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 AFFIRMANCE
Appellant, Jacob Matthew Christine, appeals from the November 24, 2010 aggregate judgment of sentence of nine to 20 years' imprisonment imposed after a jury found him guilty of aggravated assault and recklessly endangering another person (REAP). After careful review, we would affirm.
The trial court summarized the underlying facts of this case as follows.
The convictions resulted from an incident that occurred in Northhampton County Prison (NCP) on June 8, 2009. On that date, [Appellant] and the victim, Thomas Missero, were inmates in NCP when a confrontation between the two men occurred in [Appellantj's cell in Unit B-2. The cell housed 8 inmates in four rows of bunk beds. While in [Appellant's cell, [Appellant] was alleged to have slashed Mr. Missero's neck and ear with a razor blade. Immediately after the attack, corrections officers searched [Appellantj's cell. Only one weapon, a shank, was found in the cell. It was hidden within [Appellantj's bed.
Interestingly, [Appellant] testified at trial that the victim came into his cell armed with a razor blade and attacked [Appellant]. [Appellant] claimed that he successfully disarmed the victim, picked up the razor from the floor and then unintentionally sliced the victim when the victim continued to threaten [Appellant]. Even though [Appellant] was the last person to have control of the weapon, it has never been located. [The trial court] also note[d] that there were no injuries suffered by [Appellant].
Trial Court Opinion, 4/26/11, at 1-2.
On July 14, 2009, the Commonwealth charged Appellant with attempted criminal homicide, aggravated assault and REAP. Appellant proceeded to a three-day jury trial. On October 7, 2010, the jury found Appellant guilty of aggravated assault and REAP, but found him not guilty of attempted criminal homicide. On November 24, 2010, the trial court imposed an aggregate sentence of nine to 20 years' imprisonment. On December 6, 2010, Appellant filed a timely post-sentence motion.Appellant's post-sentence motion was denied on April 26, 2011. On May 5, 2011, Appellant filed a timely notice of appeal.
On April 24, 2012, a divided panel of this Court vacated Appellant's judgment of sentence and remanded the case for a new trial, concluding that the trial court abused its discretion in not permitting Appellant to introduce evidence of Missero's subsequent criminal convictions. On May 21, 2012, the Commonwealth filed a petition for reargument en banc. This Court granted the Commonwealth's petition on July 10, 2012, and the previous panel memorandum was withdrawn.
In his substituted brief on reargument, Appellant raises three issues for our review.
1. Did the trial court abuse its discretion when it refused to allow Appellant to present testimony at trial regarding a criminal assault in the alleged victim's criminal record?
2. Did the trial court abuse its discretion when it permitted the Commonwealth to introduce a "shank" as physical evidence as well as testimony regarding said shank in the course of the jury trial in the instant matter?
3. Was the sentence imposed contrary to the norms which underlie the sentencing process and does this case involve circumstances where the application of the sentencing guidelines was clearly unreasonable?
Appellant's Brief at 4.
In Appellant's first two issues on appeal, he challenges the trial court's rulings regarding the admission of evidence at trial. We begin by noting our well-settled standard of review over such matters.
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. We reaffirm our confidence in our trial judges to oversee the presentation of evidence so that overtly passionate, intentionally biased and inflammatory material is kept out of the courtroom. We will reverse a trial court's decision as to admissibility of evidence only if [Appellant] sustains the heavy burden to show that the trial court has abused its discretion.
Commonwealth v. Bryant, 67 A.3d 716, 726, (Pa. 2013) (citations and internal quotation marks omitted).
