Com. v. Harrison, P. ( 2018 )

J-A08035-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
PATRICK HARRISON, :
:
Appellant : No. 2659 EDA 2016
Appeal from the Judgment of Sentence August 15, 2016
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010296-2013,
CP-51-CR-0010297-2013, CP-51-CR-0010308-2013
BEFORE: PANELLA, LAZARUS, and STRASSBURGER*, JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED MAY 30, 2018
Patrick Harrison (Appellant) appeals from the August 15, 2016 judgment
of sentence imposed after a jury found him guilty of several counts of simple
assault, recklessly endangering another person, and firearms violations.
Upon review, we vacate Appellant’s judgment of sentence and remand for a
new trial.
Appellant’s convictions arose from an incident that occurred on a street
in Philadelphia, Pennsylvania. On July 23, 2013, at about 9:00 p.m., Edward
Brown (Brown) was sitting in the driver’s seat of his parked vehicle, along with
his wife in the passenger seat, talking to their 17-year old son through the
passenger window. Brown heard a gunshot. Looking in his car’s mirrors and
rear window, Brown saw someone pointing a gun in the direction of Brown’s
*Retired Senior Judge assigned to the Superior Court.
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vehicle. A second gunshot followed, which shattered the rear window of
Brown’s vehicle. The gunshots did not strike any people. Brown later identified
Appellant as the shooter, and he was arrested and charged with numerous
offenses, including aggravated assault, simple assault, firearms violations,
and criminal mischief.
On April 29, 2016, a jury found Appellant guilty of three counts each of
simple assault and recklessly endangering another person, and two firearms
violations. Further, in a stipulated trial on the same day, the trial court found
Appellant guilty of an additional firearms violation. On August 15, 2016, the
trial court sentenced Appellant to an aggregate term of three and one-half to
seven years of incarceration, followed by two years of probation. Appellant
timely filed a notice of appeal, and both Appellant and the trial court complied
with Pa.R.A.P. 1925.
On appeal, Appellant sets forth one issue for our review: “Did not the
trial court err in allowing the prosecutor, over objection, to cross-examine
[Appellant] about his religious beliefs and willingness to swear on the Bible?”
Appellant’s Brief at 3 (answer omitted).
We provide the following background. At trial, Appellant testified on his
own behalf, first affirming he would testify truthfully. See Trial Court Opinion,
4/26/2017, at 17 (“[Appellant] made an affirmation to testify truthfully by
raising his right hand like every other witness during trial.”). Then, on cross-
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examination, while the prosecutor questioned Appellant about whether he
recognized Brown, the following exchange occurred:
[PROSECUTOR:] What you’re saying is when you went to another
hearing that’s when you recognized [Brown], right?
[APPELLANT:] That’s when -- yea.
[PROSECUTOR:] That’s when you realized, oh my God, that was
that guy who I saw in the police district when I got arrested?
[APPELLANT:] Well, I didn’t say because I don’t like to say, oh,
my God, I don’t like to use God’s name because he’s the judge of
us all. So I like to use a term more frequent like, oh, no, you
know, like they’re really doing this to me. That’s how I felt,
because like, you know, I got goals in my life. Like I just finished
school. I’m trying air conditioning/refrigeration, so everything
had to stop for me.
***
[PROSECUTOR:] So you don’t like to use the Lord’s name in vain?
[APPELLANT:] No, a God-fearing man.
***
[PROSECUTOR:] But you don’t know [Brown] right, never met
him before?
[APPELLANT:] No.
[PROSECUTOR:] No anger towards him or anything?
[APPELLANT:] Anger rests in the bosom of fools.[1]
N.T., 4/27/2016, at 160-62.
____________________________________________
1According to the Commonwealth, this is a quote from “Ecclesiastes 7:9 (King
James [v]ersion).” Commonwealth’s Brief at 10-11.
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Subsequently, and after an unrelated and nonreligious line of
questioning, the prosecutor raised the issue of whether Appellant swore or
would be willing to swear on the Bible:
[PROSECUTOR:] Sir, when you swore to tell the truth today, did
you put your hand on that [B]ible?
[APPELLANT:] I didn’t have to, did I?
[PROSECUTOR:] I’m asking you, did you?
[APPELLANT:] I didn’t have to, did I?
[DEFENSE COUNSEL:] Your Honor, I object [t]o the last question.
