                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Millette
Argued at Alexandria, Virginia


MATTHEW JAMES PAHNO
                                                              MEMORANDUM OPINION * BY
v.     Record No. 2308-06-4                                    JUDGE ROBERT P. FRANK
                                                                   APRIL 22, 2008
COMMONWEALTH OF VIRGINIA


                    FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                                 Joanne F. Alper, Judge

                 Peter D. Greenspun (Melinda L. VanLowe; Greenspun, Shapiro,
                 Davis & Leary, P.C., on briefs), for appellant.

                 Rosemary V. Bourne, Assistant Attorney General (Robert F.
                 McDonnell, Attorney General, on brief), for appellee.


       Matthew James Pahno, appellant, was convicted, by a jury, of first-degree murder in

violation of Code § 18.2-32. On appeal, he contends the trial court erred in: 1) admitting into

evidence a document found in appellant’s jail cell; 2) refusing to admit into evidence appellant’s

conversation with police immediately following the murder; and 3) instructing the jury that they

may consider evidence of appellant’s character. For the reasons stated, we affirm the conviction.

                                          BACKGROUND

       In July of 2005, appellant contacted his Uncle Peter because he was unhappy living with

his grandparents in South Carolina. Peter made arrangements for appellant to stay temporarily

with appellant’s Uncle Nick and Aunt Marissa in Arlington. Although Nick was out of the

country, Marissa agreed to allow appellant to stay at their house.



       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       On July 15, 2005 appellant killed Marissa in her home. After strangling her with a belt

and decapitating her, he called 911 and told them he had just killed someone. Police arrived and

took appellant into custody.

       On the way to the police station while in the police car, appellant made several statements

that were audiotaped and later transcribed. Appellant stated he was dreaming and described his

uncle as “some kind of wizard.” He said his aunt was a “devil woman” who had no respect for

her marriage. He added, “[h]is face was in my aunt’s face on the wall and then -- and then the

next thing I knew, I was on the phone . . . I think my uncle can explain some of this.” He also

said his aunt’s face was changing, and everything was “one color.” Appellant also kept

repeating the word “orange.”

       Two weeks before trial, corrections officers conducted a search of appellant’s jail cell. A

detective recovered a handwritten note containing the following:

                                              MATT

               First: I was hearing voices, and I saw demons. The demons
               attacked me on the day this happened. Some where [sic] holding
               me down and the others was trying to make me drink out some
               [sic] bottle. It might have been poison. All together it was 5
               demons.

               Second: One demon helped me strangle her and the others were
               floating around in circles. After I recieved [sic] help strangling my
               annie I herd [sic] 2 or 3 doors slam in my house. Then the lights
               was cutting off and on by themselves. Then I saw 2 heads floating
               in mid-air, and they said to do it this way and they was floating
               over the blade saw.

               Third: Rewrite this in your words and give it to your lawyer. Also
               tell him about how sorry you are, and how you love your ant [sic]
               and you wouldn’t do anything to harm your family. Say how you
               keep seeing the devil in your mind. And you can’t sleep and is
               there any way that you can convince the Judge to go to the
               Hosipital [sic] to get treatment.




                                               -2-
On the reverse was written, “Jamie 1167 Treasure Cove. Mt. Pleasant South Caroline 29464.”

The document was recovered from a plastic bin located underneath appellant’s bed. The bin also

contained appellant’s personal belongings, including “personal effects, papers, cards,

magazines.” A sheriff’s deputy testified at trial that inmates in appellant’s unit were not free to

go from room to room, and appellant did not share his room with another inmate.

       Jail records indicate that on March 14, 2006 appellant spoke with an unknown party by

telephone. During the conversation, appellant wrote down a mailing address matching the

address on the note found in appellant’ jail cell.

