerical terms, terms such as ‘fast’ or ‘slow’ or ‘excessive’

and the like have been found to be conclusory in nature as well as lacking in




                                      - 28 -
J-A06017-26


evidentiary value.’” Catina, 447 A.2d at 232 (quoting Starner, 269 A.2d at

676).

        We are guided by Honeycutt, 323 A.2d 775, which this Court decided

over half a century ago.        In that case, at the appellant’s jury trial for

involuntary manslaughter, the Commonwealth sought to establish the mens

rea element of recklessness for a conviction of that offense. Id. at 778. The

Commonwealth presented testimony from a lay witness (Mrs. Wright)

regarding the dangerous driving she observed shortly prior to the fatal

collision. Mrs. Wright testified that while she was driving on a highway, she

observed a car, operated by the appellant, racing another vehicle, at speeds

significantly exceeding the speed limit.        Id. at 777.   After tailgating Mrs.

Wright, both vehicles eventually sped past her, and the appellant cut her off.

Id. Shortly thereafter, Mrs. Wright came upon the scene of multiple wrecked

vehicles, including the two cars she had seen speeding. Id. The driver of a

third vehicle was killed. Id. A jury convicted the appellant of involuntary

manslaughter. Id. at 776.

        On appeal, the appellant claimed, “the trial court erred in not excluding

Mrs. Wright’s testimony, and therefore erred in denying the appellant’s post-

trial motions in arrest of judgment or for a new trial.” Id. at 778. This Court

disagreed. We initially observed that

        [i]t is widely recognized that if the fact to be proved is speed, and
        speed alone, the observations of speed prior to an accident will
        usually be greatly circumscribed with respect to time and distance,


                                       - 29 -
J-A06017-26


     unless they are otherwise corroborated. Whether the testimony
     should be barred will vary with the facts from case to case[.]

Id. (internal citations omitted; emphasis added).

     The Honeycutt Court determined that, under the circumstances in that

case, “[s]uch a circumscription should not apply,” where

     the Commonwealth did not seek merely to prove speed, rather it
     sought to demonstrate that the manner in which the appellant
     drove was reckless. Of course, while circumstantial evidence may
     only be minimally relevant with regard to one issue, the same
     evidence may be highly relevant to prove another. Thus, contrary
     to the usually strict limitation of evidence of prior speed when
     offered only to show speed at the time of the collision, it has been
     said that, “where recklessness, wantonness, or wi[l]lfulness is an
     issue it is frequently necessary, or desirable in order to establish
     a strong case, to show not only an indifference to consequences
     at the instant an accident occurred, but also that such a state of
     mind persisted for several minutes prior to the accident. Where
     evidence is offered for this purpose[,] the court may admit
     testimony that the party was driving at a high and dangerous rate
     of speed at a relatively remote point.” Annot., 46 A.L.R.2d 9, 62
     (1956). In order to prove its case, the Commonwealth had to
     show more than the speed at which [the appellant] traveled; it
     had to show he drove in a manner which was “such a departure
     from prudent conduct as to evidence a disregard of human life or
     an indifference to consequences.” Commonwealth v. Hartle,
     188 A.2d 798, 801 (Pa. Super. 1963) [(a case in which the
     appellant was convicted of involuntary manslaughter after a road
     racing-related accident that killed four people)].               See
     also Commonwealth v. Holman, 50 A.2d 720 (Pa. Super.
     1947). Unlike the speed at which a vehicle is traveling, a state of
     mind which demonstrates “a marked disregard for the safety of
     others” is not likely to change significantly in a matter of
     seconds[.] Commonwealth v. Clo[w]ser, 239 A.2d 870, 873
     (Pa. Super. 1968). Thus, a great deal of latitude is appropriate
     when circumstantial evidence is offered to show a state of mind[.]
     1 Jones on Evidence, § 4:12 (6th ed. 1972). As Justice Musmanno
     has said, in a case where reckless driving was at issue, “To restrict
     the compass of a trial (criminal or civil) to the pinpoint of the
     culminating crisis would be to make verdicts of juries mere
     guesses.” Gregg v. Fisher, 105 A.2d 105, 110 (Pa. 1954).

