J-A25030-16


                             2016 PA Super 306

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
      Appellee

                    v.

CHRISTOPHER ROSS HECKER,

      Appellant                                      No. 1950 MDA 2015


         Appeal from the Judgment of Sentence October 13, 2015
             In the Court of Common Pleas of Centre County
           Criminal Division at No(s): CP-14-CR-0000100-2015


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.:                     FILED DECEMBER 28, 2016

      Christopher Ross Hecker (“Appellant”) appeals from the judgment of

sentence entered in the Court of Common Pleas of Centre County after a

jury convicted him of Aggravated Harassment by Prisoner, 18 Pa.C.S.A. §

2703.1, for spitting a mouthful of water on a corrections officer. Sentenced

to one to two years’ incarceration, Appellant contends there was insufficient

evidence that the fluid he spat brought the corrections officer in contact with

saliva as required under the statute, and he challenges evidentiary rulings of

the court. We affirm.

      On December 8, 2014, Appellant was an inmate housed in a suicide

watch cell at the Centre County Correctional Facility.      Corrections Officer

Ryan Miller attempted to serve Appellant his meal by placing it on the “food




*Former Justice specially assigned to the Superior Court.
J-A25030-16



pass” shelf extending out from an opening in the cell door, but Appellant

picked the food up and threw it back at Miller. N.T. at 8/31/15 at 23, 37.

Given Appellant’s response, Miller attempted to close the food pass door, but

Appellant placed his arm in the way, so Miller opened the door enough to

allow Appellant to withdraw his arm before Miller closed the door again and

locked it. Id.

      Appellant began to fill his mouth with water and spit it through a one-

half inch opening running along the entire height of the cell door between

the door and the jamb. N.T. at 24. The opening was large enough to see

through to the other side of the door.       Id.   On various prior occasions,

Appellant had spat and urinated through this opening in efforts to harass

correction officers.   N.T. 24-29.   On this occasion, as verified by security

cameras, Appellant repeatedly took water from his sink, spat water through

the opening for the next twelve minutes, even as Officer Miller attempted to

block it with a bed sheet. N.T. at 30.

      According to Miller, the first time he approached with the sheet,

Appellant spat on his right knee, saturating his pants all the way down to his

boot. N.T. at 31. Miller held the sheet over the opening after that until a

fellow officer successfully turned off the water supply to the sink in

Appellant’s cell.

      Pennsylvania State Trooper Elizabeth Rita Clatch testified that she was

called to the prison and interviewed CO Miller about the episode. N.T. at 56.

She collected both the pair of pants and the sheet that Appellant spat upon


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and took them to the evidence room of her barracks, where she hung them

to dry overnight.   Id.   No testing was performed on the items, however,

because the District Attorney’s Office did not request testing.     N.T. at 57.

On cross-examination, Trooper Clatch verified a State Police laboratory in

Harrisburg can test for the presence of saliva. N.T. at 67-68.

      In   summations,     counsel   for   Appellant   emphasized    that   the

Commonwealth elected not to perform laboratory testing on CO Miller’s

pants because it believed the test would fail to detect saliva:

      DEFENSE COUNSEL: The most important evidence you could
      have in this case [is] that there was indeed saliva in that tap
      water that was continually being spat for 12 minutes before the
      CO was hit[; there] has to be the saliva in it. The Judge will give
      you that instruction.

      That’s what aggravated harassment is, not spitting on
      somebody. It’s spitting saliva on [somebody]. . . . If it’s not
      that, it’s not aggravated harassment. It might be something
      else, but that’s the crime they chose to bring.

      They have the burden of proof, because they get to choose what
      charges to bring against a person that is being tried by a jury.
      And they chose aggravated harassment. They say it’s not the
      crime of the century, it’s two attorneys, the trooper, all present
      in court to bring you this case, and they made a conscious
      decision not to test the evidence. What does that tell you? Tells
      you they didn’t think there was saliva in that sample. That’s
      why they didn’t test it.

N.T. at 76-77.

      After closing arguments, the court charged the jury that to find

Appellant guilty under Section 2703.1, it was required find each of three

elements proven beyond a reasonable doubt: (1) Appellant was a prisoner



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at the time of the assault; (2) he caused CO Miller to come into contact with

saliva by spitting the fluid on him; and (3) it was his conscious goal or

purpose to cause CO Miller to come in contact with the fluid containing

saliva, or that he was aware that it was almost certain he would cause such

contact. N.T. at 96-97. The jury retired to deliberations and returned with a

verdict of guilt. On October 13, 2015, the court sentenced Appellant to one

to two years’ incarceration, after which Appellant filed this timely appeal.

