BAR TRICK FROM BEHIND BARS: Betcha can’t spit water out of your mouth without including your saliva in the mix

After making the startling observation that “it is difficult to imagine how saliva would not constitute some part of the mix any time fluid is expelled from the mouth,” the Superior Court has decided the case of Commonwealth v. Hecker, No. 1950 MDA 2015 (December 28, 2016), holding that because the plain language of the applicable statute criminalized an inmate’s act of spitting or attempting to spit saliva on a corrections officer, Hecker’s act of spitting water on a corrections officer from behind his prison bars was sufficient to support his conviction.


Becker was an inmate housed in a suicide watch cell at the Centre County Correctional Facility. Corrections Officer Ryan Miller attempted to serve Hecker his meal by placing it on the “food pass” shelf extending out from an opening in the cell door, but Hecker picked the food up and threw it back at Miller. Becker continued to be uncooperative and 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. In fact, Hecker repeatedly took water from his sink and spat water through the opening for the next twelve minutes, even as Officer Miller attempted to block it with a bed sheet. Nonetheless, Hecker was able to spit on Miller’s right knee, saturating Miller’s pants all the way down to his boot. Miller held the sheet over the opening after that until a fellow officer successfully turned off the water supply to the sink in Hecker’s cell.

Becker was charged with Aggravated Harassment by Prisoner for spitting a mouthful of water on Miller, a corrections officer. He was subsequently convicted and sentenced to one to two years’ incarceration for the offense.


Whether there was sufficient evidence that the fluid Hecker spat brought the corrections officer in contact with saliva as required under the statute?


Hecker’s conduct of spitting water on a corrections officer fell squarely under the conduct prohibited by the statute and the evidence was sufficient to support his conviction.


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 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.

(ED. NOTE – the statute does not include food or water in the list of offensive fluids or materials)

In this case, the trial court charged the jury that to find Hecker guilty under the applicable statute, they had to find each of three elements proven beyond a reasonable doubt: (1) Hecker was a prisoner 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.

Hecker argued that the evidence established he spat water upon CO Miller but that, alone, did not 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. Hecker concluded that he was convicted solely on the unreasonable and unsupported inference that because this tap water had been taken into his mouth briefly prior to expulsion, it contained saliva. He submitted that a chemical analysis was required to prove beyond a reasonable doubt that the liquid expelled from his mouth actually contained saliva as required by the statute.

The Superior Court observed that “it is difficult to imagine how saliva would not constitute some part of the mix any time fluid is expelled from the mouth” and, accordingly, found the Commonwealth’s circumstantial evidence that the fluid contained water was sufficient.

The Superior Court concluded that because the plain language of the applicable statute criminalizes an inmate’s act of spitting or attempting to spit saliva on a corrections officer, and because Hecker’s offensive conduct fell squarely under this prohibition, the evidence was sufficient to support Hecker’s conviction.


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