                                    - 30 -
J-A06017-26



Honeycutt, 323 A.2d at 778 (some internal citations omitted; bold emphasis

in original; underline emphasis added; some citations modified). Accordingly,

we concluded the trial court did not abuse its discretion in admitting Mrs.

Wright’s testimony. Id. at 778-79; see also id. at 778 (observing that “the

Commonwealth did offer evidence which circumstantially corroborated the

testimony of Mrs. Wright[,]” including photographs of the scene and the

testimony of police who investigated the accident).

      More recently, this Court issued our en banc decision in Akhmedov,

216 A.3d 307. In that case, wherein the defendant was charged with third-

degree murder following a fatal vehicle accident, we reaffirmed that “[p]arties

are to be given greater latitude to present evidence when they are tasked with

establishing a state of mind.” Id. at 317 (citing Honeycutt, 323 A.2d at 778).

      Instantly, we determine the trial court abused its discretion in applying

an overly strict application of the law regarding lay opinion testimony in the

context of a criminal case. See Honeycutt, supra; Akhmedov, supra. Like

the situation in Honeycutt, “[i]n order to prove its case, the Commonwealth

had to show more than the speed at which [Rivera] traveled.” Honeycutt,

323 A.2d at 778. Rather, the Commonwealth also will be required to prove

Rivera’s state of mind in connection with several charges, including third-

degree murder. See Wellman, 344 A.3d at 23 (malice is an essential element

of third-degree murder). Accordingly, the trial court should have afforded the




                                    - 31 -
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Commonwealth “greater latitude to present evidence,” as it was “tasked with

establishing a state of mind.” Akhmedov, 216 A.3d at 317.

      Moreover, as the Commonwealth correctly points out, in Peters, lay

witnesses were permitted to offer non-numerical opinion testimony and

descriptions of the appellant’s reckless driving and excessive speed, in a case

in which the Commonwealth was tasked with proving malice to establish

appellant’s guilt of third-degree murder and aggravated assault. See Peters,

320 A.3d at 1232, 1233.        Specifically, the lay witnesses in Peters were

permitted to testify that the intoxicated appellant (1) “erratically changed

speeds, back and forth from fast to slow”; (2) “came flying right by me”; and

(3) “came flying past me on the left-hand side[.]” Id. (citation omitted).

      We acknowledge that our Supreme Court, in Starner, supra, and

Catina, supra (i.e., the authorities upon which the trial court in the instant

case based its motion in limine ruling), stated that lay witnesses may offer

opinions of vehicle speed only in numerical terms.      Significantly, however,

Starner and Catina are both older civil cases in which no party was required

to prove a mens rea.

      Consistent with the foregoing, we conclude that, in a criminal case in

which the Commonwealth is required to prove a state of mind, lay witnesses

are not strictly limited to assigning a numeric value to vehicle speed estimates

and descriptions of driving.    Rather, they are permitted to explicate and

contextualize their speed estimations, as well as describe the manner in which


                                     - 32 -
J-A06017-26


the vehicle is operated, provided that a sufficient foundation is laid.       See

Peters, 320 A.3d at 1232, 1233; Honeycutt, 323 A.2d at 778-79.

       Accordingly, we reverse the Motion in Limine Order to the extent that it

limited the Commonwealth’s proposed witnesses to phrasing their lay opinion

testimony in terms of solely numeric speed estimations. However, we affirm

the Order to the extent that it excluded Mr. Pritschman’s proposed testimony,

based on the trial court’s finding that “[Mr. Pritschman’s] numeric lay opinion

as to speed is too speculative given his limited ability to see the vehicle

and [his statement] that he heard it more than saw it.”        Motion in Limine

Order, 4/25/25, at 10 (unpaginated) (emphasis added); see also Radogna,

388 A.2d at 1089 (stating that a trial court “may refuse to allow the witness

to offer an estimate of speed because it is apparent that the witness had only

a ‘fleeting’ glimpse of the moving vehicle.”).

