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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JAMES LAMONT DOMEK, : No. 1822 WDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, October 18, 2013,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0016570-2012
BEFORE: FORD ELLIOTT, P.J.E., WECHT AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 29, 2014
James Lamont Domek appeals from the judgment of sentence of
October 18, 2013, following his conviction of one count of aggravated
assault. We affirm.
The trial court has aptly summarized the facts of this matter as
follows:
Pittsburgh Police Officer Vincent Pacheco
testified that while on duty on August 29, 2012, he
had a conversation with Appellant lasting
approximately fifteen minutes. Officer Pacheco
observed Appellant’s tone of voice as loud, angry,
resentful and uncooperative, and Appellant was
swearing at the Officer. Eventually, Officer Pacheco
arrested Appellant and called for a police car with a
cage to transport Appellant to jail.
David Dabrowski, a Corrections Officer (“CO”)
at Allegheny County Jail, testified to the events
which transpired at the jail once Appellant arrived.
* Retired Senior Judge assigned to the Superior Court.
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Dabrowski stated that generally, as a defendant
arrives at the sally port, he is uncuffed by the police
department and asked to empty all of the contents of
his pockets onto a bench. Then, he is asked to place
his hands flat against a wall and step back, and a CO
conducts a pat down search. Once the pat down is
completed, the arrestee is instructed to sit on the
bench, place his fingers around his gums and
underneath his tongue as a CO inspects the inside of
the arrestee’s mouth. Finally, the arrestee’s shoes
and socks are removed and searched.
When Appellant arrived at the sally port on
August 29, 2012, he initially complied with the
search of his person. However, when Appellant was
asked to place his fingers inside his mouth, he
became noncompliant, using profanity at
CO Dabrowski.[1] The CO gave him several
opportunities to comply and warned Appellant that if
he continued in his non-compliance, Dabrowski
would have to assist him in opening his mouth.
According to Dabrowski, Appellant replied, “Fuck
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
1
Dabrowski testified that appellant stated, “you better fuckin’ get me
something to clean my fuckin’ hands with.” (Notes of testimony, 7/15/13 at
61.) According to appellant, his hands were dirty from placing them on
Officer Pacheco’s unmarked police car earlier, and he asked Dabrowski for
something to wipe them off before placing them in his mouth. (Id. at 146.)
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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. Bytner
and Bonenberger testified similarly to Dabrowski’s
description of the incident, with Bonenberger stating
that she suffered significant injury as a result thereof
which prevented her from returning to work some
ten months later. Specifically, Bonenberger testified
that she suffered a torn meniscus which required
surgery, as well as an injured hip, and that she
remains in constant pain.
Trial court opinion, 2/24/14 at 3-4 (citations to the record omitted).
Appellant was charged with two counts of aggravated assault,
18 Pa.C.S.A. § 2702(a)(3); two counts of assault by prisoner, 18 Pa.C.S.A.
§ 2703(a); and one count of false identification to law enforcement
authorities, 18 Pa.C.S.A. § 4914(a). Following a preliminary hearing on
December 11, 2012, the Commonwealth withdrew the charge of false
identification. (Notes of testimony, 12/11/12 at 29.) In addition, the
Commonwealth withdrew the count of assault by prisoner as to
CO Dabrowski. (Id.) The three remaining charges, two of aggravated
assault and one of assault by prisoner, were held over for court. (Id. at 31,
34.) However, the criminal information listed only one count of aggravated
assault as to CO Bonenberger, and two counts of assault by prisoner.
The matter proceeded to a jury trial on July 15-16, 2013, following
which appellant was found guilty of the count of aggravated assault, and not
guilty of the two counts of assault by prisoner. On October 18, 2013,
appellant was sentenced to 22 to 120 months’ incarceration. A timely notice
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of appeal was filed on November 14, 2013. That same date, appellant was
ordered to file a concise statement of errors complained of on appeal within
21 days pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A. Appellant timely
complied on December 4, 2013; and on February 24, 2014, the trial court
filed a Rule 1925(a) opinion.
Appellant has raised the following issues for this court’s review:
1. The trial court erred when it proceeded with
charges that were dismissed at the
[p]reliminary hearing for the offenses charged.
2. Appellant[’]s attorney did not cross examine
witnesses in which Appellant had anticipated to
be questioned on cross examination.
