J-S39023-17
2017 PA Super 239
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JAMES LAMONT DOMEK
Appellant No. 1529 WDA 2016
Appeal from the PCRA Order September 12, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0016570-2012
BEFORE: BENDER, P.J.E., BOWES AND STRASSBURGER,* JJ.
OPINION BY BOWES, J.: FILED JULY 21, 2017
James Lamont Domek appeals from the September 12, 2016 order
denying his PCRA petition without a hearing. We reverse and remand for a
new trial.
On August 29, 2012, a City of Pittsburgh police officer transported
Appellant to the Allegheny County Jail. Two Allegheny County corrections
officers (“CO”), CO Dabrowski and CO Bonenberger, then proceeded to take
him through the standard inmate intake procedures. We previously
recounted the salient facts in Appellant’s direct appeal:
When Appellant arrived at the sally port . . ., he initially
complied with the search of his person. However, when
Appellant was asked to place his fingers inside his mouth, [in
order to facilitate inspection], he became noncompliant, using
profanity at CO Dabrowski. The CO gave him several
opportunities to comply and warned Appellant that if he
continued in his non-compliance, Dabrowski would have to assist
* Retired Senior Judge assigned to the Superior Court.
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him in opening his mouth. According to Dabrowski, Appellant
replied, “[F---] You, go ahead.”
As Dabrowski reached forward to grab the lower part of
Appellant’s mouth, Appellant smacked away Dabrowski’s hand.
Appellant began to stand up, tried to grab Dabrowski and
engaged in a struggle with the CO. Appellant attempted to
punch Dabrowski at which point Dabrowski countered with a
closed-hand strike to Appellant’s face, knocking him backward.
CO Marjorie Bonenberger then intervened, grabbed Appellant by
the hair and assisted Dabrowski in getting Appellant to the
ground. Unfortunately, Bonenberger ended up underneath
Appellant on the ground. While on the ground[,] Appellant
refused to place his hands behind his back. Sergeant Robert
Bytner then arrived to the melee and tasered Appellant into
submission. This incident was recorded by a camera within the
sally port and the video was played to the jury.
Commonwealth v. Domek, 108 A.3d 126 (Pa.Super. 2014) (unpublished
memorandum) at *1-3.
As a result of the scuffle, CO Bonenberger sustained a shoulder injury
which required surgery. She was unable to return to work for ten months.
Appellant was charged with a number of offenses relating to this encounter.
Following a jury trial, Appellant was found guilty of one count of
aggravated assault for his attack on CO Bonenberger, and acquitted of two
counts of assault by prisoner. The court imposed a sentence of twenty-two
to 120 months incarceration, and Appellant sought review with this Court.
On appeal, Appellant challenged, inter alia, the sufficiency of the evidence
underlying his conviction for aggravated assault. We reviewed the record
and found sufficient evidence that Appellant acted intentionally in causing
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bodily injury to the officers. Id. Appellant did not seek further review
before the Pennsylvania Supreme Court.
On March 16, 2015, Appellant filed a PCRA petition with the aid of
Molly Maguire Gaussa, Esquire, alleging, in part, that trial counsel was
ineffective for failing to object to the jury instruction regarding aggravated
assault. On July 23, 2015, the court issued a Rule 907 notice of its intent to
dismiss Appellant’s PCRA petition without a hearing.
Before the court took action on Appellant’s PCRA petition, Attorney
Maguire Gaussa sought permission to withdraw from her representation.
The court granted permission to withdraw and appointed new counsel,
Heather Kelly, Esquire. On April 11, 2016, Attorney Kelly filed an amended
PCRA petition, which included Appellant’s original claim that trial counsel was
ineffective for failing to object to the allegedly erroneous jury instruction.
The court again issued a Rule 907 notice of its intent to dismiss Appellant’s
amended PCRA petition, and on September 12, 2016, it dismissed that
petition without a hearing.
Following the dismissal of Appellant’s PCRA petition, the court
permitted Attorney Kelly to withdraw from representation and appointed
instant counsel for this appeal. Appellant filed a timely notice of appeal and
complied with the PCRA court’s order to file a Rule 1925(b) concise
statement of errors complained of on appeal. The PCRA court authored its
Rule 1925(a) opinion, and this matter is ready for our review.
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Appellant raises a single question for our consideration:
1. Was trial counsel ineffective in failing to recognize that the mens
rea of recklessness was not an element of the version of
aggravated assault for which Appellant was on trial, and in
failing to object or otherwise correct the trial court’s erroneous
jury charge which permitted the jury to return a guilty verdict
upon a finding that Appellant acted recklessly?
Appellant’s brief at 3.
When reviewing a court’s denial of a PCRA petition, our review is
limited to the evidence of record and the factual findings of the PCRA court.
Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc).
This Court will afford “great deference to the factual findings of the PCRA
court and will not disturb those findings unless they have no support in the
record.” Id. When a PCRA court’s ruling is supported by the evidence of
record and is free of legal error, we will not disturb its decision. Id.