       We next address the Commonwealth’s second and third issues together,

as they both challenge the trial court’s exclusion of the suspected marijuana

and paraphernalia that police found while executing the search warrant for

Rivera’s vehicle. See Commonwealth Brief at 26-33. The Commonwealth

contends this evidence is

       clearly tied to the giant marijuana cigarette left at the scene of
       the incident,24 [] part of the facts of the case, and [] important …


____________________________________________


24 We reiterate that the trial court denied Rivera’s motion in limine to exclude

the marijuana cigarette.         See Motion in Limine Order, 4/25/25, at 4-5
(unpaginated).

                                          - 33 -
J-A06017-26


      information having a significant and demonstrable bearing on the
      matter at hand, including the presence of malice.

Id. at 33 (footnote added; emphasis omitted; some punctuation modified);

see also id. at 17 (“By granting the Commonwealth’s request to amend the

criminal information to include murder of the third degree, the trial court

absolutely made the rolling papers and baggy of marijuana relevant.” (some

capitalization modified)).

      To provide context, we detail at the outset the trial court’s reasoning,

set forth in its Motion in Limine Order, regarding Rivera’s motion to exclude

the evidence found in his vehicle:

      [Rivera’s] motion is [] granted as to any and all evidence and/or
      testimony regarding illegal controlled substances, rolling papers
      and/or other drug paraphernalia and unopened cans … found in …
      [Rivera’s] vehicle, after it was allegedly abandoned by him, on or
      about November 11, 2023. The court finds that the fact that none
      of the items later seized in the car pursuant to a search warrant
      were alleged to be within reach of [Rivera] while driving
      his car on October 19, 2023, and the gap in time between
      this alleged incident and the search [of the vehicle on
      November 11, 2023,] is too significant to overcome a
      relevance objection. In addition, even if the time gap was
      significantly shorter, the prejudice of this tangential evidence,
      which is not connected, per the proffer, to smoking [] marijuana
      prior to the event, outweighs its probative value in light of the
      proffer.

Motion in Limine Order, 4/25/25, at 4-5 (unpaginated) (emphasis added;

original emphasis omitted; some capitalization and punctuation modified).

      Similarly, in its Rule 1925 Opinion, the trial court stated that

      since [the trial court] did not know where the marijuana and
      rolling papers were located [in Rivera’s vehicle], then the
      relevance [of this evidence] became more speculative as to

                                     - 34 -
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      whether it had any bearing on the Commonwealth’s belief that
      [Rivera] was high at the time of this incident, and [] its [prejudicial
      effect] outweighed its evidentiary worth.

Rule 1925 Opinion, 7/25/25, at 5 (unpaginated).

      On appeal, the Commonwealth claims that

      the trial court made incorrect findings of fact that were known to
      the trial court via a search warrant inventory filed of record on
      December 15, 2023, surrounding where items recovered from
      [Rivera’s] vehicle were found. …. Additionally, the trial court
      incorrectly applied the law meant for analyzing the validity of
      warrantless searches for [the] presence of weapons by law
      enforcement, by using terms associated with those warrantless
      searches. See Commonwealth v. Tuggles, 58 A.3d 840 (Pa.
      Super. 2012). Those terms used by the trial court were “within
      the reach of the defendant” and/or “within the reach of the driver.”

Commonwealth Brief at 30 (some capitalization, punctuation, and paragraph

breaks modified). The Commonwealth asserts the court “further incorrectly

opined that, since no drug charges were filed, the evidence was not relevant.

The Commonwealth is not required to file every single charge that could be

filed in the matter.” Id. at 16.

      “The threshold inquiry with admission of evidence is whether the

evidence is relevant.” Commonwealth v. Yale, 249 A.3d 1001, 1022 (Pa.

2021); see also id. at 1023 (“Evidence is to be liberally admitted at trial.”).

