Com. v. Hanford

937 A.2d 1094

COMMONWEALTH of Pennsylvania, Appellee v. Jason HANFORD, Appellant.

No. 2657 EDA 2006.

Superior Court of Pennsylvania.

Argued June 27, 2007.

Filed November 26, 2007.

Thomas P. Sundmaker, Stroudsburg, for appellant.

Michael Rakaczewski, Asst. Dist. Atty., Stroudsburg, for the Com., appellee.

BEFORE: TODD, GANTMAN and KELLY, JJ.

OPINION BY KELLY, J.:

¶ 1 Appellant, Jason Hanford, appeals from the judgment of sentence of 8½ to 17 years' imprisonment entered in the Court of Common Pleas of Monroe County following his jury conviction of rape, involuntary deviate sexual intercourse, sexual assault, aggravated indecent assault, and unlawful restraint.¹ The central issue on appeal is whether the trial court erred in allowing the Commonwealth to introduce an undisclosed, recorded conversation between Appellant, who was incarcerated, and a defense witness, for the purpose of impeaching the credibility of the witness. We find that, because the failure to disclose this evidence was highly prejudicial, it should not have been admitted. Accordingly, we reverse and remand for a new trial. We also find merit in one of the other two errors cited by Appellant: namely that the factual allegations contained in a civil complaint filed by the complainant against a defense witness were improperly excluded. We find no merit in Appellant's assertion that the trial court should have given an "absence of flight" instruction to the jury, an issue of first impression in this Commonwealth.

¶ 2 The charges against Appellant stem from an incident on June 21, 2004, in which he allegedly raped the complainant at a hotel in Stroudsburg, Monroe County, Pennsylvania. He and the complainant were co-workers who had agreed to share a hotel room temporarily while they each looked for permanent housing. After having spent the day drinking and socializing, they returned to their room. The complainant alleged that when she refused Appellant's sexual overtures, he first became violently agitated, then forcibly raped² and repeatedly struck her in the face, neck, legs, and back, tearing out clumps of her hair during the attack. Appellant pleaded not guilty to all charges, and trial commenced on September 8, 2005.

¶ 3 Approximately one year prior to trial, the Commonwealth, through a sealed court order, had obtained a recording of a telephone conversation that Appellant, while incarcerated, had with a woman who would later appear as a defense witness. Appellant was unaware that the Commonwealth possessed such a recording, and was not provided with a copy despite a specific discovery request for "any transcripts and recordings of any electronic surveillance." (Appellant's Brief at 4).

¶ 4 Appellant's appeal to this Court cites three errors by the trial court. First, Appellant challenges the trial court's decision to allow the Commonwealth to introduce the recorded conversation as rebuttal evidence to impeach the credibility of the witness heard on the recording. He also assigns error to the trial court's denial of his request to use, in his questioning of a defense witness, a civil complaint filed by the complainant against the witness. Appellant's final claim of error is the refusal of his request for an "absence of flight" jury instruction, which would allow an inference of innocence because he did not flee the scene. We have reordered Appellant's claims for ease of resolution.

I. "Absence of flight" jury instruction

¶ 5 Appellant argues that because he did not attempt to flee between the time the complainant called police and when they actually arrived at the hotel, he was entitled to an "absence of flight" jury instruction. According to Appellant, the jury should be permitted to infer his innocence because he did not attempt to elude capture. We disagree.

¶ 6 Our standard of review for the trial court's instructions to a jury is well established. "When reviewing a challenge to part of a jury instruction, we must review the jury charge as a whole to determine if it is fair and complete." Commonwealth v. Einhorn, 911 A.2d 960, 975 (Pa.Super.2006), appeal denied, 591 Pa. 723, 920 A.2d 831 (2007). Reversible error occurs "[o]nly where there is an abuse of discretion or an inaccurate statement of the law." Commonwealth v. Collins, 810 A.2d 698, 700 (Pa.Super.2002) (citing Commonwealth v. Myers, 722 A.2d 1074, 1076 (Pa.Super.1998), appeal denied, 559 Pa. 702, 740 A.2d 231 (1999)).