       At trial, appellant presented an insanity defense. Two psychologists testified that appellant

was unable to understand the difference between right and wrong at the time appellant killed his

aunt. In rebuttal, the Commonwealth called clinical psychologist Stanton E. Samenow, who

testified he spent 11½ hours interviewing appellant, and consulted various other sources before

concluding that appellant was malingering, or faking symptoms of insanity. In describing

appellant’s personal history, Dr. Samenow testified that appellant began using marijuana at age 13,

and began consuming alcohol at age 12 or 13. He explained that appellant used cocaine and LSD as

an adult. Dr. Samenow commented on appellant’s anti-social behavior, including stealing from

children at school, and spray-painting graffiti because appellant said it “gave [him] an adrenaline

rush because it was illegal.” In addition, Dr. Samenow explained that appellant once had thoughts

about killing his father. During his testimony, the Dr. Samenow referenced appellant’s criminal

records in Virginia and Arizona.

       The Commonwealth offered the following jury instruction:

               You may consider the character of the defendant when proven by
               the evidence, whether good or bad, along with the other facts and
               circumstances of the case in determining his guilt or innocence.




                                                 -3-
       Over appellant’s objection, the trial court granted the instruction and ruled:

               [A]lthough much of that evidence came out in connection with the
               issue of the background information as to whether or not the
               defendant was insane at the time of the offense, I still think it’s
               there and the jury -- it’s a proper statement of the law since there
               was evidence coming from many different areas as to the character
               of the defendant.

       The jury convicted appellant of first-degree murder, and this appeal follows.

                                           ANALYSIS

                          Admissibility of the Letter and the Audiotape

       “The admissibility of evidence is within the broad discretion of the trial court, and a

ruling will not be disturbed on appeal in the absence of an abuse of discretion.” Blain v.

Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988). However, “[b]y definition,

when the trial court makes an error of law, an abuse of discretion occurs.” Bass v.

Commonwealth, 31 Va. App. 373, 382, 523 S.E.2d 534, 539 (2000). Also, the party objecting to

the admission of the evidence has the burden of proving that the trial court erred. Dunn v.

Commonwealth, 20 Va. App. 217, 220, 456 S.E.2d 135, 136 (1995).

       Generally speaking, “[e]vidence is admissible if it is both relevant and material,” and it is

inadmissible if it fails to satisfy these criteria. Evans-Smith v. Commonwealth, 5 Va. App. 188,

196, 198, 361 S.E.2d 436, 441, 442 (1987).

               “Evidence which ‘tends to cast any light upon the subject of the
               inquiry’ is relevant.” Cash v. Commonwealth, 5 Va. App. 506,
               510, 364 S.E.2d 769, 771 (1988) (quoting McNeir v. Greer-Hale
               Chinchilla Ranch, 194 Va. 623, 629, 74 S.E.2d 165, 169 (1953)).
               Evidence which tends to prove a material fact is relevant and
               admissible, “‘unless excluded by a specific rule or policy
               consideration.’” Evans v. Commonwealth, 14 Va. App. 118, 122,
               415 S.E.2d 851, 853-54 (1992) (quoting Cash, 5 Va. App. at 510,
               364 S.E.2d at 771).

Pughsley v. Commonwealth, 33 Va. App. 640, 645, 536 S.E.2d 447, 449 (2000).



                                               -4-
        Appellant first challenges the trial court’s admitting into evidence the letter found inside

appellant’s jail cell. Appellant argues that the letter is irrelevant to the issue of appellant’s

insanity at the time of the offense since the Commonwealth did not prove that appellant actually

reviewed and understood the content of the letter before any of his mental health evaluations

took place. Essentially, appellant contends that the note had no probative value because

appellant had already met with various psychologists prior to coming into possession of the note.

The Commonwealth responds that the letter is both material and relevant to the only issue at

trial, namely, whether appellant was faking symptoms of insanity. 1 We agree with the

Commonwealth.

        The letter unquestionably instructs how to fabricate a mental illness. Furthermore, it was

found in appellant’s jail cell among his personal belongings. Although the letter was not

discovered until two weeks before trial, the Commonwealth presented evidence from which the

jury could reasonably infer that this document had been in appellant’s presence since at least

March 14, 2006 and that appellant had knowledge of its content.