Evidence is relevant if “it has the 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(a)-(b). “All relevant

evidence is admissible, except as otherwise provided by law. Evidence that is

not relevant is not admissible.” Pa.R.E. 402.

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       Pursuant to Rule of Evidence 403, a trial court “may exclude relevant

evidence if its probative value is outweighed by a danger of one or more of

the following: unfair prejudice,25 confusing the issues, misleading the jury,

undue delay, wasting time, or needlessly presenting cumulative evidence.”

Pa.R.E. 403 (footnote added). The permissive language “may” in Rule 403

affords trial courts significant discretion in deciding whether to exclude

relevant    evidence     as    unfairly    prejudicial   under   Rule   403.   See

Commonwealth v. Jordan, 65 A.3d 318, 325 (Pa. 2013) (“Admission of

evidence rests within the sound discretion of the trial court, which must

balance evidentiary value against the potential dangers of unfairly prejudicing

the accused, inflaming the passions of the jury, or confusing the jury.”).

       However, “[e]vidence will not be prohibited merely because it is

harmful to the defendant. Exclusion is limited to evidence so prejudicial

that it would inflame the jury to make a decision upon something other than

the legal propositions relevant to the case.” Commonwealth v. Knupp, 290

A.3d 759, 776 (Pa. Super. 2023) (emphasis added; citation, brackets, and

quotation marks omitted). “The trial court is not required to sanitize the trial

to eliminate all unpleasant facts … where those facts are relevant to the issues



____________________________________________


25 “Unfair prejudice,” in the context of applying Rule 403, “means a tendency

to suggest decision on an improper basis to divert the jury’s attention away
from its duty of weighing the evidence impartially.” Commonwealth v.
Smith, ___ A.3d ___, 2026 WL 530493, at *11 (Pa. Feb. 26, 2026) (footnote
omitted) (quoting Pa.R.E. 403, cmt.).

                                          - 36 -
J-A06017-26


at hand[.]”     Commonwealth v. Hairston, 84 A.3d 657, 666 (Pa. 2014)

(citation and internal quotation marks omitted).

       After review, we agree with the Commonwealth that the trial court

abused its discretion in excluding the evidence police seized from Rivera’s

vehicle.   Initially, the legality of the search warrant is undisputed.    Also

undisputed is the fact that police took custody of the vehicle shortly after the

incident, impounded it, and did not thereafter disturb its contents until law

enforcement searched it on November 11, 2023.26 Accordingly, we cannot

agree with the trial court that the three-week “gap in time”—i.e., during which

time Rivera’s vehicle was securely impounded prior to execution of a lawful

warrant—has any bearing on the relevance of the evidence police found in the

vehicle. Motion in Limine Order, 4/25/25, at 5 (unpaginated).

       Moreover, the trial court, in weighing the relevance of this evidence,

placed undue importance upon the purported fact that “none of the items []

seized in the car … were alleged to be within reach of [Rivera] while driving

his car on October 19, 2023[.]” Id. (emphasis added). We fail to discern the

import of whether or not the items were within Rivera’s reach at the relevant

time. As the Commonwealth persuasively argues, “that type of analysis is

meant for arguments surrounding warrantless searches for weapons by law

enforcement of []areas within the reach of a defendant in a vehicle stop[,]


____________________________________________


26 At no time did Rivera file a motion to suppress evidence or contend that the

contents of his vehicle were disturbed while it was impounded.

                                          - 37 -
J-A06017-26


and is used for justification … of police searching an area of a vehicle within

the reach … of a defendant.”       Commonwealth Brief at 16 (emphasis in

original).

      It bears reemphasizing that the trial court permitted the Commonwealth

to introduce other evidence that may tend to indicate Rivera had smoked

marijuana prior to the incident. See Motion in Limine Order, 4/25/25, at 4

(unpaginated).    Specifically, the Commonwealth proposes to introduce

pictures of the marijuana cigarette, as well as testimony from multiple

witnesses who will testify that they detected an odor of marijuana emanating

from Rivera’s person at the scene and that the scene smelled of marijuana.

See id.; N.T., 3/24/25, at 54.