He wasn’t asked to do that. He was just asked to simply raise his
right hand, and swear to tell the truth, the whole truth and nothing
but the truth. He was not asked to put his hand on the [B]ible,
and not a single witness who has testified in this trial has been
asked to do that.
[PROSECUTOR:] That may be, Your Honor, and I missed that,
and if that’s the case, I’ll withdraw that. But I would ask if you’d
have a problem swearing, on the [B]ible that you were telling the
truth this entire time. Do you have a problem doing that?
[APPELLANT:] This is probably why you have problems, because
Jesus Christ said you’re not supposed to swear at all. Swearing is
an omen only given to God.
[PROSECTOR:] Very well said. Would you put your hand on that
[B]ible and swear that everything you said today --
[DEFENSE COUNSEL:] Objection, you’re asking this person to do
something different that every other person --
[APPELLANT:] I don’t swear at all.
THE COURT: I know counsel is asking him to do that. I suppose
he’s asking hypothetically. Counsel?
[PROSECUTOR:] Thank you.
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[DEFENSE COUNSEL:] He didn’t ask the other witnesses that
hypothetically.
THE COURT: Overruled, counsel.
[PROSECUTOR:] You can answer the question. You don’t swear
on the [B]ible, right?
[APPELLANT:] No, sir.
[DEFENSE COUNSEL:] And I once again, I object. Everybody was
asked to swear or affirm. No one comes in here --
THE COURT: Counsel, nobody talked about religion like this
witness either. So he opened the door to some of those questions.
[DEFENSE COUNSEL:] Actually the person who started talking
about this --
THE COURT: Actually, we’re not going to go too far --
[DEFENSE COUNSEL:] Was the DA.
THE COURT: I’m talking right now. And I know no one else is
talking when I talk. Now we’re not going to go too far down that
line.
[PROSECUTOR:] I’m done with that line of questioning, Judge.
N.T., 4/27/2016, at 163-65.
On appeal, Appellant argues the trial court erred in overruling the
objections to this line of questioning about swearing on the Bible. According
to Appellant, this is banned explicitly by 42 Pa.C.S. § 5902(b) and the relevant
case law. See Appellant’s Brief at 10-14. The Commonwealth responds that,
by raising his religious beliefs, Appellant opened the door to this line of
questioning, and thus it was permitted. Commonwealth’s Brief at 8-13.
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We review this claim mindful of the following. “The admission of
evidence is a matter vested within the sound discretion of the trial court, and
such a decision shall be reversed only upon a showing that the trial court
abused its discretion.” Commonwealth v. Antidormi, 84 A.3d 736, 749 (Pa.
Super. 2014). “An abuse of discretion is not merely an error of judgment, but
is rather the overriding or misapplication of the law, or the exercise of
judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-
will or partiality, as shown by the evidence of record.” Id.In Pennsylvania, all testifying witnesses must either take an oath or
affirm they will testify truthfully.2 Further, in Pennsylvania, witnesses cannot
be questioned about their religious beliefs. Section 5902(b) provides:
____________________________________________
2 42 Pa.C.S. § 5901 provides:
(a) General rule.--Every witness, before giving any testimony
shall take an oath in the usual or common form, by laying the
hand upon an open copy of the Holy Bible, or by lifting up the right
hand and pronouncing or assenting to the following words: “I, A.
B., do swear by Almighty God, the searcher of all hearts, that I
will [_____], and that as I shall answer to God at the last great
day.” Which oath so taken by persons who conscientiously refuse
to take an oath in the common form shall be deemed and taken
in law to have the same effect as an oath taken in common form.
(b) Right to affirm.--The affirmation may be administered in any
judicial proceeding instead of the oath, and shall have the same
effect and consequences, and any witness who desires to affirm
shall be permitted to do so.
42 Pa.C.S. § 5901; see also Pa.R.E. 603 (“Before testifying, a witness must
give an oath or affirmation to testify truthfully. It must be in a form designed
to impress that duty on the witness’s conscience.”).
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(b) Religious belief may not be shown.—No witness shall be
questioned, in any judicial proceeding, concerning his religious
belief; nor shall any evidence be heard upon the subject, for the
purpose of affecting either his competency or credibility.
42 Pa.C.S. § 5902(b).
This section “prohibits the use of a witness’[s] religious belief or
affiliation to bolster or impeach his credibility.” Commonwealth v. Myer, 489
A.2d 900, 905-06 (Pa. Super. 1985). “The prosecutor’s intentions
notwithstanding, questions concerning [a witness’s] religious beliefs may not
be asked[.] … This statute is firmly grounded in prohibitions against religious
persecution found in the First Amendment to the United States Constitution
and [] Art. I § 3 of the Pennsylvania Constitution[.]” Commonwealth v.