        In proving its case for fabrication, the Commonwealth presented testimony of

Dr. Samenow, who interviewed appellant extensively between February 6 and April 7, 2006.

Dr. Samenow testified that during one of his interviews, appellant described seeing “demons


        1
           The Commonwealth argues that this issue is defaulted pursuant to Rule 5A:18. The
Commonwealth contends that at trial appellant objected on the ground that someone planted the
letter in appellant’s cell, while on appeal, appellant argues the letter is irrelevant to the issue of
appellant’s sanity at the time of the offense. We find appellant sufficiently preserved this issue
below by arguing the “probative value of the letter is nil . . . . ” The Commonwealth’s response
that the letter is “probative” to the issue of appellant’s sanity allowed the court to consider
whether the letter’s prejudicial nature outweighed its probative value. See Robinson v.
Commonwealth, 13 Va. App. 574, 576, 413 S.E.2d 885, 886 (1992) (“The purpose of the
contemporaneous objection rule embodied in Rule 5A:18 is to inform the trial judge of the action
complained of in order to give the judge the opportunity to consider the issue and to take timely
corrective action, if warranted, in order to avoid unnecessary appeals, reversals and mistrials.”).


                                                  -5-
with fangs” during the killing of his aunt. The letter found in appellant’s jail cell discusses

demons and how at least one demon helped strangle the aunt. During a telephone conversation

on March 14, 2006, appellant wrote the Treasure Cove address on the reverse side of the

document in question. From this, the jury could reasonably conclude that appellant came into

possession of the letter no later than March 14, 2006, long before Dr. Samenow completed his

interviews, and retained the letter until it was discovered on April 20. Moreover, the jury could

reasonably find that because appellant referred to “demons with fangs” during at least one

interview, appellant had read the letter and understood its meaning prior to Dr. Samenow

completing his evaluation. We find that the letter was relevant and material to the

Commonwealth’s theory that appellant was fabricating symptoms of insanity. Accordingly, we

find no abuse of discretion by the trial court in admitting this evidence.

          Appellant next argues that the conversation he had in the car on the way to the police

station should have been admitted to show his state of mind at the time of the murder. The

Commonwealth responds that the trial court properly excluded the statement as hearsay. In any

event, contends the Commonwealth, the trial court allowed the expert witnesses to testify about

the statement, so any error that may have occurred was harmless. We agree with the

Commonwealth that the error was harmless.

          Hearsay is “[a] statement other than one made by the declarant while testifying at

trial - offered in evidence to prove the truth of the matter asserted.” Black’s Law Dictionary 649

(5th ed. 1979). See also Brown v. Commonwealth, 25 Va. App. 171, 177, 487 S.E.2d 248, 251

(1997).

                          “Whether an extrajudicial statement is hearsay depends
                 upon the purpose for which it is offered and received into
                 evidence. If the statement is received to prove the truth [or falsity]
                 of its content, then it is hearsay and, in order to be admissible, must



                                                  -6-
               come within one of the many established exceptions to the general
               prohibition against admitting hearsay.”

Id. (quoting Hanson v. Commonwealth, 14 Va. App. 173, 187, 416 S.E.2d 14, 22 (1992)).

       Appellant did not offer the statement for the truth of its content. Indeed, he was not

trying to show his uncle was a “god or wizard” or that his aunt was a “devil woman.” Appellant

was attempting to show only that he made the bizarre and disconnected statement. The actual

content of the statement was irrelevant to the purpose for which it was being offered. Thus, the

statement itself is not hearsay and should not have been excluded on that basis.

       Although the trial court erroneously refused to admit the statement, we find the error

harmless.

