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HomeMy WebLinkAboutCP-21-CR-1036-2003COMMONWEALTH ABDEL MUSEN FATTAH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA C P-2'1 -C R-'1036-2003 CHARGE: AGGRAVATED HARASSMENT BY PRISONER (2 COUNTS) AFFIANT: TPR. GERALD ALLEN IN RE: OPINION PURSUANT TO PA. R.A.P. '1925 Before Hoffer, P.J.; STATEMENT OF FACTS The appellant in this case has appealed from a jury trial finding the defendant, Abdel Fatth, guilty of two (2) counts of Aggravated Harassment by Prisoner. The appellant's grounds for this appeal are that the court erred in not giving the self-defense charge to the jury and that the remarks made by the District Attorney warrant a mistrial. Both grounds have no merit This case arises from incidences that occurred on January 16 and 17, 2003 at the State Correction Institution in Camp Hill. Testimony ofSieghman. Melissa J. Seigman is a nurse employed at the State Correctional Institution in Camp Hill.1 On January 16, 2003, she was working at the Camp Hill infirmary and encountered Abdel Musen Fattah, the defendant, who had arrived at the institution in early January of 2003. He was ~ N.T., p. 9. usually housed in the special management unit of the Camp Hill prison.2 She testified that the defendant went on a hunger strike shortly after his arrival. She stated that Doctor Young went to court and received a court order, based on defendant's medical status, in order to feed him with a nasogastric tube.3 She also explained that because the defendant had not been agreeable to having the tube inserted and had threatened to remove the tube once it was inserted, after the feeding took place, he was restrained in the institution's standard leather restraints. These restraints are used for people who need to be protected from harming themselves.'~ While restrained, the defendant was offered exercise to relieve himself and to drink fluids, if he so desired, every two hours. He was offered to be let up if he would eat a meal and drink on his own. However, the defendant declined, and therefore, was fed through the nasogastric tube.5 She testified that Officer Perez was the Correctional Officer performing what was called a "one-to-one" with the defendant, which meant he was is in direct observation of him at all times.6 At that time, the defendant was in one of the institution's psychiatric observation cells in the infirmary. She stated that Officer Perez had called her over because the feeding tube had become 2 N.T., p. 56. 3 N.T, p. 11. A nasogastric tube is a very small, flexible tube which is inserted in one side of the nose and down the back of the throat and into the stomach. N.T., p. 11. On January 15, 2003, prison medical personnel had obtained an ex parte preliminary injunction from the Honorable Edward E. Guido. 4 N.T., p. 14. 5N.T., p. 32. 6 N.T., p. 16. 2 dislodged from the side of his head and was hanging over the edge of the bed, causing fluid from the tube to drip on the floor. When they requested permission from the defendant to enter the cell and fix the tube, he threatened that if they came into the cell, he would spit on them. 7 At one point, the defendant even threatened Officer Pezez and told him that he would kill him if he came in the room.8 The defendant then raised his head up off the bed and spat a large, slimy mucous ball at Officer Perez and nurse Seigman. The size of the mucous was about the size of a golf ball. The spit went between the people standing in the room, without hitting them, and made a large splat when it hit the floor.9 A spitting sock was then applied to the defendant per the doctor's orders.1° After the spitting sock was applied to the defendant on January 16, 2003, the defendant continued to try and spit even though he was wearing a spit sock. 11 Testimony of Doctor Young. Dr. William W. Young is a physician who works at the State Correctional Institution in Camp Hill, PA. He was offered as 7 N.T., p. 17. 8 N.T., p. 20. 