Eubanks, 512 A.2d 619, 622 (Pa. 1986). “Whether evidence [of religious
beliefs], admitted in violation of a statute, actually deprives a defendant of his
right to a fair trial must be viewed in light of the attendant circumstances.”
Commonwealth v. Mimms, 385 A.2d 334, 336 n.8 (Pa. 1978).
This Court addressed this issue in Commonwealth v. Fawcett, 443
A.2d 1172 (Pa. Super. 1982). On direct examination of a prosecution witness,
the following occurred:
DISTRICT ATTORNEY: “Do you understand the meaning of the
oath that you took when you took the stand?”
WITNESS: “Yes, sir.”
DISTRICT ATTORNEY: “Do you believe in a Supreme Being or a
God?”
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DEFENSE COUNSEL: “Your Honor, we object. I don’t see the
relevancy of this at all-”
THE COURT: “[Defense counsel], before the Supreme God strikes
you down, you better-I’ll just say that I’ll overrule your objection
and allow an exception on the record for you and allow her to state
her belief.”
DISTRICT ATTORNEY: “Do you believe in a Supreme Being or a
God?”
WITNESS: “Yes, I do.”
DISTRICT ATTORNEY: “You’re aware that you swore or affirmed
an oath to tell the truth at this time?”
WITNESS: “Yes.”
DISTRICT ATTORNEY: “Is the recollection of the incidents that
took place October 31, 1976, as you have related to the jury, the
truth?”
WITNESS: “Yes.”
Fawcett, A.2d at 1176 (internal citation omitted). Fawcett was convicted.
On appeal, the Commonwealth conceded that this line of questioning was
improper. Finding that “such questions are expressly prohibited” by section
5902(b), this Court held that the trial court erred in overruling this objection.
Id. at 1176-77. Accordingly, this Court vacated Fawcett’s judgment of
sentence and remanded for a new trial. Id. at 1177.
In this case, the Commonwealth acknowledges that “[i]t is improper to
question an accused about his religious beliefs and exploit those beliefs to
impugn his credibility.” Commonwealth’s Brief at 9. Nevertheless, the
Commonwealth maintains that its questioning was proper. We disagree.
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Appellant’s religious beliefs were irrelevant to any issue at trial and had not
been elicited during the direct examination of Appellant. Appellant had been
duly sworn in the same manner as all other witnesses at trial. Trial Court
Opinion, 4/26/2017, at 17. Nonetheless, the prosecutor, in an effort to
impeach Appellant’s credibility, repeatedly asked whether he had or was
willing to put his hand on the Bible and swear that he was telling the truth.
N.T., 4/27/2016, at 163-65. Based on the foregoing, we conclude that this
line of questioning during Appellant’s cross-examination plainly violated 42
Pa.C.S. § 5902(b), and the trial court erred in not sustaining Appellant’s
objections.
Even assuming that Appellant opened the door with his reference to God
and quote from the Bible (see Commonwealth’s Brief at 10-11, 13), Appellant
would still be entitled to relief. In Commonwealth v. Greenwood, 413 A.2d
655, 657 n.3 (Pa. 1980), our Supreme Court held that the trial court
committed reversible error by permitting testimony about religious beliefs that
was “totally irrelevant and served no useful purpose.” Rejecting the
Commonwealth’s argument that Greenwood had opened the door to these
questions on direct examination, our Supreme Court vacated Greenwood’s
judgment of sentence and ordered a new trial. Id. at 657 n.3. Thus, even if
Appellant opened the door, the testimony at issue here was irrelevant and
served no useful purpose. Accordingly, we do not find the Commonwealth’s
argument persuasive.
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Finally, we conclude that the admission of this testimony was not
harmless error. The prosecutor’s impeachment tactics, which expressly
violated a statute and have no relevance to the issues in the case, are not
harmless error. See Mimms, 385 A.2d. at 336 (footnote omitted) (“[T]he
impeachment tactics that were employed by the prosecution in violation of an
express act of legislature cannot, in the context of the present case, be
considered harmless.”).
Accordingly, we vacate Appellant’s judgment of sentence and remand
for a new trial.
Judgment of sentence vacated. Remanded for a new trial. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/30/18
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