J-S25034-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    ERNEST ODOM, III                           :
                                               :
                       Appellant               :      No. 1708 MDA 2019

      Appeal from the Judgment of Sentence Entered September 18, 2019
                In the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0004386-2018

BEFORE: LAZARUS, J., DUBOW, J., and KING, J.

MEMORANDUM BY KING, J.:                                   FILED JULY 17, 2020

        Appellant, Ernest Odom, III, appeals from the judgment of sentence

entered in the Luzerne County Court of Common Pleas, following his jury trial

convictions for two counts of aggravated harassment by prisoner.1 We affirm.

        The relevant facts and procedural history of this case are as follows.

Appellant is an inmate serving two life sentences.         On March 12, 2017,

Appellant was housed at SCI-Retreat. On that date, a corrections officer and

nurse made rounds to pass out medication to inmates in their cells. Appellant

called out, asking for Pepto-Bismol. The officer opened the food aperture for

Appellant’s cell while the nurse prepared the medication. Once the aperture

was down, Appellant threw urine and feces at the officer and nurse.

        On January 18, 2019, the Commonwealth filed a criminal information

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1   18 Pa.C.S.A. § 2703.1.
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charging Appellant with two counts of aggravated harassment by prisoner.

Appellant proceeded to a jury trial on September 17, 2019.       At trial, the

Commonwealth presented testimony from the corrections officer. On cross-

examination, Appellant twice attempted to ask the officer about the prison’s

internal system of punishment for inmate misconduct. The Commonwealth

objected, questioning the relevance of the prison disciplinary system to the

instant case.   Appellant did not offer any argument to support the line of

questioning, and the court sustained the objections.

      On September 18, 2019, the jury found Appellant guilty on all counts.

That same day, the court sentenced Appellant to an aggregate term of six (6)

to twelve (12) years’ imprisonment, to run consecutive to the sentences

Appellant was already serving. Appellant did not file post-sentence motions.

      Appellant timely filed a notice of appeal on October 15, 2019.       On

October 16, 2019, the court directed Appellant to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. Appellant timely filed

his Rule 1925(b) statement on November 6, 2019.

      Appellant now raises one issue for our review:

         Whether the trial court erred in sustaining the
         Commonwealth’s     objection   to   questions regarding
         punishments available for inmate misconduct?

(Appellant’s Brief at 4).

      On appeal, Appellant argues he attempted to question the officer about

the availability of alternative punishments to criminal prosecution for inmate


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misconduct, and the officer’s answers would have been relevant. Appellant

contends the officer’s answers would have laid the foundation for the selective

prosecution defense he intended to pursue, and the trial court should have

allowed the officer to answer the questions on this basis. Appellant relies upon

Commonwealth v. Kane, 188 A.3d 1217 (Pa.Super. 2018), appeal denied,

649 Pa. 652, 197 A.3d 1180 (2018), for the proposition that selective

prosecution is a defense on the merits that can be presented to a jury.

Appellant concludes the court abused its discretion in sustaining the

Commonwealth’s objections to the questions raised on cross-examination of

the officer. We disagree.

      This Court’s standard of review for issues regarding the admissibility of

evidence is well settled:

         Questions concerning the admissibility of evidence are
         within the sound discretion of the trial court … [and] we will
         not reverse a trial court’s decision concerning admissibility
         of evidence absent an abuse of the trial court’s discretion.
         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. [I]f in reaching a conclusion the
         trial court [overrides] or misapplies the law, discretion is
         then abused and it is the duty of the appellate court to
         correct the error.

Commonwealth v. Belknap, 105 A.3d 7, 9-10 (Pa.Super. 2014), appeal

denied, 632 Pa. 667, 117 A.3d 294 (2015) (internal citations and quotation

marks omitted).

      “Relevance    is   the   threshold    for   admissibility   of   evidence.”

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Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa.Super. 2015) (en banc),

appeal denied, 633 Pa. 787, 128 A.3d 220 (2015).

         Evidence is relevant if it logically tends to establish a
         material fact in the case, tends to make a fact at issue more
         or less probable, or tends to support a reasonable inference
         or proposition regarding a material fact. Relevant evidence
         may nevertheless be excluded if its probative value is
         outweighed by the danger of unfair prejudice, confusion of
         the issues, or misleading the jury, or by considerations of
         undue delay, waste of time, or needless presentation of
         cumulative evidence.

Commonwealth v. Danzey, 210 A.3d 333, 342 (Pa.Super. 2019), appeal

denied, ___ Pa. ___, 219 A.3d 597 (2019) (internal quotation marks omitted).

      Additionally, the defendant bears the burden of proving a selective

prosecution claim:

         In order to establish a prima facie case of selective
         prosecution, [the defendant] must establish, first, that
         others similarly situated were not prosecuted for similar
         conduct, and, second, that the Commonwealth’s
         discriminatory prosecutorial selection was based on
         impermissible grounds such as race, religion, the exercise
         of some constitutional right, or any other such arbitrary
         classification. The burden is on the defense to establish the
         claim; it is error to shift the burden to the prosecution to
         establish or refute the claim. Because of the doctrine of
         separation of powers, the courts will not lightly interfere
         with an executive’s decision of whom to prosecute.

Commonwealth v. Murphy, 795 A.2d 997, 1000 (Pa.Super. 2002) (internal

citations omitted). “A selective or vindictive prosecution claim is not a defense

on the merits and not a matter for presentation to the jury.” Commonwealth

v. Stetler, 95 A.3d 864, 892 (Pa.Super. 2014), appeal denied, 630 Pa. 743,

108 A.3d 35 (2015). See also Commonwealth v. Butler, 529 Pa. 7, 13,

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601 A.2d 268, 270 (1991) (holding selective prosecution claim “is unrelated

to the determination of guilt or innocence” and defendant raising such claim

“does not have the right to present it to the jury”).

       Instantly, defense counsel attempted to question the officer about

punishments, within the prison system, for inmate misconduct.        When the

Commonwealth objected, defense counsel did not suggest the officer’s

answers were material to establishing a selective prosecution claim. Further,

the certified record does not reveal that Appellant explicitly raised this claim

at any time prior to trial. See Butler, supra at 13-14, 601 A.2d at 270-71

(explaining selective prosecution claim should be raised in pretrial motion to

dismiss).    We reiterate that selective prosecution is not a defense on the

merits and, absent more, the trial court properly rejected Appellant’s attempt

to introduce irrelevant evidence regarding the prison disciplinary system.2

See Danzey, supra; See Stetler, supra. Accordingly, we affirm Appellant’s

judgment of sentence.




____________________________________________


2 Although Appellant relies on Kane, he concedes it “did not precisely state
that the issue of selective prosecution could be be presented to a jury.” (See
Appellant’s Brief at 14). Rather, Kane compared the different elements for
“the two very distinct concepts of selective and vindictive prosecution.” Kane,
supra at 1229.

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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/2020




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