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 ...