However, we review the court’s legal conclusions de novo. Commonwealth
v. Williams, 141 A.3d 440, 452 (Pa. 2016).
Appellant challenges trial counsel’s stewardship in failing to object to
an inaccurate jury charge. In analyzing a claim of ineffective assistance of
counsel, “we begin with the presumption [that] counsel is effective.”
Commonwealth v. Cousar, 154 A.3d 287, 296 (Pa. 2017) (citation
omitted). In order to succeed on such a claim, an appellant must establish,
by a preponderance of the evidence:
(1) the underlying claim has arguable merit; (2) no reasonable
basis existed for counsel’s actions or failure to act; and (3)
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appellant suffered prejudice as a result of counsel’s error, with
prejudice measured by whether there is a reasonable probability
that the result of the proceeding would have been different.
Id. at 296-297.
Appellant argues that trial counsel rendered ineffective assistance of
counsel when she failed to object to the jury instruction for aggravated
assault under 18 Pa.C.S. § 2702(a)(3), which instructed the jury that it
could find Appellant guilty of aggravated assault if it believed he recklessly
caused bodily injury to CO Bonenberger. The instruction in question reads,
in pertinent part, as follows:
[Appellant] has been charged with aggravated assault
causing bodily injury. If you find [Appellant] guilty of this
offense, you must find that the following elements have been
proven beyond a reasonable doubt[.]
....
And third, that [Appellant] acted intentionally,
knowingly, or recklessly under circumstances manifesting
extreme indifference to the value of human life[.]
....
A person acts recklessly when he consciously disregards a
substantial and unjustifiable risk that bodily injury will result
from his conduct. The risk must be of such a nature and degree
that when considering the nature and intent of [Appellant’s]
conduct and circumstances known to him, its disregard involved
a gross deviation from the standard of care that a reasonable
person would observe in that situation. It is shown by the kind
of reckless conduct which a life threatening injury is certain to
occur.
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N.T. Trial, 7/16/13, at 78-80 (emphasis added). Appellant was charged with
aggravated assault under 18 Pa.C.S. § 2702(a)(3). That section reads:
(a) Offense defined.--A person is guilty of aggravated assault if
he:
....
(3) attempts to cause or intentionally or knowingly causes
bodily injury to any of the officers, agents, employees or
other persons enumerated in subsection (c), in the
performance of duty[.]
18 Pa.C.S. § 2702(a)(3) (emphasis added). Subsection (c) includes
correctional officers. 18 Pa.C.S. § 2702(c). As can be seen from an
examination of the above-quoted statutory language, there is no question,
and the Commonwealth does not dispute, that the jury charge should not
have included recklessness as a sufficient mens rea.
Appellant contends that there could be no reasonable basis for trial
counsel’s failure to object to the jury instruction since there was no benefit
in permitting the jury to convict him under a less onerous standard of
culpability. Further, he argues that he was prejudiced by this failure in that
the evidence showed that CO Bonenberger was injured only accidentally
during the skirmish. Appellant highlights that the jury acquitted him of both
counts of assault by a prisoner under 18 Pa.C.S. § 2703, including one count
for injuries caused to CO Bonenberger, which required the jury to find that
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“it was the intended conscious goal or purpose to cause serious bodily
injury.”1 Appellant’s brief at 13; see 18 Pa.C.S. § 2703(a). Appellant
maintains that, since the jury acquitted him of an offense that required it to
find he intentionally injured CO Bonenberger, it must have likewise
determined that he did not act intentionally when it found him guilty of the
aggravated assault for the same injury. He concludes that, if the jury was
provided with an accurate jury instruction, then it would have similarly
acquitted him of aggravated assault.
Our High Court has previously clarified the proper analytical
considerations when faced with a claim that counsel’s ineffectiveness
prejudiced a defendant. In Commonwealth v. Spotz, 84 A.3d 294, 315
(Pa. 2014), the Supreme Court delineated an appellant’s burden to establish
prejudice. It observed,
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1
Section 2703 enumerates the offense of assault by prisoner. It reads, in
relevant part:
(a) Offenses defined.--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 is guilty of
a felony of the second degree if he, while so confined or
committed or while undergoing transportation to or from such
an institution or facility in or to which he was confined or
committed intentionally or knowingly, commits an assault
upon another with a deadly weapon or instrument, or by any
means or force likely to produce serious bodily injury.
