[J-77-2014] [MO:Eakin, J.] IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

**COMMONWEALTH OF PENNSYLVANIA, Appellee** 

**v.**

**JACOB MATTHEW CHRISTINE, Appellant**  **: :**  **: :**  **: :**  **: :**  **: :**  **: No. 8 MAP 2014**  **Appeal from the Order of the Superior Court dated August 30, 2013 at No. 1893**  **EDA 2011 affirming the Judgment of Sentence of the Court of Common Pleas**  **of Northampton County, Criminal Division, dated November 24, 2010 at No. CP-48-**  **CR-0003344-2009 ARGUED: September 9, 2014** 

CONCURRING OPINION

MADAME JUSTICE TODD DECIDED: October 27, 2015 **I join the majority in affirming the Superior Court ’s holding that the trial court did**  **not abuse its discretion in admitting into evidence the shank found in Appellant’s cell for**  **the purpose of rebutting Appellant’s claim that he wa s unarmed and acted in self**  **defense. I also agree that the trial court properly de nied Appellant’s motion**  in limine **to question the victim regarding his conviction for simple a**  **ssault which occurred after his jailhouse altercation with Appellant; I write separate**  **ly, however, because my reasoning on this second issue differs from that of the majority.**  **As noted by the majority, Appellant was charged with,** inter alia **, aggravated assault based on a jailhouse altercation involving the**  **victim in June 2009, during which the victim allegedly threw hot coffee onto Appellant**  **and punched Appellant several times. Appellant filed a pretrial motion seeking to**  **introduce evidence that the victim was convicted of simple assault based on an incident of domesti**  **c violence between the victim and his girlfriend which occurred subsequent to th**  **e victim’s release from prison, [J-77-2014] [MO: Eakin, J.] - 2** 

**approximately 11 months after the jailhouse altercatio n involving Appellant. Appellant**  **argued that the victim’s simple assault conviction was rele vant to Appellant’s self** 

**defense claim because it demonstrated the victim’s violen t propensities and suggested**  **the victim was the initial aggressor. In denying Appellant’s motion to introduce evidence**  **of the victim’s simple assault conviction, the trial court first noted that, pursuant t**  **o Pa.R.E. 404(b)(1), evidence of other crimes generally is inadmissible to prove the charact**  **er of a person in order to show conformity therewith. Trial Court Opinion, 4/26**  **/11, at 12. The trial court acknowledged that this Court has held that a defendant**  **who alleges self-defense may**

**use a deceased victim’s criminal record either to corrobora te his alleged knowledge of**  **the victim’s quarrelsome and violent character to show th e defendant reasonably**  **believed his life was in danger; or to prove the alle gedly violent propensities of the**  **victim to show the victim was the aggressor. See Commonw ealth v. Amos, 284 A.2d**  **748 (Pa. 1971); Commonwealth v. Beck, 402 A.2d 1371 ( Pa. 1979). However, the trial**  **court distinguished those cases on the basis that, unlike the present altercation, they** 

**involved a deceased victim. The trial court concluded that Appellant was attempting “to**  **use future events to retroactively establish [the victim’ s] character,” and opined:** 

**the law only allows evidence of prior incidents to prove the**  **character or reputation of the victim at the time of t he crime**  **in question. A subsequent conviction arising from event s**  **that transpired after the incident involving [Appella nt] simply**  **has no bearing on whether [the victim] possessed violent propensities on June 8, 2009.**  **Id. at 13. On appeal, the Opinion in Support of Affirmance (“OI**  **SA”) below recognized the principle expressed in Amos that a defendant alleging se**  **lf-defense may use a deceased victim’s criminal record to prove the alleged violent p**  **ropensities of the victim to show that the victim was the aggressor, and further recognize**  **d that, to be admissible, the [J-77-2014] [MO: Eakin, J.] - 3** 

**victim’s crimes must be “similar in nature and not too di stant in time” from the underlying**  **incident. Commonwealth v. Christine, 78 A.3d 1, 5 (P a. Super. 2013) (OISA) (citing**  **Commonwealth v. Mouzon, 53 A.3d 738, 741 (Pa. 2012) ). However, without**  **acknowledging, as the trial court did, that Amos was disti nguishable because the victim**  **in the instant case is not deceased, the OISA concluded th e trial court in the instant**  **case properly excluded evidence of the victim’s simple assa ult conviction because the**  **offense was not “similar in nature” to the jailhouse al tercation during which the victim**  **threw hot coffee onto and punched Appellant. Christin e, 78 A.3d at 5 (OISA).**  **Although the Opinion in Support of Reversal (“OISR”) below also concluded the**  **trial court properly precluded introduction of the vict im’s conviction for simple assault, it**  **did so based on its belief that the victim’s simple assau lt conviction did not show a**  **propensity for violence on June 8, 2009, because the co nduct underlying the conviction**  **was then a future event. Thus, the OISR would have a ffirmed the trial court’s ruling**  **because the victim’s “subsequent conviction for an event th at transpired after the prison**  **incident should not be used ‘to retroactively establish [ his] character’ at the time of the**  **incident.” Christine, 78 A.3d at 11-12 (OISR) (citati on omitted).**  **The majority concludes that “the Superior Court did no t err in determining the trial**  **court acted within its discretion by excluding [the victim ’s] subsequent simple-assault**  **conviction,” but declines to “endorse the claim that a sub sequent conviction can**  never **be probative and admissible.” Majority Opinion at 8 (emphasis original). The majority**  **further opines: “Proximity in time is a factor, as is si milarity of facts. Here we have 11**  **months between events, but a strikingly disparate factua l scenario.” Id. The majority**  **proceeds to affirm the trial court based on this factua l disparity.**  **While I agree with the majority that the Superior C ourt did not err in affirming the**  **trial court’s holding, I disagree with its premise. Ind eed, there is no case law supporting** **[J-77-2014] [MO: Eakin, J.] - 4**

**introduction of evidence of a victim’s** subsequent **conviction to demonstrate the victim’s character for purposes of proving the victim was the agg**  **ressor. Both Amos and Beck involved evidence of a deceased victim’s aggressive behav**  **ior which occurred** prior **to their fatal altercations, and this Court has continued**  **to limit introduction of evidence of a**

**victim’s convictions to those which occurred** prior **to the incident in which the victim is alleged to have been the aggressor:** 

**[A]s an evidentiary matter, this Court has held that w hen**  **self-defense is properly at issue, evidence of the victim’s** prior **convictions involving aggression may be admitted, if probative, either (1) to corroborate the defendant’s**  **alleged knowledge of the victim’s violent character, to prove th**  **at the defendant was in reasonable fear of danger, or (2) as**  **character/propensity evidence, as indirect evidence that the**  **victim was in fact the aggressor. Mouzon, 53 A.3d at 741 (emphasis added).**  **Thus, I would hold that the trial court properly pre cluded Appellant from**  **introducing evidence of the victim’s** subsequent **simple assault conviction to support Appellant’s claim of self-defense pursuant to Rule 404(**  **b)(1), and would not engage in**

**an analysis of whether the facts underlying the two alterca**  **tions were sufficiently similar**

**in nature.**