Com. v. Bologna, J. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JOSEPH BOLOGNA : No. 1967 EDA 2021
Appeal from the Order Entered August 31, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): MC-51-CR-0011373-2020
BEFORE: BOWES, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 14, 2023
The Commonwealth of Pennsylvania (“Commonwealth”) appeals from
the August 31, 2021 order granting the Commonwealth’s motion to refile
simple assault and possession of instrument of crime (“PIC”) charges against
Joseph Bologna (“Appellee”), but denying the Commonwealth’s request to
refile two counts of aggravated assault and one count of recklessly
endangering another person (“REAP”) due to a lack of evidence. We affirm.
On June 1, 2020, at approximately 6:00 p.m., an incident occurred at
229 North 22nd Street in Philadelphia involving Appellee, an on-duty,
uniformed Philadelphia Police Officer, and Evan Gorski (“Gorski”), a protestor.
See N.T. Preliminary Hearing, 1/15/21, at 10-11. Gorski had been marching
in what began as a peaceful protest. Appellee was the commander of a police
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* Retired Senior Judge assigned to the Superior Court.
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bicycle patrol deployed to prevent protestors from entering an off-ramp to
Interstate 676. At some point the protest devolved into a “chaotic scene,” as
protestors knocked down a permanent fixture fence, jumped on top of stopped
vehicles, and threw various debris at the officers. Id. at 12, 48-49.
Accordingly, the “police . . . created a line and were slowly pushing the line
forward and giving commands to move. At the same time while everybody
was stepping back, they were also grabbing and pulling people in towards
their line.” Id. at 12. Gorski explained that the officers appeared to be
arresting the protestors that they pulled in towards the line.
During this time, Gorski observed an unknown protestor being “brought
into the line” and attempted to interfere with his arrest by “pull[ing] the
protestor back.” Id. at 12. As he attempted to retrieve the protestor,
Appellee struck him with a collapsible metal baton. Both men fell to the
ground and Gorski sustained a head injury from the encounter. Thereafter,
Gorski was taken to Thomas Jefferson University Hospital for treatment, where
he received staples and stiches to close a head wound. He was then released
without charges. Meanwhile, Appellee was arrested and charged with first-
degree aggravated assault, second-degree aggravated assault, simple
assault, REAP, and PIC.
On August 31, 2021, Gorski testified at Appellee’s preliminary hearing,
admitting that he had attempted to interfere with the arrest of another
protestor before Appellee hit him in the head with his baton. The
Commonwealth also admitted a video of the incident, which showed Gorski
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interfering with an arrest and Appellee hitting him in the shoulder with the
baton. Afterwards, both men fell to the ground and a brief struggle ensued.
Gorski testified that he sustained a bruise on his shoulder and a head injury
that required stitches and twelve staples. Appellee presented testimony from
a police use-of-force expert, who opined that Appellee’s actions were
consistent with department policy. At the conclusion of the hearing, the court
dismissed all charges for a lack of evidence.
The Commonwealth filed a motion in the Court of Common Pleas to refile
the charges. On January 15, 2021, the trial court conducted a hearing on the
Commonwealth’s motion. At the hearing, the Commonwealth moved into
evidence the notes of testimony from the original preliminary hearing, the
video of the incident, Gorski’s medical records, and photographs of his
injuries. The parties stipulated that Gorski received twelve staples in his head
on June 1, 2020. N.T., 8/31/21 at 15. Appellee relied on expert testimony
from the preliminary hearing and admitted two reports from the medical
examiner concluding that contact with Appellee’s bicycle helmet during the fall
was the cause of Gorski’s scalp laceration. Id. at 20.
After viewing the video several times, the trial court found that the
Commonwealth met its burden to establish a prima facie case for simple
assault and PIC. However, the court concluded that the Commonwealth did
not present sufficient prima facie evidence that Gorski was seriously injured,
that Appellee acted with the specific intent to cause serious bodily injury, that
Appellee placed Gorski in danger of death or serious bodily injury, or that the
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baton constituted a deadly weapon given the way it was used. See Trial Court
Opinion, 3/4/22, at 7-9. Accordingly, the court determined that the
Commonwealth did not meet its burden to establish a prima facie case for
either aggravated assault or REAP charges and denied the motion to refile
those counts.