¶ 7 This issue is apparently one of first impression in Pennsylvania. While a "flight" instruction, whereby a jury may infer consciousness of guilt from an attempt to flee, is well established in this Commonwealth, see Pa.S.S.J.I. (Crim) 3.14; Commonwealth v. Bruce, 717 A.2d 1033 (Pa.Super.1998), appeal denied, 568 Pa. 643, 794 A.2d 359 (1999), there is no authority for a corresponding but inverse "absence of flight" instruction. Indeed, Appellant cites no authority for his notion. Other states that have addressed the issue, however, have uniformly rejected it. See e.g. Smith v. U.S., 837 A.2d 87, 100 (D.C. 2003), cert. denied, 541 U.S. 1081, 124 S.Ct. 2435, 158 L.Ed.2d 996 (2004); People v. Williams, 55 Cal.App.4th 648, 64 Cal. Rptr.2d 203, 205 (1997); State v. Pettway, 39 Conn.App. 63, 664 A.2d 1125, 1134 (1995), appeal denied, 235 Conn. 921, 665 A.2d 908 (1995); State v. Walton, 159 Ariz. 571, 769 P.2d 1017, 1030 (1989), affirmed, 497 U.S. 639, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990); State v. Mayberry, 411 N.W.2d 677, 684 (Iowa 1987).

¶ 8 The most salient argument against the "absence of flight" instruction is that, unlike an attempt to flee, the fact that a suspect did not try to avoid the police is open to multiple interpretations, many of which have little to do with consciousness of guilt, and which could actually reflect a strategic choice. As the trial court noted, "[T]he individual may be unaware that he is a suspect in a pending investigation; he may believe that he is more likely to be perceived as innocent of the crimes charged if he refrains from hiding; or perhaps he may not want to make a bad situation worse." (Trial Ct. Op. at 16). While an affirmative action such as flight is usually performed for a reason that can be determined upon investigation, inaction does not lend itself to so tidy an inquiry. The conclusion that Appellant's innocence may be inferred from the fact that he did not try to elude police is a logical leap of deductive reasoning that this Court cannot endorse.

¶ 9 Furthermore, the "absence of flight" instruction is unnecessary because, from the outset, an individual is presumed innocent until proven guilty and the jury is so instructed. Pa.S.S.J.I. (Crim) 7.01. Because the defendant is already "clothed with a presumption of innocence," Collins, supra at 701 (citing Commonwealth v. Bishop, 472 Pa. 485, 372 A.2d 794, 796 (1977)), the jury need not be additionally charged on an inference of innocence where a suspect does not flee. Accordingly, we find no merit in Appellant's claim.

II. Exclusion of civil complaint from evidence

¶ 10 Appellant also argues that the trial court erred when it denied his request to question a defense witness regarding a civil complaint filed against the witness by the complainant. She had sued the witness, who employed both her and Appellant at the time of the alleged rape, for creating an unsafe working environment by having hired Appellant, a convicted felon. (N.T., 9/9/05, at 97). Appellant contends that the trial court incorrectly excluded the factual allegations contained in the complaint as hearsay on grounds that the complainant's lawyer rather than the complainant herself had verified it. We are compelled to agree with Appellant.

¶ 11 The standard of review for a trial court's evidentiary rulings is narrow. "The admissibility of evidence is solely within the discretion of the trial court and will be reversed only if the trial court has abused its discretion." Commonwealth v. Carter, 861 A.2d 957, 961 (Pa.Super.2004) (quoting Commonwealth v. Herb, 852 A.2d 356, 363 (Pa.Super.2004)), appeal granted, 583 Pa. 678, 877 A.2d 459 (2005). "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.

¶ 12 The admissibility of hearsay is addressed in rules 801, 802, and 803 of the Pennsylvania Rules of Evidence. Rule 801(c) defines hearsay as "a statement ... offered in evidence to prove the truth of the matter asserted." Hearsay evidence is inadmissible under Rule 802. Rule 803, however, identifies a number of exceptions to the prohibition; 803(25) specifically exempts from the hearsay rule "statement[s] offered against a party," where the statement is (A) "the party's own statement in either an individual or representative capacity," or is made (C) "by a person authorized by the party to make a statement concerning the subject." The latter is most germane here.

¶ 13 The statements in the complaint were verified by the complainant's attorney. Where such statements appear in documents "filed in accordance with local court rules, in the case at issue, [they] are classified as `judicial admissions.'" Binder, David, BINDER ON EVIDENCE, § 8.03 (4th ed. 2005) (emphasis original). In fact, the complaint states that the complainant authorized the attorney to verify it on her behalf, and as required by Pa.R.C.P. 76, the complaint was verified subject to the penalties of 18 Pa.C.S.A. § 4904, pertaining to unsworn falsification to authorities. Because the complaint was filed with the Court of Common Pleas of Monroe County, it qualifies as a judicial admission which "when offered in evidence, is conclusive. It estops the party from denying or contradicting the assertion." Id. Judicial admissions are both unequivocal and limited to "factual matters otherwise requiring evidentiary...