       A non-constitutional error is harmless “[w]hen it plainly appears from the record and the

evidence given at the trial that the parties have had a fair trial on the merits and substantial

justice has been reached.” Code § 8.01-678. “‘[A] fair trial on the merits and substantial justice’

are not achieved if an error at trial has affected the verdict.” Lavinder v. Commonwealth, 12

Va. App. 1003, 1006, 407 S.E.2d 910, 911 (1991) (en banc). “[T]he harmless error doctrine

enables an appellate court or a trial court when considering a motion to set aside a verdict to

ignore the effect of an erroneous ruling when an error clearly has had no impact upon the verdict

or sentence in a case.” Hackney v. Commonwealth, 28 Va. App. 288, 296, 504 S.E.2d 385, 389

(1998). “An error does not affect a verdict if a reviewing court can conclude, without usurping

the jury’s fact finding function, that, had the error not occurred, the verdict would have been the

same.” Lavinder, 12 Va. App. at 1006, 407 S.E.2d at 911.

       Appellant acknowledges that the jury heard the substance of his interview with police

through the testimony of the expert witnesses. Dr. Ronald M. Boggio, a clinical psychologist

called to testify on behalf of appellant, explained that he reviewed a tape of the conversation with

appellant in the police car that was “quite confirming of the presence of psychosis.” Dr. Boggio
                                                 -7-
testified that during the conversation, appellant stated, “I haven’t had any shots . . . ” and that

appellant referred to his aunt as a “devil woman.” Dr. Boggio also testified that appellant talked

about a face changing.

         Dr. Michelle Dana Ebright, a licensed clinical psychologist, opined that appellant did not

understand the difference between right and wrong when he killed his aunt. She stated that she

relied primarily on two sources of information in reaching her opinion: appellant’s medical

history, and audiotapes and transcripts of police interrogations. She referenced specifically the

conversation in the police car and characterized it as appellant “basically talking to himself.”

She said appellant commented, “His face was in my aunt’s face” and that appellant stated his

uncle could explain what had occurred. She also noted that appellant repeated the word

“orange,” said that he was not on drugs, and referred to his aunt as the devil. Dr. Ebright

concluded that appellant was unable to organize his thoughts and nothing that he said made any

sense.

         Despite the reality that the jury heard extensive expert testimony regarding appellant’s

sanity at the time of the offense, much of which referred specifically to appellant’s conversation

in the police vehicle, appellant argues that without actually hearing the conversation, the jury

was unable to evaluate appellant’s tones and inflections during the exchange. However, the

record shows that the jury was given six separate compact discs containing appellant’s

interviews with police shortly after appellant spoke with the police in the car on July 15, 2005.

From these recordings, the jury was able to hear appellant’s voice and evaluate his intonation

soon after being taken into custody. Thus, it plainly appears from the record that the exclusion

of the tape had no impact on the jury’s verdict or the sentence, as the jury knew of the bizarre

conversation with police, heard appellant’s voice and inflections soon after the killing, and had

the opportunity to fully consider such factors in their deliberations.

                                                 -8-
                                          Jury Instruction

       “Usually, in legal parlance, where reference is made to the character of the accused,

‘character’ is used as a synonym for ‘reputation.’” Zirkle v. Commonwealth, 189 Va. 862, 871,

55 S.E.2d 24, 29 (1949). It is well established that “[t]estimony to prove the . . . character of the

defendant in a criminal prosecution must relate and be confined to proof of the opinion that the

people of the community have of him.” Byrdsong v. Commonwealth, 2 Va. App. 400, 402, 345

S.E.2d 528, 529 (1986). Equally well established is the rule that “the Commonwealth is not

permitted to introduce any testimony of the bad reputation of the accused until the accused has

put . . . his character in issue.” Zirkle, 189 Va. at 871, 55 S.E.2d at 29. “A character witness is

allowed to summarize what he has heard or not heard in the community relating to the

truthfulness or other relevant traits of an accused, although much of it may have been said by

persons less qualified to judge the defendant’s character than the witness himself.” Byrdsong, 2

Va. App. at 406, 345 S.E.2d at 531 (citing 29 Am. Jur. 2d Evidence § 345 (1967)) (emphasis

added). While the Commonwealth is permitted to rebut evidence of an accused’s reputation for

peace and good order, it is improper to place before the jury a specific act of misconduct of the

accused that has no bearing upon his general reputation in the community. Weimer v.