      Finally, as we thoroughly discussed supra, trial courts should afford

parties a “great deal of latitude … when circumstantial evidence is offered to

show a state of mind[.]” Honeycutt, 323 A.2d at 778. Here, the proffered

evidence was highly relevant to establishing Rivera’s state of mind at the

relevant time, and whether he acted with the requisite malice to support the

third-degree murder charge. See Peters, 320 A.3d at 1237-40 (collecting

cases); see also Dunphy, 20 A.3d at 1219 (“Malice may be inferred by

considering the totality of the circumstances.”).

      Accordingly, as we conclude the trial court abused its discretion in

excluding relevant evidence of suspected marijuana and contraband that




                                    - 38 -
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police found in Rivera’s vehicle, we reverse the Motion in Limine Order to the

extent it excluded such evidence.

      In its fourth issue, the Commonwealth contends the trial court abused

its discretion by sua sponte excluding the audio portion of the body cam video,

where (1) Rivera purportedly never requested this relief in his motion in

limine, and (2) the audio was relevant and admissible. See Commonwealth

Brief at 33-35; see also id. at 18 (asserting the trial court “went beyond the

scope of its duties by addressing this matter.”). The Commonwealth claims

this evidence relayed “part of the history and unfolding of the case [and]

relate[s] to the marijuana cigarette left at the scene of the incident[.]” Id. at

18. The Commonwealth further explains that the officer who wore the body

camera at issue “would be available to testify at trial.” Id. According to the

Commonwealth,

      the true problem is that the trial court incorrectly asserted that
      the defense filed a challenge to [the body cam video] in their
      motion in limine. The Commonwealth was never afforded [] notice
      and [given a] proper opportunity to [respond to] this issue or
      investigate it prior to [the motion in limine] hearing ….

Id. at 35 (some capitalization modified).

      In its Rule 1925 opinion, the trial court determined that it properly

excluded the audio portion of the body cam video, reasoning as follows:

      While the Commonwealth correctly points out that defense
      counsel did not have a motion in limine specifically challenging
      police body camera recordings, the defense was seeking to
      exclude evidence of the marijuana cigarette found at the scene
      near [Rivera’s] car when he stopped to check on the victim. [At
      the motion in limine hearing, t]he prosecution volunteered 14

                                     - 39 -
J-A06017-26


       minutes of body cam footage to the court in Commonwealth Ex.
       1, a zip drive, to show the court “in real[-]time when the
       [marijuana] cigarette was found and what the officers were
       discussing ….” [N.T., 3/24/25,] at 66-67. Clearly, the court did
       not sua sponte bring up the body cam [video] issues, and it was
       being addressed because of the defense motion to exclude any
       evidence regarding the [marijuana] cigarette found at the scene.
       After viewing Ex[hibit] 1, the court asked defense counsel if he
       was trying to exclude this footage, to which he advised the court
       that he was objecting to recorded statements like references [in
       the body cam video] to “Cheech and Chong,” and it smells like
       marijuana, [and] it[’]s freshly burnt …. Id. at 68-69. …. Finally,
       [at the motion in limine hearing,] the prosecutor seemed to
       indicate that he had no problem with the court redacting
       some of the audio recording. Id. at 7[0 (the prosecutor stating
       that the audio portion of the body cam video “can be edited to
       leave the Cheech and Chong portion out.”).] The audio portion of
       the body cam video is obviously hearsay27 and the Commonwealth
       did not offer any hearsay exception that would overcome any
       objection. Moreover, the audio portion contains a narrative,
       and comments by law enforcement and others, in sort of a
       play-by-play format that is highly prejudicial, and would
       not be subject to cross-examination, and may also lack a
       foundation. Hence, the court ruled that the audio portion of the
       body cam [video] must be muted, but the video could be played
       with the proper foundation.

