August 30, 2013
COMMONWEALTH OF PENNSYLVANIA Appellee
JACOB MATTHEW CHRISTINE Appellant
Appeal from the Judgment of Sentence November 24, 2010 In the Court of Common Pleas of Northampton County Criminal Division at No(s): CP-48-CR-0003344-2009
BEFORE: STEVENS, P.J., [*] FORD ELLIOTT, P.J.E., BOWES, J., GANTMAN, J., PANELLA, J., SHOGAN, J., LAZARUS, J., MUNDY, J., and OTT, J.
OPINION IN SUPPORT OF REVERSAL
Although I agree that the trial court properly precluded cross examination questioning of the victim, Thomas Missero, regarding his simple assault conviction, I write separately to express my view that the conviction was not relevant because the conviction and underlying conduct occurred subsequent to the prison incident. Furthermore, I cannot agree that the trial court properly allowed the shank found in Christine's bed into evidence, where there was no dispute that a razor blade was used in the incident and there was evidence that razors were readily available in the prison.
In Commonwealth v. Amos, 284 A.2d 748 (Pa. 1971), the Pennsylvania Supreme Court held that when self-defense is properly at issue, the victim's record is admissible "either (1) to corroborate [the defendant's] alleged knowledge of the victim's quarrelsome and violent character to show that the defendant reasonably believed that his life was in danger; or (2) to prove the allegedly violent propensities of the victim to show that the victim was in fact the aggressor." Id. at 751 (footnote omitted). However, whereas Amos involved evidence of the decedent's prior aggressive behavior, at issue in this case is the victim's, Missero's, subsequent simple assault conviction for post-incident conduct.
I am of the view that a subsequent conviction for post–incident conduct that is offered to prove the character of a victim is irrelevant, since the conviction does not establish either of the two grounds set forth in Amos, supra.
As discussed, Missero's June 24, 2010 simple assault conviction resulted from an incident, occurring on May 1, 2010, in which Missero grabbed and pushed his girlfriend outside of a hotel, and she sustained minor injuries. Since the conviction and underlying offense occurred after the June 8, 2009 prison incident, there would be no basis for Christine to have knowledge of Missero's aggressive behavior. Moreover, Missero's conviction does not show a propensity for violence on June 8, 2009, because Missero's May 1, 2010 conduct was a future event.
In my view, the only relevant time period for purposes of proving a victim's, in this case, Missero's, character is the time period up until the occurrence of the confrontation. Therefore, I would affirm the trial court's ruling on the basis that Missero's subsequent conviction for an event that transpired after the prison incident should not be used "to retroactively establish [his] character" at the time of the incident. Trial Court Opinion, 4/26/2011, at 13.
Turning to the second issue, Christine's claim that the trial court improperly allowed introduction of the shank into evidence, I note that Pennsylvania Rule of Evidence 401 defines "relevant evidence" as that which has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Pa.R.E. 401. "Evidence that is not relevant is not admissible." Pa.R.E. 402. It merits emphasis that in this case the Commonwealth conceded that the shank was not the weapon used to injure Missero.
In Commonwealth v. Robinson, 721 A.2d 344 (Pa. 1998), cert. denied, 528 U.S. 1082 (2000), the Pennsylvania Supreme Court addressed the issue of the admissibility of a weapon that is not the weapon used in the crime, explaining:
The general rule is that where a weapon cannot be specifically linked to a crime, such weapon is not admissible as evidence. However, there is an exception to this general rule where the accused had a weapon or implement suitable to the commission of the crime charged. [This weapon] is always a proper ingredient of the case for the prosecution.
Id., 721 A.2d at 351 (quotations and citations omitted). The Robinson Court determined that the exception allowing the admission of a weapon of the accused "suitable to the commission of the crime charged" did not apply where the admitted evidence consisted of photographs of the defendant holding a gun that "in no way was implicated as the possible murder weapon." Id. at 351. Robinson also found that a .44 caliber revolver was not relevant, as the murder weapon was a 9 millimeter gun. Id. at 352.
Later, in Commonwealth v. Marshall, 743 A.2d 489 (Pa. Super. 1999), appeal denied, 757 A.2d 930 (Pa. 2000), a panel of this Court considered the admissibility of a weapon that had been in police custody at the time of the crime, and could not have been the weapon the defendant used in the crime. The Marshall Court stated: "Herein, appellant's gun was possessed by the police at the time of the homicide. Therefore, it was not relevant to show that appellant possessed the means to commit the murder. Moreover, the gun was clearly prejudicial since it was the same caliber as the murder weapon." Id., 743 A.2d at 493.
In the present case, the shank introduced into evidence at trial was a "large metal object … with a sharp point and a handle wrapped around it, which [was] a piece of cloth[.]" N.T., 10/6/2010, at 38. It was approximately "18 to 20 inches" long. Id. However, both Christine and Missero testified that the weapon involved in the confrontation was a razor blade. Missero testified that when he realized he was cut, he saw "a modified razor blade laying on the ground covered in blood." N.T., 10/5/2010 at 63–64. He described the weapon that caused his injuries as "a razor made out of like a  normal Bic Razor that you get from the [D]ollar [S]tore, they issue them in prison. The blade was taken out, and at the end it had paper or tape wrapped around it with the blade sticking out maybe an inch." Id. at 64. "[T]he taped part was about 2 inches." Id. Christine, in his defense, also claimed the weapon was a razor blade, stating that Missero had attacked him with "a very small razorblade, typical razorblade you find and something you shave your face with, about … an inch long." N.T., 10/6/2010, at 48.
