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Commonwealth v. Hecker

Superior Court of Pennsylvania

December 28, 2016


         Appeal from the Judgment of Sentence October 13, 2015 In the Court of Common Pleas of Centre County Criminal Division at No(s): CP-14-CR-0000100-2015

          BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and STEVENS, P.J.E. [*]


          STEVENS, P.J.E.

         Christopher Ross Hecker ("Appellant") appeals from the judgment of sentence entered in the Court of Common Pleas of Centre County after a jury convicted him of Aggravated Harassment by Prisoner, 18 Pa.C.S.A. § 2703.1, for spitting a mouthful of water on a corrections officer. Sentenced to one to two years' incarceration, Appellant contends there was insufficient evidence that the fluid he spat brought the corrections officer in contact with saliva as required under the statute, and he challenges evidentiary rulings of the court. We affirm.

         On December 8, 2014, Appellant was an inmate housed in a suicide watch cell at the Centre County Correctional Facility. Corrections Officer Ryan Miller attempted to serve Appellant his meal by placing it on the "food pass" shelf extending out from an opening in the cell door, but Appellant picked the food up and threw it back at Miller. N.T. at 8/31/15 at 23, 37. Given Appellant's response, Miller attempted to close the food pass door, but Appellant placed his arm in the way, so Miller opened the door enough to allow Appellant to withdraw his arm before Miller closed the door again and locked it. Id.

         Appellant began to fill his mouth with water and spit it through a one-half inch opening running along the entire height of the cell door between the door and the jamb. N.T. at 24. The opening was large enough to see through to the other side of the door. Id. On various prior occasions, Appellant had spat and urinated through this opening in efforts to harass correction officers. N.T. 24-29. On this occasion, as verified by security cameras, Appellant repeatedly took water from his sink, spat water through the opening for the next twelve minutes, even as Officer Miller attempted to block it with a bed sheet. N.T. at 30.

         According to Miller, the first time he approached with the sheet, Appellant spat on his right knee, saturating his pants all the way down to his boot. N.T. at 31. Miller held the sheet over the opening after that until a fellow officer successfully turned off the water supply to the sink in Appellant's cell.

         Pennsylvania State Trooper Elizabeth Rita Clatch testified that she was called to the prison and interviewed CO Miller about the episode. N.T. at 56. She collected both the pair of pants and the sheet that Appellant spat upon and took them to the evidence room of her barracks, where she hung them to dry overnight. Id. No testing was performed on the items, however, because the District Attorney's Office did not request testing. N.T. at 57. On cross-examination, Trooper Clatch verified a State Police laboratory in Harrisburg can test for the presence of saliva. N.T. at 67-68.

         In summations, counsel for Appellant emphasized that the Commonwealth elected not to perform laboratory testing on CO Miller's pants because it believed the test would fail to detect saliva:

DEFENSE COUNSEL: The most important evidence you could have in this case [is] that there was indeed saliva in that tap water that was continually being spat for 12 minutes before the CO was hit[; there] has to be the saliva in it. The Judge will give you that instruction.
That's what aggravated harassment is, not spitting on somebody. It's spitting saliva on [somebody]. . . . If it's not that, it's not aggravated harassment. It might be something else, but that's the crime they chose to bring.
They have the burden of proof, because they get to choose what charges to bring against a person that is being tried by a jury. And they chose aggravated harassment. They say it's not the crime of the century, it's two attorneys, the trooper, all present in court to bring you this case, and they made a conscious decision not to test the evidence. What does that tell you? Tells you they didn't think there was saliva in that sample. That's why they didn't test it.

N.T. at 76-77.

         After closing arguments, the court charged the jury that to find Appellant guilty under Section 2703.1, it was required find each of three elements proven beyond a reasonable doubt: (1) Appellant was a prisoner at the time of the assault; (2) he caused CO Miller to come into contact with saliva by spitting the fluid on him; and (3) it was his conscious goal or purpose to cause CO Miller to come in contact with the fluid containing saliva, or that he was aware that it was almost certain he would cause such contact. N.T. at 96-97. The jury retired to deliberations and returned with a verdict of guilt. On October 13, 2015, the ...

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