             Notably, redaction of portions of the audio would not
       necessarily remove the taint created by the unredacted portions,
       particularly if [Rivera] is not given an opportunity to confront the
       witnesses at trial, nor afforded the right to cross-examination. In
       addition, the jury may give more weight to contemporary
       comments and narrative, with the opportunity to judge credibility,
       if the person speaking is not called as a witness. This ruling
____________________________________________


27 “Hearsay is a statement the declarant does not make while testifying at the

current trial or hearing [and] is offered in evidence to prove the truth of the
matter asserted.” Commonwealth v. Fitzpatrick, 255 A.3d 452, 471 (Pa.
2021) (citing Pa.R.E. 801(c)(1)-(2) (ellipses and quotation marks omitted)).
“Hearsay generally is inadmissible unless it falls within one of the exceptions
to the hearsay rule delineated in the Pennsylvania Rules of Evidence.”
Commonwealth v. Rivera, 238 A.3d 482, 492 (Pa. 2020); see also Pa.R.E.
802 (rule against hearsay).

                                          - 40 -
J-A06017-26


     does not prevent the officer who had the body camera from
     testifying about his observations at the scene, including
     identifying the odor of marijuana with a proper foundation,
     during his testimony at trial.

Rule 1925 Opinion, 7/25/25, at 6-7 (unpaginated) (emphasis and footnote

added; some punctuation modified).

     Our review discloses the trial court’s factual findings are supported by

the record and its legal conclusion is sound.            See id.    Contrary to the

Commonwealth’s claim, the trial court did not sua sponte raise this matter.

In his motion in limine, Rivera asserted that “[t]he Commonwealth has body

camera video evidence” that contains inadmissible references to Rivera’s drug

abuse and problems with addiction. Motion in Limine, 2/21/25, ¶ 30. Rivera

sought preclusion of “any argument or references … about drug possession,

drug evidence, or any insinuation of drug influence while driving.” Id. at 6

(unpaginated) (prayer for relief); see also N.T., 3/24/25, at 68-70 (Rivera’s

argument at the motion in limine hearing advocating for exclusion of the body

cam video). Further, despite the exclusion of the audio portion of the body

cam video, the Commonwealth will be permitted to present testimony from

officers/witnesses regarding the odor of marijuana at the scene. See Rule

1925 Opinion, 7/25/25, at 6-7 (unpaginated).

     In conclusion, we discern no abuse of the trial court’s discretion in

excluding   the   audio   portion   of    the     body   cam   video.   See,   e.g.,

Commonwealth v. Conway, 534 A.2d 541, 544 (Pa. Super. 1987) (in a

Commonwealth appeal, upholding the trial court’s exclusion of the audio

                                         - 41 -
J-A06017-26


portion of an interrogation video, recorded at the police station after

defendant’s arrest for DUI, where “the audio portion of the [video] would be

both more misleading than probative and would contravene [the defendant’s]

constitutional   right   against   self-incrimination”).     Accordingly,    the

Commonwealth’s fourth issue merits no relief.

      In its fifth and final issue, the Commonwealth claims the trial court erred

in precluding it from introducing the Facebook video into evidence, which (1)

purportedly depicted Rivera video-recording himself driving a vehicle at a

speed of 130 mph at some point prior to the incident; and (2) was relevant

and admissible prior bad act evidence under Pa.R.E. 404(b)(2).              See

Commonwealth Brief at 35-37. Although the Commonwealth concedes the

Facebook video is undated, it claims it can otherwise authenticate the video

and establish that Rivera created it before posting it on his Facebook profile.

Id. at 36 (asserting that (1) the voice of the driver in the Facebook video “can

be identified by multiple members of law enforcement as that of [Rivera]”;

and (2) the driver references an individual named “Banner” in the video, and

the Commonwealth introduced evidence, at the motion in limine hearing, that

one of Rivera’s visitors while imprisoned in connection with this case is named

Ryan Banner).

      According to the Commonwealth, the Facebook video “is highly

probative for showing malice and lack of accident.” Id. at 37.