3. The statutory elements of Aggravated Assault
were not met by the evidence presented.
Appellant’s brief at 4-5.
In his first issue on appeal, appellant points out that he was supposed
to be bound over for trial on two counts of aggravated assault, and one
count of assault by prisoner. (Id. at 8.) Instead, he proceeded to trial on
one count of aggravated assault, and two counts of assault by prisoner.
(Id.) As the trial court observes, the issue is moot because appellant was
found not guilty of both counts of assault by prisoner. (Trial
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court opinion, 2/24/14 at 4.) Appellant cannot possibly show how he was
prejudiced by this error. (Id.)2
In his second issue on appeal, appellant argues that trial counsel was
ineffective for failing to cross-examine two witnesses, CO Bonenberger and
Sergeant Bytner. As the trial court recognizes, this claim must be deferred
until collateral review. (Trial court opinion, 2/24/14 at 5.) Our supreme
court held in Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), that
defendants should wait until the collateral review phase to raise claims of
ineffective assistance of counsel. Nor do either of the exceptions to the
Grant rule outlined in Commonwealth v. Holmes, 79 A.3d 562 (Pa.
2013), apply.
In his third and final issue on appeal, appellant claims that the
evidence was insufficient to sustain the jury’s verdict. Appellant argues that
the Commonwealth failed to make out the intent element of aggravated
assault.
2
In addition, appellant offers no argument or analysis whatsoever in support
of this issue. As such, we could find the issue waived. See
Commonwealth v. Murchinson, 899 A.2d 1159, 1162 (Pa.Super. 2006)
(applying Pa.R.A.P. 2119(a) to find waiver where the appellant failed to
develop meaningful argument with specific reference to the record in support
of his claims) (citations omitted); Commonwealth v. Hakala, 900 A.2d
404, 407 (Pa.Super. 2006), appeal denied, 909 A.2d 1288 (Pa. 2006)
(finding waiver where the appellant failed to offer either analysis or case
citation in support of his request for relief, admonishing that “[i]t is not this
Court’s function or duty to become an advocate for the appellants”), quoting
Commonwealth v. Birdseye, 637 A.2d 1036, 1043 (Pa.Super. 1994).
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When reviewing a sufficiency claim, we employ the
following standard of review:
The standard we apply when reviewing
the sufficiency of the evidence is whether
viewing all the evidence admitted at trial
in the light most favorable to the verdict
winner, there is sufficient evidence to
enable the fact-finder to find every
element of the crime beyond a
reasonable doubt. In applying the above
test, we may not weigh the evidence and
substitute our judgment for the
fact-finder. In addition, we note that the
facts and circumstances established by
the Commonwealth need not preclude
every possibility of innocence. Any
doubts regarding a defendant’s guilt may
be resolved by the fact-finder unless the
evidence is so weak and inconclusive
that as a matter of law no probability of
fact may be drawn from the combined
circumstances. The Commonwealth may
sustain its burden of proving every
element of the crime beyond a
reasonable doubt by means of wholly
circumstantial evidence. Moreover, in
applying the above test, the entire
record must be evaluated and all
evidence actually received must be
considered. Finally, the trier of fact while
passing upon the credibility of witnesses
and the weight of the evidence produced
is free to believe all, part or none of the
evidence.
Commonwealth v. Gray, 867 A.2d 560, 567 (Pa.Super. 2005), appeal
denied, 879 A.2d 781 (Pa. 2005), quoting Commonwealth v.
Nahavandian, 849 A.2d 1221, 1229-1230 (Pa.Super. 2004) (citations
omitted).
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Appellant was found guilty of second-degree aggravated assault under
18 Pa.C.S.A. § 2702(a)(3), which provides:
§ 2702. Aggravated assault
(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.A. § 2702(a)(3).
(c) Officers, employees, etc., enumerated.--
The officers, agents, employees and other
persons referred to in subsection (a) shall be
as follows:
(9) Officer or employee of a
correctional institution, county jail
or prison, juvenile detention center
or any other facility to which the
person has been ordered by the
court pursuant to a petition
alleging delinquency under
42 Pa.C.S. Ch. 63 (relating to
juvenile matters).