      Appellant presents the following questions for our review:

      1. WAS THE EVIDENCE INSUFFICIENT TO ESTABLISH THAT A
         CORRECTIONS OFFICER CAME INTO CONTACT WITH A
         BODILY FLUID, THAT IT WAS DEFENDANT’S CONSCIOUS
         GOAL OR PURPOSE THAT HE DO SO, OR THAT DEFENDANT
         WAS AWARE THAT IT WAS ALMOST CERTAIN THAT HE
         WOULD COME INTO CONTACT WITH BODILY FLUID AS THE
         COMMONWEALTH ONLY ESTABLISHED THAT DEFENDANT
         WAS SQUIRTING TAP WATER OUT OF HIS MOUTH FOR 12
         MINUTES BEFORE ANY OF IT CAME IN CONTACT WITH THE
         OFFICER’S PANT LEG[?]

      2. DID THE LOWER COURT ERR IN GRANTING THE
         COMMONWEALTH’S REQUEST TO BAR [DEFENDANT’S]
         REQUEST THAT SCIENTIFIC PROOF WAS REQUIRED TO
         ESTABLISH THAT THE TAP WATER DEFENDANT WAS
         SPITTING OUT OF HIS MOUTH CONTAINED SALIVA AS THESE
         RULINGS: IMPROPERLY RELIEVED THE COMMONWEALTH OF
         ITS BURDEN OF PROVING AN ELEMENT OF THE OFFENSE OF
         AGGRAVATED HARASSMENT BY PRISONER, WAS AN
         INCORRECT    STATEMENT   OF  LAW,   AND    DEPRIVED
         DEFENDANT OF HIS DUE PROCESS RIGHT TO PRESENT A
         DEFENSE?

      3. DID THE LOWER COURT ERR IN PRECLUDING THE
         DEFENDANT FROM INTRODUCING EVIDENCE OF OTHER
         CASES WHERE THE COMMONWEALTH TESTED CLOTHING
         TAKEN INTO EVIDENCE FOR THE PRESENCE OF SALIVA AS
         THE ABSENCE OF THAT EVIDENCE PERMITTED THE


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         COMMONWEALTH      TO    MAKE     THE   PREJUDICIAL
         UNREBUTTABLE CLAIM IN ITS CLOSING ARGUMENT THAT IT
         DID NOT TEST THE CLOTHING BECAUSE IT WOULD HAVE
         BEEN A WASTE OF MONEY.

Appellant’s brief at 5-6.

      We first address Appellant's claim that the evidence presented at trial

was insufficient to convict him of aggravated harassment by prisoner.

      [O]ur standard of review of sufficiency claims requires that we
      evaluate the record in the light most favorable to the verdict
      winner giving the prosecution the benefit of all reasonable
      inferences to be drawn from the evidence. Evidence will be
      deemed sufficient to support the verdict when it establishes each
      material element of the crime charged and the commission
      thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty. Any doubt about the defendant's guilt is
      to be resolved by the fact finder unless the evidence is so weak
      and inconclusive that, as a matter of law, no probability of fact
      can be drawn from the combined circumstances.

      The Commonwealth may sustain its burden by means of wholly
      circumstantial evidence.      Accordingly, [t]he fact that the
      evidence establishing a defendant's participation in a crime is
      circumstantial does not preclude a conviction where the evidence
      coupled with the reasonable inferences drawn therefrom
      overcomes the presumption of innocence. Significantly, we may
      not substitute our judgment for that of the fact finder; thus, so
      long as the evidence adduced, accepted in the light most
      favorable to the Commonwealth, demonstrates the respective
      elements of a defendant's crimes beyond a reasonable doubt,
      the appellant's convictions will be upheld.

Commonwealth v. Stays, 40 A.3d 160, 167 (Pa.Super. 2012) (internal

quotations and citations omitted).

      The crime of aggravated harassment by prisoner is defined as follows:

      A person who is confined in or committed to any local or county
      detention facility, jail or prison or any State penal or correctional



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J-A25030-16


       institution or other State penal or correctional facility located in
       this Commonwealth commits a felony of the third degree if he,
       while so confined or committed ... intentionally or knowingly
       causes or attempts to cause another to come into contact with
       blood, seminal fluid, saliva, urine or feces by throwing, tossing,
       spitting or expelling such fluid or material.

18 Pa.C.S. § 2703.1.

       In Commonwealth v. Boyd, 763 A.2d 421 (Pa.Super. 2000), this

Court announced that “it is unnecessary for the Commonwealth to conduct a

chemical analysis of the fluid or material to determine whether it is one of

the fluids/materials listed in Section 2703.1.”      Id. at 424.    Instead, the

Commonwealth may meet its burden of proof by relying upon circumstantial

evidence that the substance was one of the offensive substances listed in the

statute. Id. Applying this standard to the case before it, the Boyd court

held that circumstantial evidence as to the identity of a cup of liquid thrown

on a prison guard was sufficient to obviate the need for chemical analysis.