Commonwealth, 5 Va. App. 47, 58, 360 S.E.2d 381, 386 (1987).

       Appellant argues that the jury instruction on his character was improper because there

was no reputation character evidence introduced at trial and the instruction “invited the jury to

apply improper bad acts to imply guilt of murder.” The Commonwealth responds that because

the only issue before the jury was whether appellant was fabricating insanity, his character was

relevant and the instruction was properly given. In any event, argues the Commonwealth, even if

the instruction was improperly given, any error was harmless. We agree with the

Commonwealth that the error was harmless. While there was no evidence that satisfied the legal

                                                -9-
definition of “character,” namely, reputation evidence, there was unobjected testimony presented

during the trial that showed appellant’s propensity toward violence. Thus, with or without the

instruction on character, the Commonwealth presented a proper argument to the jury that was

supported by evidence adduced at trial.

       As a preliminary matter, we find that no evidence tended to show appellant’s reputation

in the community, and thus, no character evidence was before the jury. The instruction should

not have been given. See Hatcher v. Commonwealth, 218 Va. 811, 813-14, 241 S.E.2d 756, 758

(1978) (“Although an instruction correctly states the law, if it is not applicable to the facts and

circumstances of the case, it should not be given.”).

       If a trial judge improperly gives an instruction on character when character is not an issue

at trial, the error is not a constitutional error. See Poole v. Commonwealth, 211 Va. 262, 265-67,

176 S.E.2d 917, 919-20 (1970); see also Greer v. United States, 245 U.S. 559, 560-61 (1918)

(discussing the evidentiary rule that the prosecution cannot introduce character evidence until the

defendant has done so). Thus, the non-constitutional standard of review governs our

determination whether the error was harmless.

       As previously stated, a non-constitutional error is harmless only “[w]hen it plainly

appears from the record and the evidence given at the trial” that the error did not affect the jury’s

verdict. Code § 8.01-678. This standard applies “in criminal as well as civil cases,” Clay v.

Commonwealth, 262 Va. 253, 259, 546 S.E.2d 728, 731 (2001), and requires us to determine the

following:

               “If, when all is said and done, the conviction is sure that the error
               did not influence the jury, or had but slight effect, the verdict and
               the judgment should stand . . . . But if one cannot say, with fair
               assurance, after pondering all that happened without stripping the
               erroneous action from the whole, that the judgment was not
               substantially swayed by the error, it is impossible to conclude that



                                                - 10 -
               substantial rights were not affected. . . . If so, or if one is left in
               grave doubt, the conviction cannot stand.”

Id. at 260, 546 S.E.2d at 732 (quoting Kotteakos v. United States, 328 U.S. 750, 764-65 (1946)).

       As previously noted, although the jury was instructed that it could consider appellant’s

character “when proven by the evidence,” no evidence proved character in the manner as

contemplated by our case decisions. See Zirkle, 189 Va. at 871, 55 S.E.2d at 29. Specifically,

there is no reputation evidence of appellant’s good or bad character for the “trait involved in

[this] prosecution.” Byrdsong, 2 Va. App. at 403, 345 S.E.2d at 530. Nevertheless, there was

evidence before the jury that appellant had a violent character. We acknowledge that during the

trial the Commonwealth introduced evidence of specific acts of misconduct and violence from

appellant’s past. Appellant suggests that the granting of the improper instruction was prejudicial

because the heart of the Commonwealth’s closing argument centered on appellant’s character

and focused on his violent nature. However, this evidence was not objected to and was therefore

before the jury for consideration. In commenting on that evidence in summation, the

Commonwealth made no improper comments or argument. The Commonwealth’s argument on

appellant’s violent nature was fully supported by testimony that was admitted during the trial

without objection. Notably, there was also no objection to the Commonwealth’s closing

statement.