18 Pa.C.S. § 2703(a).
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A defendant raising a claim of ineffective assistance of counsel is
required to show actual prejudice; that is, that counsel’s
ineffectiveness was of such magnitude that it ‘could have
reasonably had an adverse effect on the outcome of the
proceedings.’ This standard is different from the harmless error
analysis that is typically applied when determining whether the
trial court erred in taking or failing to take a certain action. The
harmless error standard . . . states that “whenever there is a
‘reasonable probability’ that an error ‘might have contributed to
the conviction,’ the error is not harmless.” This standard, which
places the burden on the Commonwealth to show that the error
did not contribute to the verdict beyond a reasonable doubt, is a
lesser standard than the [Strickland/Pierce] prejudice
standard, which requires the defendant to show that counsel’s
conduct had an actual adverse effect on the outcome of the
proceedings. This distinction appropriately arises from the
difference between a direct attack on error occurring at trial and
a collateral attack on the stewardship of counsel. In a collateral
attack, we first presume that counsel is effective, and that not
every error by counsel can or will result in a constitutional
violation of a defendant’s Sixth Amendment right to counsel.
Id. (citations and internal brackets omitted); See Strickland v.
Washington, 466 U.S. 668 (1984), Commonwealth v. Pierce, 527 A.2d
973 (Pa. 1987). In order to determine whether a defendant was “actually
prejudiced,” the Supreme Court has weighed the gravity of the error
“against the overwhelming strength of the evidence[.]” Spotz, supra at
317; Commonwealth v. Busanet, 54 A.3d 35, 43-44 (Pa. 2012)
(considering the “overwhelming evidence of guilt” in finding the defendant
was not prejudiced by the introduction of evidence of a prior bad act).
In denying Appellant’s petition, the PCRA court found that Appellant
could not establish that he was prejudiced by trial counsel’s failure to object
to the erroneous jury instruction. In so finding, it observed that this Court
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previously ruled that the evidence was sufficient for the jury to determine
that Appellant “clearly . . . intended to cause bodily injury to the officers,
including Bonenberger, which his combative behavior.” Trial Court Opinion,
2/6/17, at 5; Domek, supra at *10. Essentially, the PCRA court, without
stating so, invoked the law of the case doctrine to support its decision. See
Commonwealth v. Gacobano, 65 A.3d 416, 419 (Pa.Super. 2013) (noting
“[t]he law of the case doctrine refers to a family of rules which embody the
concept that a court involved in the later phases of a litigated matter should
not reopen questions decided by another judge of that same court of by a
higher court in the earlier phases of the matter[.]”).
We observe that this Court’s previous ruling, that the evidence
proffered by the Commonwealth was sufficient to support Appellant’s
conviction, does not constitute the law of the case for our present purposes.
On direct appeal, our standard of review required us to view the evidence in
the light most favorable to the Commonwealth as verdict winner. Domek,
supra at *6. We are not guided by that principle herein, since our
assessment is centered upon considering the strength of the evidence
presented against the prejudice caused by counsel’s ineffectiveness. Spotz,
supra. As we are reviewing the instant issue under a different
jurisprudential framework, we are not bound by our prior holding.
Instantly, the inclusion of an erroneous mens rea reducing the level of
culpability required to find Appellant guilty of aggravated assault was a
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critical mistake that “could have reasonably had an adverse impact on the
outcome of the proceedings.” Spotz, supra at 315. The extent of this
mistake is highlighted when we consider that the jury’s verdict could very
well have been premised upon a finding that Appellant recklessly caused CO
Bonenberger’s injuries since the jury acquitted Appellant of an offense that
required it to find that he intentionally or knowingly harmed her.
Moreover, upon review of the certified record, we cannot conclude that
the evidence tending to show that Appellant intentionally or knowingly
injured CO Bonenberger was so overwhelming as to overcome the prejudice
caused by the erroneous jury instruction.2 The testimony offered by the
Commonwealth does not clearly support the conclusion that Appellant acted
intentionally or knowingly. Rather, it tends to show that Appellant merely fell
backwards onto CO Bonenberger while he was being restrained by two other
officers. See N.T. Trial, 7/15/13, at 107-114, 122. Indeed, CO
Bonenberger herself testified as to the mechanism of her injury, stating,
“[a]ctually, we went all crashing down. I had three men fall on top of me.”
Id. at 122.
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2
Despite efforts by this Court to obtain the video recording of the incident in
question, that exhibit was not made part of the certified record, and,
according to this Court’s prothonotary, was no longer available as a
supplement to the record under Pa.R.A.P. 1926.
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Based on the record before us, we cannot conclude that the evidence
of Appellant’s guilt was so overwhelming that the outcome of the trial would
not have been different if trial counsel had objected to the erroneous jury
charge. In light of the nature of legal error in question, and the verdict
rendered herein, we find that Appellant has established that trial counsel’s
ineffectiveness had an adverse impact on the outcome of his trial.
Accordingly, we reverse the order of the PCRA court. As the particulars of
this case raise a question of law, we do not need to remand this matter to
the PCRA court for an evidentiary hearing. See Commonwealth v. Kyle,
874 A.2d 12, 23 (Pa. 2005) (reversing Superior Court order to remand to
PCRA court for further evidentiary hearing since, regardless of facts found on
remand, issue raised a question of law). Rather, we remand for a new trial.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/2017
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Commonwealth v. Domek
Combined Opinion