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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.
J-A08035-18


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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J-A08035-18


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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