       “‘The well settled rule that improper evidence introduced by a party, if unobjected to by

his opponent, will be considered by the appellate court as if it were proper evidence, on the

ground that the opponent has waived objection to it . . . .”’ Brame v. Nolen, 139 Va. 413, 420,

124 S.E. 299, 302 (1924) (quoting Wessel v. Bargamin, 137 Va. 701, 712, 120 S.E. 287, 291

(1923)). Thus, in determining whether the error was harmless, we review the entire record.

       In recounting appellant’s childhood, Dr. Boggio testified that appellant’s early onset of

depression resulted in instability. He explained, “You start to see the instability in oppositional
                                                 - 11 -
behavior.” Dr. Boggio testified that one of appellant’s daycare workers once described appellant

as “rude, very demanding and uncooperative.” Moreover, Dr. Boggio testified that he reviewed

a note from appellant’s grandmother that read:

                       Our immediate concern is our grandson, Matthew Pahno.
               We see all the signs of stress, anger and distrust. He is very
               destructive. He is now physically violent and seems not to care if
               he hurts someone or somebody. Matthew abused Luke outside in
               the sidewalk repeatedly by causing Luke to fall while skating.

                       I sat him down on the living room couch and told him to
               cool off and think about what he had done. He had viciously
               kicked Luke in the abdomen with his new skates. I turned to leave
               the room and he kicked me in the buttocks with his skates.

       Additionally, appellant’s grandmother wrote that she refused to purchase a pellet gun for

appellant, telling appellant that she had a concern that appellant might accidentally shoot Luke.

Appellant responded, “So?” When his grandmother repeated her concern that appellant could

accidentally shoot Luke, appellant “truly did not seem to care.”

       Dr. Boggio confirmed that a record from Central State Hospital dated September 2, 2005

indicated that appellant once tried to “strike staff,” continued to fight, and required emergency

intervention. The record characterized appellant as aggressive and suggested he learn anger

management techniques.

       Dr. Samenow testified that appellant would sometimes go on “vandalism rampages”

when he had been drinking. Appellant also told his father that he wished he could kill him.

Dr. Samenow stated that he spoke with appellant’s former stepmother, who described appellant

as “extremely angry.” Dr. Samenow recalled a conversation he had with the stepmother:

               She tried to stay clear of him and that he had kept everybody on
               edge. She said that even over the most minor thing, he could just
               become furious. For example, if there was the wrong kind of milk
               in the refrigerator, she said that, with Matt, you could tell he was
               about to explode. We’d take off rather than risk getting hurt.



                                               - 12 -
       Appellant’s stepmother also told Dr. Samenow that she was afraid to leave appellant at

home alone with his brother because appellant “was abusive to his brother.” She said “anything

could set him off.” She frequently observed that appellant would stiffen up, clench his fists, yell,

scream, punch, stomp, slam doors, and occasionally break things. She told Dr. Samenow that

living with appellant was “very scary.” On one occasion when his stepmother told him to get off

the phone, appellant hit her with a tray from a highchair. 2

       In view of these facts, we can say it plainly appears that “the verdict and the judgment

were not substantially affected” by the granting of the instruction. See Clay, 262 Va. at 261, 546

S.E.2d at 732. Had the instruction been refused, the evidence of appellant’s violent tendencies

would still be before the jury. Without the instruction, the jury could have, and apparently did,

accept the Commonwealth’s closing argument that appellant was prone to violence, thus refuting

appellant’s insanity defense. Thus, we find ample evidence in this record to support the

Commonwealth’s argument that appellant was inclined towards violence and such was his

character in general. We hold, therefore, that the error in granting the instruction was harmless.

                                          CONCLUSION

       For the foregoing reasons, we find that the trial court did not err in admitting into

evidence the letter found in appellant’s jail cell. We find that any error in excluding appellant’s

statement or in granting the jury instruction was harmless. Therefore, appellant’s conviction is

affirmed.

                                                                                          Affirmed.




       2
        Appellant never asked for a limiting instruction on Dr. Boggio’s or Dr. Samenow’s
testimony.
                                             - 13 -