Specifically, the prisoner threatened to throw urine on the guard earlier that

day, stated it would be feces the next time as he threw the liquid, and the

guard testified the liquid was warm, yellow, and smelled like urine. Id. at

422.

       Here, Appellant argues that evidence establishing he spat water upon

CO Miller could not, alone, “support a reasonable conclusion that this water

was or even contained any amount of saliva[,]” where he had been spitting

water continuously for approximately twelve minutes beforehand.               “Mr.

Hecker was convicted solely on the unreasonable [and] unsupported

inference that because this tap water had been taken into his mouth briefly


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prior to expulsion that it contained saliva[,]” Appellant argues in his brief.

Appellant’s brief at 17.

      A plain reading of the statute confirms that in order to be convicted of

aggravated harassment by prisoner, Appellant must have brought or

attempted to bring CO Miller in contact with his saliva.      Testimonial and

video evidence that Appellant spat a mouthful of water on the corrections

officer supplied sufficient circumstantial evidence from which to infer that a

mixture of water and saliva landed on the officer.1 Indeed, it is difficult to

imagine how saliva would not constitute some part of the mix any time fluid

is expelled from the mouth.     Moreover, there was no need to analyze the

fluid on the officer’s pant leg and boot for traces of saliva enzymes or to

describe the viscosity or appearance of the fluid, because of the undisputed

fact that Appellant discharged this fluid directly from his mouth.

      Because the plain language of Section 2703.1 criminalizes an inmate’s

act of spitting or attempting to spit saliva on a corrections officer, and

Appellant’s offensive conduct falls squarely under this prohibition, we deem

the evidence sufficient to support Appellant’s conviction.     Accordingly, we

reject Appellant’s first issue as devoid of merit.

      Appellant next charges reversible error with the court’s ruling

prohibiting him from arguing to the jury that the Commonwealth was

required to perform laboratory tests in order to prove the presence of saliva


1
  At a minimum, the evidence sufficed to establish Appellant’s attempt to
land saliva, albeit as part of a larger, water-based mixture, on the officer.


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on CO Miller’s pants.   “Under these circumstances it was improper for the

trial court to take away Mr. Hecker’s defense that the Commonwealth had to

test the evidence it collected for the presence of these enzymes because it is

only the presence of these enzymes which distinguish saliva from the tap

water he was expelling from his mouth[,]” Appellant argues.        Appellant’s

brief at 21.

      We discern no authority supporting this position where evidence

allowed the finder of fact to infer beyond a reasonable doubt that Appellant,

in spitting upon CO Miller as he did, caused some amount of his saliva to

come into contact with the officer.    Our decisional law consisting of Boyd

and its progeny rejects the position that chemical testing is required to

support a charge brought pursuant to Section 2703.1 where circumstantial

evidence is sufficient to establish the offense. We, therefore, find no merit

to this claim.

      In his third and final issue, Appellant argues that the trial court erred

in excluding evidence that the Commonwealth had opted, in other Section

2703.1 cases, to chemically test clothing for saliva. Appellant was permitted

to argue only that testing was not performed in this case and to explore the

Commonwealth’s reasons for opting against such testing.

      Appellant contends the excluded evidence was relevant to show that

the Commonwealth normally tested clothing in cases such as this but

believed, in this instance, that CO Miller’s clothes would have tested

negative. Under Pa.R.E. 401, evidence is relevant if “(a) it has any tendency


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J-A25030-16



to make a fact more or less probable than it would be without the evidence;

and (b) the fact is of consequence in determining the action.” Id.

       Instantly, Appellant fails to explain how evidence of chemical testing in

other cases would have had any tendency to make a negative test result in

the present case more probable. Given the record before us, it seems that

fear of the results was, at best, no more likely the reason for opting against

testing than was a confidence that eyewitness and video-based evidence of

Appellant spitting directly upon CO Miller obviated the need for testing. As

such, Appellant fails to satisfy the first condition of relevance under Pa.R.E.

401.

       Furthermore, Appellant fails to establish that such evidence was of

consequence in determining the action where, again, the circumstantial

evidence was sufficient to convict him of 2703.1 without resort to laboratory

testing.    In this vein, it also bears noting that counsel for Appellant was

permitted     to   advance   a   zealous   argument   to   the   jury   that   the

Commonwealth failed to conduct laboratory testing in this case because it

believed the results would be negative.        The jury clearly rejected this

defense position. Accordingly, this claim affords Appellant no basis for relief.




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     For the foregoing reasons, judgment of sentence is AFFIRMED.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/28/2016




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