      [The Facebook] video becomes even more probative as a result of
      what happened after the [Commonwealth gave Rivera notice of

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J-A06017-26


      its intent to introduce this prior bad act evidence].     What
      happened was that the [Facebook] video was removed from
      [Rivera’s] Facebook page, which is a form of tampering with
      evidence. It further shows a consciousness of guilt and lack of
      accident through an attempt to destroy evidence.

Id. at 19 (paragraph break omitted).

      Rivera counters the trial court properly excluded the Facebook video,

where the Commonwealth failed to authenticate this evidence or establish

Rivera’s association with it. See Appellee’s Brief at 20-25. Rivera contends

that even if it was properly authenticated, the probative value of the Facebook

video evidence “is clearly outweighed by its potential for unfair prejudice,

which would provide the jury an improper basis” for finding that Rivera “was

‘driving at an extreme rate of speed,’ and divert their attention away from

weighing the evidence impartially.” Id. at 24 (punctuation modified).

      “The overriding principle in determining if any evidence, including

demonstrative, should be admitted involves a weighing of the probative value

versus prejudicial effect.” Serge, 896 A.2d at 1177; see also Pa.R.E. 403,

supra. Rule of Evidence 404(b) provides, in relevant part, as follows:

      (b) Other Crimes, Wrongs, or Acts.

         (1) Prohibited Uses. Evidence of a crime, wrong or other act
         is not admissible to prove a person’s character in order to show
         that on a particular occasion the person acted in accordance
         with the character.

         (2) Permitted Uses. This evidence may be admissible for
         another purpose, such as proving motive, opportunity, intent,
         preparation, plan, knowledge, identity, absence of mistake, or
         lack of accident. In a criminal case this evidence is admissible


                                    - 43 -
J-A06017-26


         only if the probative value of the evidence outweighs its
         potential for unfair prejudice.

Pa.R.E. 404(b)(1)-(2); see also Commonwealth v. Bernarsky, 348 A.3d

304, 326 (Pa. Super. 2025) (stating that “other bad acts evidence is

admissible if offered for a non-propensity purpose” and “if its probative value

outweighs its potential for unfair prejudice.” (citation and brackets omitted)).

      In other words, “prior bad acts may not be admitted for the purpose of

inviting the jury to conclude that the defendant is a person of unsavory

character and thus inclined to have committed the crimes with which he/she

is charged.” Commonwealth v. Ross, 57 A.3d 85, 104 (Pa. Super. 2012)

(en banc) (citation and internal quotation marks omitted). The Ross Court

cautioned that the limited exceptions to Rule 404(b)’s general prohibition of

prior bad act evidence “cannot be stretched in ways that effectively eradicate

the rule.” Id.

      In Akhmedov, supra, a vehicular homicide case, this Court stated that

      [m]ere similarities between a defendant’s prior bad acts and the
      crimes for which he is being tried will not qualify for a Rule
      404(b)(2) exception. Rather, to qualify for an exception to Rule
      404(b)(1)’s general prohibition, the prior bad acts must have
      a close factual nexus sufficient to demonstrate their
      connective relevance to the crime in question.

Akhmedov, 216 A.3d at 316 (emphasis added; internal citations, quotation

marks, and brackets omitted).




                                     - 44 -
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      Instantly, in its Rule 1925 opinion, the trial court determined it properly

excluded the Facebook video from evidence, as its potential for unfair

prejudice outweighed its probative value.

      The [Facebook] video is 30 seconds long and depicts a person
      purportedly driving a vehicle, different from the one [Rivera] was
      driving allegedly at the time of this incident, with the speedometer
      at 130 mph, and the person on the video saying, “This is how you
      [] drive, Banner! Like that, bitch!” The Commonwealth claims it
      can prove through visitor logs at the Butler County Jail that a[n
      individual named] Ryan Banner has visited [Rivera] during
      [Rivera’s] incarceration, but [the Commonwealth] will not call him
      as a witness at trial. The date the [Facebook] video was created
      is unknown, but the Commonwealth argues it proves [Rivera’s]
      propensity to drive above the speed limit. The [trial] court
      found that the [Facebook] video is of low probative value
      in comparison to the prejudicial impact since the driver
      cannot be seen on the video[;] it depicts a different,
      unidentified car with no link proffered to [Rivera;] and
      there is no timeframe showing how long before this
      incident the video was made. … The trial court submits … that
      its ruling falls squarely within its discretion based upon the
      proffer and the court’s knowledge of the entire case.