99 If any staff member is exposed to another person's body fluids, the staff member must immediately report to the dispensary to get cleaned. They then have a report filled out. If it is a significant exposure, they are sent out to the emergency room or to the institutions emergency provider because there is a great concern with infectious diseases, such as AIDS and hepatitis. N.T., p. 22-23. l0 N.T., p. 23. A spit sock is a cloth fashioned in a tube that is closed up on the top. It is a very lightweight, flexible material, which is quite easy to breathe through. It is slid over an inmate's head when he is spitting to prevent the inmate from being able to spit any farther than the sock will allow. N.T., p. 23. ~ N.T., p. 27. an expert witness in the field of Internal Medicine. The doctor testified that he selected the feeding tube as a means of feeding the defendant because an IV had been tried, but the defendant had taken out the IV tube.~2 Testimony of Correction Officer Baity. Officer David Baity works at the State Correctional Institution in Camp Hill.~3 on duty on January 16, 2003, at 10:00 p.m. Officer Baity testified that he came During his shift, at around 2:10 a.m. on January 17, 2003, Officer Baity was spat on by the defendant. Officer Baity testified that he observed a "big hawker brown and tannish in color about the size of a golf ball.''~4 He managed to avoid the actual spit, but overspray landed in his face. He immediately sought medical attention.~5 DISCUSSION The defendant has raised two issues on appeal. Both grounds for appeal have no merit. The first issue raised on appeal by the defendant was that the jury was not instructed on the self-defense charge. According to the Crimes Code at Section 505: (a) Use of force justifiable for protection of the person.--The use of force upon or toward another person is justifiable when the actor believes that such 42 NT., p. 47. 43 N.T., p. 63. 44 N.T., p. 68. 45 N.T., p. 68. 4 force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion. The defendant cites a case holding that "if there is evidence presented that could support a claim of self-defense, it is up to the fact finder to pass upon its credibility and it is therefore improper for a trial court to exclude such consideration by refusing a charge thereon." Commonwealth v. Barley, 324 Pa. Super. 236 at 239, 471 A.2d 551 at 551 (Pa. Super. Ct. 1984). However, in this case, there was not sufficient evidence presented that could support a claim of self-defense. The facts show that the defendant spat at two separate guards on two separate occasions while the prison guards were following appropriate and lawful institution protocol. As such, it was not improper for a trial court to exclude the self-defense charge. The second issue raised on appeal is that the mistrial should have been granted as a result of the remarks made by the District Attorney during his closing remarks. The law concerning closing arguments is well-settled in Pennsylvania. "Generally, a prosecutor's remarks during closing arguments will seldom mandate a new trial. Even where the language of a prosecutor is intemperate, uncalled for and improper, a new trial is not required unless its unavoidable effect would be to prejudice the jury, forming in their minds, fixed bias and hostility toward the defendant, so that they could not weight the evidence and render a true verdict." See Commonwealth v. Banks, 450 Pa. Super. 555, 561,677 A.2d 335, 338 (Pa. Super. Ct. 1996) (citing Commonwealth v. Ritter, 419 Pa. Super. 430, 615 A.2d 442,451 (Pa. Super. Ct. 1992), appeal denied, 535 Pa. 656, 634 A.2d 220 (Pa. 1993). Moreover, whether a court abuses its discretion in refusing to withdraw of juror because of improper remarks of counsel must be determined based upon the circumstances under which the statements were made and the precaution taken by the court and counsel to prevent such remarks from having a prejudicial effect. See McCune v. Learmer, 383 Pa 434, 437-8, 119 A.2d 89, 90 (Pa. 1956). In this case, the court charged the jury that they were to take the remarks objected to by defense counsel out of the equation in deliberating the case. Any prejudicial effect of the remarks made by the District Attorney does not justify a new trial because the jury charge cured any possible prejudice to the defendant. See also, Austin v. Hamish, 227 Pa. Super. 199, 323 A.2d 871 (Pa. Super. Ct. 1974). In this case, even if the District Attorney traversed the bounds of legitimate argument, the remarks complained of were not, under the facts of this case, so inflammatory or prejudicial as to necessitate a mistrial in view of the curative action taken by the court in directing the jury to disregard the remarks.