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18 Pa.C.S.A. § 2702(c)(9).3
It is not disputed that CO Bonenberger sustained bodily injury, i.e., a
torn meniscus requiring surgery and physical therapy. Therefore, we will
focus on the intent element of aggravated assault. “[I]ntent may be shown
by circumstances which reasonably suggest that a defendant intended to
cause injury.” Commonwealth v. Brown, 23 A.3d 544, 560 (Pa.Super.
2011) (en banc) (citation omitted).4
3
In his brief, appellant appears to confuse the various subsections of the
statute. For example, he argues that the evidence was insufficient to prove
he acted at least recklessly in causing CO Bonenberger serious bodily injury.
(Appellant’s brief at 10-11.) However, an attempt to cause or intentionally,
knowingly, or recklessly causing serious bodily injury to an enumerated
person while in the performance of duty is a first-degree felony under
18 Pa.C.S.A. § 2702(a)(2). Appellant was convicted of aggravated assault
as a second-degree felony under 18 Pa.C.S.A. § 2702(a)(3), which does not
require serious bodily injury, but does require actual intent, not mere
recklessness. As observed by the Commonwealth, the confusion may stem
from the trial court’s jury instructions, which included recklessness as an
element of aggravated assault. (Commonwealth’s brief at 16-17; notes of
testimony, 7/16/13 at 79-80.) However, appellant did not object to the trial
court’s erroneous instruction, nor does he raise the issue on appeal. At any
rate, we find the evidence was sufficient to prove the intent element of
Subsection (a)(3).
4
We note that we could find the issue waived, as appellant included only a
boilerplate challenge to the sufficiency of the evidence in his Rule 1925(b)
statement. (Docket #12.) Appellant did not specify which element or
elements of aggravated assault were not proven. See Commonwealth v.
Williams, 959 A.2d 1252, 1257 (Pa.Super. 2008) (“[i]f Appellant wants to
preserve a claim that the evidence was insufficient, then the 1925(b)
statement needs to specify the element or elements upon which the
evidence was insufficient. This Court can then analyze the element or
elements on appeal.”).
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Officer Pacheco testified that when he came into contact with
appellant, appellant was loud, angry, and uncooperative. (Notes of
testimony, 7/15/13 at 46.) When he arrived at the county jail, appellant
refused to allow CO Dabrowski to search the inside of his mouth for
contraband. Dabrowski testified that appellant swore at him and demanded
something to clean off his hands. (Id. at 54.) When Dabrowski informed
him that if he refused to comply, Dabrowski would have to assist him in
opening his mouth, appellant replied, “Fuck you, go ahead.” (Id. at 55.)
Appellant then smacked his hand away and took a swing at Dabrowski.
(Id.) At this point, CO Bonenberger grabbed appellant by the hair. (Id.)
Appellant was screaming, “get the fuck off of me.” (Id.)
In the ensuing melee involving appellant, Dabrowski, Bonenberger,
and a City of Pittsburgh police officer, Bonenberger ended up at the bottom
of the pile. (Id. at 55, 122.) Bonenberger testified that after appellant tried
to punch Dabrowski,
Then I grabbed him from behind so he couldn’t make
contact with Officer Dabrowski and I believe he
turned on me and Officer Dabrowski also grabbed
him and we were just in the whole altercation and
Officer Loughren who was the transporting officer, he
came running in to assist us while we were fighting.
Id. at 126. Appellant continued to resist and refused to allow the officers to
handcuff him. (Id. at 55, 131.) Finally, Sergeant Bytner entered the room
and gave appellant a direct order to comply. (Id. at 131.) Sergeant Bytner
testified that appellant continued to be combative. (Id.) Sergeant Bytner
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discharged his taser into appellant’s upper back. (Id.) Even after being
tased, appellant continued to resist, but the officers were able to get the
handcuffs on him and appellant was placed in a restraint chair. (Id. at 56,
131.)
Clearly, the evidence was sufficient for the jury to find that appellant
intended to cause bodily injury to the officers, including Bonenberger, with
his combative behavior.5 See Brown, supra (it was within the jury’s
province to find that the defendant, by throwing one officer to the ground
and then striking another officer repeatedly by wildly flailing his arms as he
resisted arrest, intended to cause injury to the officers). The jury saw video
evidence of the fight inside the sally port and was free to disbelieve
appellant’s account of the incident. Appellant’s sufficiency claim fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/29/2014
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5
We note that Dabrowski also suffered a bruise to his right forearm. (Notes
of testimony, 7/15/13 at 56.)
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