Superior Court of Pennsylvania Distinguished Between Inadmissible Character Evidence & Admissible Habit Evidence

Similar to its federal counterpart, Pennsylvania Rule of Evidence 406 provides that

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or there was an eyewitness.

There’s a fuzzy line between inadmissible propensity character evidence and admissible character evidence, a line explored by the Superior Court of Pennsylvania in its recent opinion in Commonwealth v. Byrd, 2021 WL 3088754 (Pa.Super. 2021).

In Byrd, 

the Commonwealth presented evidence [establishing that William Byrd] and his wife [ ] got into an argument about [Appellant] trying to take their children[, two girls ages six and three,] out of [the wife’s apartment] early in the morning of March 12, 2018. [Appellant] pushed [his wife] down the stairs in his attempt to [remove the children from the apartment]. Officer Brian Kiernan responded to [the] call on Theodore Street around 9:00 a.m. When he arrived at the residence, he [met Appellant’s wife] who had visible scratch marks on her neck and chest area, her shirt was ripped, and she stated that [Appellant choked and pushed her on the bed and that he pushed her down the stairs].

[The trial court found Appellant] guilty of simple assault, graded as a misdemeanor of the third degree. [Appellant] was found not guilty of the remaining charges. [Appellant] was immediately sentenced to a term of one year reporting probation.

On appeal, Byrd claimed that the trial court erred by precluding testimony by Melissa Peltier, Byrd’s mother

who lived with Appellant and the victim and who is alleged to have witnessed several arguments between the couple. Appellant offered Peltier as a defense witness who would attest that it was Appellant’s habit to “deescalate, [ ] placate, and capitulate” to the victim’s demands whenever the two began a disagreement….Because Appellant reacted the same way during each argument with the victim, he claims that Peltier’s testimony was admissible as evidence of habit since it referred to nonvolitional activity that occurred with invariable regularity. 

The court disagreed, concluding that

Evidence of habit must be distinguished from evidence of character. Character applies to a generalized propensity to act in a certain way without reference to specific conduct, and frequently contains a normative, or value-laden, component (e.g., a character for truthfulness). Habit connotes one’s conduct in a precise factual context, and frequently involves mundane matters (e.g., recording the purpose for checks drawn)….

The trial court did not err in rejecting Peltier’s proffered testimony. Domestic arguments do not constitute routine or mundane matters and, as such, an individual’s conduct within that context, whether violent or nonviolent, cannot be deemed “reflexive,” “instinctive,” or “nonvolitional.” Because such settings involve deliberative conduct, the nonvolitional character of habit evidence that makes it probative is absent. Accordingly, the trial court did not err in excluding Peltier’s testimony as evidence of habit.

-CM