First, Appellant avers that the trial court erred in precluding him from "questioning Missero regarding [a] simple assault charge" which "Missero had plead [sic] guilty to, and was sentenced for." Appellant's Brief at 9. Appellant further argues that "[t]his cross examination would have substantially proven the 'alleged violent propensities of the victim to show that the victim was in fact the aggressor." Id. at 10-11, quoting Commonwealth v. Carbone, 707 A.2d 1145, 1154 (Pa. Super. 1998), appeal discontinued, 727 A.2d 1116 (Pa. 1998). The Commonwealth counters, and the trial court concluded, that "[a] subsequent act of violence cannot be considered an indicator of someone's propensity for violence in the past." Commonwealth's Brief at 16; see also Trial Court Opinion, 4/26/11, at 13 (stating, "[a] subsequent conviction arising from events that transpired after the incident involving [Appellant] simply has no bearing on whether Misero [sic] possessed violent propensities on June 8, 2009") (footnote omitted).
Our Supreme Court has held that "as far back as 1884, [Pennsylvania courts have] permitted the introduction of character evidence to prove the decedent's violent propensities, where self-defense is asserted and where there is an issue as to who was the aggressor." Commonwealth v. Dillon, 598 A.2d 963, 965 (Pa. 1991), citing Alexander v. Commonwealth, 105 Pa. 1, 9 (1884). Further, our Supreme Court has specifically held that the victim's criminal record can be admissible on two distinct grounds.
(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.
Nor do we mean to suggest that our decision here abandons the rule ennunciated [sic] in [Abernethy v. Commonwealth, 101 Pa. 322 (1882)] that the defendant must first establish a foundation of his knowledge of the victim's convictions before he can introduce the corroboratory record when the defendant is seeking to prove his belief that he was in imminent danger of bodily harm. Here again, the determination whether or not the defendant demonstrates a sufficiently particular knowledge of the victim's record rests within the sound discretion of the trial court.
Commonwealth v. Amos, 284 A.2d 748, 303, 305 (Pa. 1971). We highlight that our Supreme Court held that a defendant must lay a foundation for his knowledge of the victim's convictions only when he "is seeking to prove his belief that he was in imminent danger of bodily harm." Id. at 305. It therefore logically follows that a defendant need not establish knowledge of the victim's record in order "to prove the allegedly violent propensities of the victim to show that the victim was in fact the aggressor." Id. at 303. In every case, the defendant is also required to show that the convictions sought to be introduced "are similar in nature and not too distant in time" from the underlying incident. Commonwealth v. Mouzon, 53 A.3d 738, 741 (Pa. 2012). Because Appellant wished to use Missero's subsequent conviction to establish the second Amos ground as opposed to the first, Appellant was not required to show specific knowledge of the conviction. See Amos, supra at 303, 305.
Applying Amos to the case sub judice, we conclude the trial court did not abuse its discretion. The facts stemming from Missero's subsequent conviction were as follows.
[Defense Counsel]: May 1st of 2010, Nazareth Police were called to the American Hotel in Nazareth for a report of an assault. Thomas Missero was outside and his girlfriend was there, Melissa Miller. She claimed that [Missero] had grabbed her and pushed her. She had minor damage to her ear as a result of falling, I guess, from the push, and that he had threatened her.
NT., 10/5/10, at 27. As a result, Missero pled guilty to simple assault and REAP. Id. at 27-28. The trial court concluded that Missero's subsequent convictions "[do not] really demonstrate violent propensities." Id. at 29. We agree. In our view, this offense is not "similar in nature" to the events that Appellant alleged transpired on June 8, 2009. Mouzon, supra; see also NT., 10/6/10, at 45-47 (stating that Missero threw a hot cup of coffee on Appellant and punched him multiple times). As a result, we conclude that the trial court did not abuse its discretion in excluding evidence regarding Missero's subsequent convictions. See Bryant, supra. As a result, Appellant's first claim fails.
In his second issue, Appellant avers that the trial court abused its discretion in denying his motion in limine to preclude the Commonwealth from introducing the shank found in Appellant's bed and testimony regarding it. Appellant's Brief at 13. Appellant argues that the shank should have been excluded given the Commonwealth's concession that the shank was not the weapon used in the underlying incident. Id. The Commonwealth counters that the shank was relevant to show "that ...