Guided by Robinson and Marshall, I am of the view that the shank should not have been admitted into evidence. Here, there was no dispute that the shank was not the weapon used in the fight. Further, there was testimony in this case that razor blades were readily available to inmates at the prison. Moreover, the shank did not corroborate or rebut any testimony. While the trial court opined that the presence of a shank in Christine's bed "tends to rebut [Christine's] assertion that he was unarmed and acted in self-defense, " I cannot agree that Christine's self-defense claim is rebutted by the fact that a different weapon was found in his bed. Therefore, I would find merit in Christine's claim that the trial court erred in admitting the shank into evidence.
The question remains, then, whether the erroneously admitted evidence constituted harmless error. An error will be deemed harmless where the appellate court concludes beyond a reasonable doubt that the error could not have contributed to the verdict. Commonwealth v. Story, 383 A.2d 155, 164 (Pa. 1978).
Harmless error exists where: (1) the error did not prejudice the defendant or the prejudice was de minimis; (2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.
Robinson, supra, at 721 A.2d at 350 (citations omitted).
Review of the trial testimony reveals the following accounts of the incident. Missero testified that on June 8, 2009, he had only been in the prison unit for 30 to 45 minutes, following one and one-half days in the intake unit. He had finished eating dinner with inmate Jeffrey Rice, when another inmate, Luis Vega, motioned Missero to come over to him. Missero was assigned to Cell 5, and Vega was standing in front of Cell 3, which was Christine's cell. After Missero approached him, Vega asked Missero if he had any tobacco. Before Missero could answer, he testified Christine came from behind the doorway of Cell 3, and pulled him into the cell by grabbing his shirt. Christine started hitting him and yelling, "[Yo]u owe me $20." When Christine eventually stopped, Missero saw blood on his shoe, and inmates were telling him he had "to go to medical" because his neck was "wide open." While Christine was punching him, Vega "closed the [cell] door and blocked the view of the officer." Afterward, Missero noticed a razor blade covered in blood laying on the ground. Missero stated he did not know Christine. He testified he did not have a razor blade on him. He stated the prison issued razors, but he had not been issued a razor. After Missero was cut, Christine told Missero to give him his sneakers. Missero refused, and walked to the corrections officer, who summoned help. See N.T., 10/5/2010, at 57–68.
According to Christine, he was reading in his cell when Missero entered the cell to talk to Christine's cellmate, Luis Vega, about tobacco. When Missero saw Christine, Missero ran towards Christine and threw a hot cup of coffee at him, but missed, and they engaged in a fight. Christine noticed Missero had a razor blade, and he took a swipe at Christine, missing him. Christine kicked Missero, who fell and dropped the razor blade. Christine picked up the razor blade from the ground, and unintentionally cut Missero when Missero continued to threaten him. Christine testified that he knew Missero from past occasions. Christine testified that Missero said, "I told you I was going to kill you." He stated Missero "probably tried to put a big scar on my face, [but] he missed." Christine denied telling Missero that Missero owed him $20.00. Christine did not have any scars on his face. He stated no one was in his cell to ask for help and that Luis Vega let the door close and walked away. See N.T., 10/6/2010, at 45–53, 59.
Daniel Rice, an inmate, and brother of Jeffrey Rice, testified that he saw Missero walk over to talk to someone in front of Christine's cell, but he was "not sure" if Missero "did or did not have anything in his hand at that time." Id. at 15. When Rice opened the cell door, which was closed, he observed Christine and Missero in a wrestling hold. The fight ended, and Christine was "standing there … pumped, irritated[.]" Missero was bleeding from his neck, and Rice questioned Christine, who replied that Missero owed him $20.00. Rice testified Christine then demanded Missero's sneakers, and Rice told Missero to go get medical attention. Rice stated that after the fight, Missero had nothing in his hand except a little ball of tobacco, which Missero offered to Rice if he beat up Christine. Rice could not be completely sure if he saw something in Christine's hand because he has astigmatism. He did not see a weapon on the ground. Razor blades were issued and sold by the prison, and it was possible to flush a razor blade down the toilet in the prison. See id. at 17–20.
Corrections Officer Nathan Picone testified that he did not witness the fight, or hear a scuffle while he was positioned in the prison unit at the officer's station. After Missero approached him with a large gash in his neck, he called for back-up and proceeded to lock down the block. He noticed blood leading to Christine's cell, and saw bloody towels and bloody T-shirts that "looked like … an attempt to clean up what looked to be a large amount of blood." Christine was "obviously shaken, a little nervous [with] a couple of drops of blood on his T-shirt." A search of Christine's cell revealed a shank hidden in Christine's bed. He did not notice any coffee on the floor. There were "40 to 50 cups in the cell." See id. at 34–42.
Besides Christine, the defense presented Matthew Garvey, a juvenile probation officer, who testified that Christine and Missero were housed in the same treatment facility from July of 2004 to January 2005. The facility had two separate housing units, and he did not possess the record to determine "if a specific client was in a unit at a certain time, within a certain timeframe." Id. at 73. Christopher Boase, a fellow inmate, also testified for the defense. He stated that he was watching television in the day room outside the pod, and did not see the altercation, but he had seen Missero enter the cell and "he looked like angry, like hostile." Id. at 75–76.
This case clearly rested on determinations of credibility by the jury. Here, there were no eyewitnesses who testified regarding the onset of the confrontation, other than Missero and Christine. The prejudicial impact of the erroneously admitted shank is obvious given that the issue before the jury was which party was the aggressor. In my view, this was not a case where "the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict." Story, supra. Therefore, I would find that the trial court's ruling, which allowed the shank to be admitted into evidence, was not harmless error. See Marshall, supra at 494 ("[W]e are not faced with a record containing overwhelming evidence of appellant's guilt. We find that the error committed by the lower court was not harmless.").
Accordingly, I would vacate the judgment of sentence and remand for a new trial.