Rule 1925 Opinion, 7/25/25, at 8 (unpaginated) (emphasis added; some

punctuation modified).

      Upon review, the trial court’s factual findings are supported by the

record, and we discern no abuse of its ample discretion in excluding the

Facebook video. See id.; see also Hall, 345 A.3d at 336 (stating that a

determination “by an appellate court that it would have reached a different

result than the trial court does not constitute a finding of an abuse of

discretion.”).




                                     - 45 -
J-A06017-26


       Assuming arguendo that the Commonwealth properly authenticated the

Facebook video,28 we determine the trial court acted within its discretion in

weighing the probative value of this evidence versus its unduly prejudicial

impact, and excluding it.        We reiterate the Facebook video is undated; it

undisputedly involved a different vehicle than the white Kia that Rivera drove

in the instant incident; and the driver of the vehicle in the Facebook video is

not visible. In light of these dissimilarities, it cannot be said that “a close

factual nexus sufficient to demonstrate the[] connective relevance to the

crime in question” exists. Akhmedov, 216 A.3d at 316.

       The weighing of the relevance and probative value of the Facebook video

against its prejudicial impact was within the trial court’s sole purview and

sound discretion, which we do not lightly disturb.        See Jordan, supra.

Accordingly, we conclude the trial court did not abuse its discretion in granting

Rivera’s motion in limine to exclude the Facebook video.             See, e.g.,

Commonwealth v. Byrd, 598 A.2d 1011, 1015 (Pa. Super. 1991) (holding

the trial court did not err in excluding irrelevant video evidence proffered by

defendant that could confuse the jury). Cf. Akhmedov, 216 A.3d at 314,

318-19 (upholding trial court’s admission of video evidence offered in a third-

degree murder case in which the appellant, driving a silver Audi A4 in

Northeast Philadelphia, was “participating in a drag race when he struck and


____________________________________________


28 The trial court did not address the authenticity of the Facebook video in
either its Motion in Limine Order or Rule 1925 Opinion.

                                          - 46 -
J-A06017-26


killed a mother and three of her children as they attempted to cross the

street[.]”   This Court emphasized that (1) during the investigation, law

enforcement obtained, from appellant’s Facebook profile, a video that showed

“a silver Audi A4 identical to appellant’s” drag racing a BMW, at high rates of

speed, on a known street in Northeast Philadelphia; (2) “in the video’s

comments section, appellant bristled at a commenter who believed the BMW

won the race and asserted he had been driving 110 miles per hour in the clip”;

(3) “the Commonwealth’s case depended upon proving appellant’s intent to

drag race at the time of the accident” and the video was relevant and probative

to establishing appellant’s intent; (4) the circumstances of the drag racing

video and the criminal incident were “sufficiently similar to constitute a close

factual nexus”; and (5) the trial court did not abuse “its discretion in finding

the prejudicial effect of introducing the video did not outweigh its probative

value[,]” as it was “probative of the Commonwealth’s allegation that

appellant’s recklessness was not a casual, momentary mistake in judgment[.]”

(footnote omitted; some capitalization modified)).

      Based upon the foregoing, we reverse the trial court’s April 25, 2025,

Motion in Limine Order to the extent that it precluded the Commonwealth from

introducing (1) non-numerical lay witness descriptions of the manner and

speed of Rivera’s driving from Mr. Decker, Ms. Decker, and Mr. Lennon; and

(2) evidence that law enforcement seized from Rivera’s vehicle pursuant to a

warrant. In all other respects, we affirm.


                                     - 47 -
J-A06017-26


      Order affirmed in part and reversed in part. Case remanded for further

proceedings consistent with this opinion. Jurisdiction relinquished.




DATE: 4/10/2026




                                    - 48 -