Sample Motion In Limine

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					Sample Motion In Limine

Identification No. 28569
924 Cherry Street, Fifth Floor
Philadelphia, PA 19107
(215)925-4400 ........Attorney for Darryl XXXXXX

                                                      COURT OF COMMON PLEAS
         COMMONWEALTH OF                              CRIMINAL HOMICIDE DIVISION
          PENNSYLVANIA                                C.P. 94-6-4343-4346
               VS.                                    CHARGES: MURDER, ETC.
          DARRYL XXXXXX                               TRIAL: NOVEMBER 2, [year]

                            DEFENDANT'S MOTIONS IN LIMINE
       Darryl XXXXXX, by his counsel Jules Epstein, moves for a pre-trial evidentiary ruling on
various issues likely to arise in the instant trial.

                                      Factual Background:
       On April 30, [year], the deceased, Damon R, was shot inside of a Chinese food store
(take-out restaurant) near 7th and Jefferson Streets in Philadelphia. On that night, various
witnesses gave varying descriptions of the perpetrator.

        During the ensuing police investigation, one or more witnesses informed police that R was
shot by ``Jeff,'' ``Wink,'' and/or others to revenge the shooting death (several months before) of a
man named Andrew R (a.k.a. ``Shaka''). [The discovery material in the Andrew R homicide
establishes the presence of ``Jeff'' standing next to or near ``Shaka'' when Shaka was shot. Other
discovery from that investigation has some of the witnesses identifying Damon R as one of the
persons involved in the shooting.]

         Further police investigation discovered that petitioner, Darryl XXXXXX, had been robbed
just a few days before the R shooting. The robbery was committed by Omar A. When petitioner

Copyright 2000, Matthew Bender & Company, Inc. All rights reserved
chased A, a second man shot a gun at petitioner to interfere with the pursuit. Police caught A,
but the second man got away. When interviewed by the detective, petitioner described the
shooter as A's ``brother.'' Police later concluded that this ``brother'' was Damon R.

        Police placed petitioner's photograph in a photo array - three witnesses identified him as
the shooter. The photograph of petitioner was not shown to several other witnesses, including
the person who told of ``Jeff's'' involvement.

       Petitioner's defense emphasizes two discrete but inter-related points: there is ample
evidence of mis-identification; and there is ample evidence that ``Jeff'' and his associates
committed the murder, deliberately to retaliate for ``Shaka's'' killing by Damon.

       1. Petitioner seeks to present evidence of good reputation, limited to the trait of being a
non-violent person. Petitioner has one conviction for a narcotics offense (C.P. 94-06-0216. The
conviction in that case post-dated the murder of Damon R.

       Petitioner avers that there should be no impeachment of character witnesses with the drug
conviction for the following reasons:

        a) the only trait relevant to the crime of homicide is a person's reputation for being
non-violent. See, e.g., Commonwealth v. Lemanski, Pa. Super., 529 A.2d 1085 (1987); Packel &

       b) reputation evidence focuses on a person's reputation at or near the time of the crime.
Brown, Pennsylvania Evidence, A Handbook, 1949, Chap. V., p. 101; Commonwealth v. White,
271 Pa. 584 (1922).

        c) evidence of a drug conviction is irrelevant to the trait at issue, i.e., the trait of
non-violence. Rebuttal evidence ``'must be restricted to the character trait[] raised by the accused
… ' '' Commonwealth v. Patosky, Pa. Super., quoting Packel & Poulin, Pennsylvania Evidence
(1987), § 404.2 Character Evidence at 141, 149-150.

        d) the proper method for rebutting evidence of good reputation is to use evidence of bad
reputation. Commonwealth v. Patosky, Pa. Super., 656 A.2d 499, 504-505 (1995).

Accordingly, there should be no impeachment of character witnesses with petitioner's
post-homicide conviction.20
Footnote 20 { Separately, the prejudicial impact of such a question outweighs any probative value it might have.


Copyright 2000, Matthew Bender & Company, Inc. All rights reserved
        2. Evidence of the robbery by A and the subsequent shooting by his ``brother'' should be
excluded (unless petitioner testifies), as there is no competent, non-hearsay evidence to establish
that the ``brother'' is the deceased.

        3. If evidence of the robbery of petitioner is admitted, petitioner moves in limine to bar
reference to the fact that he gave the name of Eric White when questioned by the police. This
alias, which petitioner had used on a prior arrest, has no relevance to the case at hand and is
suggestive of unrelated criminal activity.

       4. Petitioner was identified from an array of police ``mugshots.'' Petitioner objects to any
reference, direct or indirect, to the photographs being ``mugshots'', ``police photographs,''
``photographs in police possession,'' or any similar phrase. Petitioner moves that the only
reference be to an array that police gathered, with photographs from various sources, showing
head and shoulder views of various men.

        5. The Commonwealth also seeks to prove that petitioner shot R in retaliation for, or as
part of, a drug war. To support this thesis, the Commonwealth has two witnesses: a police officer
who observed petitioner sell drugs at one time near 5th and Thompson, and Eduardo R. R has
given several statements to police. Only in a statement given on October 27 of [year] did he make
this averment. R's averment may be summarized as follows:

              R sold drugs for Damon. Damon sold at 5th & Thompson. About 4-5 months
before the murder, petitioner began selling there.

               They argued most every day about who would sell at Randolph & Thompson.
They had a fistfight one day and Damon beat him up. About two months before he got killed,
Damon stopped selling there. He went somewhere else and I sold for somebody at 7th and
Columbia. A couple of times after Damon left the corner he told me that he robbed Darryl and
took money and drugs.

       The above summarized testimony is inadmissible for the following reasons:

               a) the dispute between the two men regarding sole proprietorship of the corner,
       even if the testimony is truthful, is too remote to provide a motive for murder;

               b) the testimony refutes a motive, as it establishes that Damon left the corner; and

                c) the testimony about Damon robbing petitioner is hearsay and therefore
inadmissible. Finally, petitioner objects to police testimony regarding an alleged drug sale in May
at that corner. That is evidence of other crimes; separately, those charges were dismissed at a
preliminary hearing.

       6. Petitioner moves in limine to preclude Eduardo R from saying he knew petitioner from

Copyright 2000, Matthew Bender & Company, Inc. All rights reserved
petitioner selling drugs. This is evidence of unrelated criminal activity, with no evidential value;
the prejudicial value of such testimony clearly outweighs any possible relevance it might have.

        7. Petitioner may call Robyn Vidale, the witness who heard Jeff say he had a gun and who
saw Jeff run from the crime scene with a gun in his hand. Ms. Vidale is a juvenile currently being
detained at the Youth Study Center on open charges involving a sex offense. Petitioner has no
objection to mention being made of her status as a person facing charges, as this is clearly relevant
to establishing bias; however, petitioner moves to preclude mention of the nature of the charges
faced, as this is prejudicial with no probative value to the case whatsoever.

                                                         Respectfully submitted,

                                                         Jules Epstein
                                                         Attorney #28569
                                                         KAIRYS, RUDOVSKY,
                                                          KALMAN & EPSTEIN
                                                         924 Cherry Street, 5th floor
                                                         Philadelphia, Pa. 19107
                                                         (215) 925-4400
                                                         Counsel for Darryl XXXXXX

Copyright 2000, Matthew Bender & Company, Inc. All rights reserved

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