This timely Commonwealth appeal challenging the denial of its motion
to refile the two aggravated assault and one REAP charges followed. Both the
Commonwealth and the trial court have complied with the mandates of
Pa.R.A.P. 1925, and this appeal is properly before us. See Commonwealth
v. Lambert, 244 A.3d 38, 41 (Pa.Super. 2020) (an order discharging an
accused constitutes a final order subject to appellate review). The
Commonwealth presents the following issue for our review:
Did the lower court err in denying the Commonwealth’s motion to
refile aggravated assault and [REAP] charges against [Appellee]
where the evidence, when viewed in the proper light and accepted
as true, established a prima facie case that [Appellee] committed
these crimes and that he was not justified in doing so?
Commonwealth’s brief at 4.
“It is well-settled that the evidentiary sufficiency, or lack thereof, of the
Commonwealth’s prima facie case for a charged crime is a question of law as
to which an appellate court’s review is plenary.” Commonwealth v. Hilliard,
172 A.3d 5, 12 (Pa.Super. 2017) (citation and internal quotation marks
omitted). “[T]he trial court is afforded no discretion in ascertaining whether,
as a matter of law and in light of the facts presented to it, the Commonwealth
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has carried its pre-trial, prima facie burden to make out the elements of a
charged crime.” Commonwealth v. Karetny, 880 A.2d 505, 513 (Pa. 2005).
Therefore, we are not bound by the legal determinations of the trial court and
our standard of review is de novo. Id.“The purpose of a preliminary hearing is to avoid the incarceration or
trial of a defendant unless there is sufficient evidence to establish a crime was
committed and the probability the defendant could be connected with the
crime.” Commonwealth v. Jackson, 849 A.2d 1254, 1257 (Pa.Super. 2004)
(internal citation omitted). Our Supreme Court has described the
Commonwealth’s burden at the preliminary hearing as follows.
At the preliminary hearing stage of a criminal prosecution, the
Commonwealth need not prove the defendant’s guilt beyond a
reasonable doubt, but rather, must merely put forth sufficient
evidence to establish a prima facie case of guilt. A prima facie
case exists when the Commonwealth produces evidence of each
of the material elements of the crime charged and establishes
probable cause to warrant the belief that the accused committed
the offense. Furthermore, the evidence need only be such that, if
presented at trial and accepted as true, the judge would be
warranted in permitting the case to be decided by the jury.
Karetny, supra at 513-14 (citations omitted, emphasis added). “The weight
and credibility of the evidence are not factors at the preliminary hearing stage,
and the Commonwealth need only demonstrate sufficient probable cause to
believe the person charged has committed the offense.” See
Commonwealth v. Perez, 249 A.3d 1092, 1102 (Pa. 2021). “[I]nferences
reasonably drawn from the evidence of record which would support a verdict
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of guilty are to be given effect and the evidence must be read in the light most
favorable to the Commonwealth’s case.” Id. at 1102.
The Commonwealth contends that it presented a prima facie case to
establish first-degree aggravated assault, second-degree aggravated assault,
and REAP. A person commits first-degree aggravated assault if he “attempts
to cause serious bodily injury to another, or causes such injury intentionally,
knowingly or recklessly under circumstances manifesting extreme indifference
to the value of human life.” 18 Pa.C.S. § 2702(a)(1). Criminal attempt occurs
when a person, with the intent to commit a specific crime, does any act which
constitutes a substantial step toward the commission of that crime. See 18
Pa.C.S. § 901(a). Serious bodily injury is defined as “bodily injury which
creates a substantial risk of death, or which causes serious, permanent,
disfigurement, or protracted loss or impairment of the function of any bodily
member or organ.” 18 Pa.C.S. § 2301.
A person commits second-degree aggravated assault if he “attempts to
cause or intentionally or knowingly causes bodily injury to another with a
deadly weapon.” 18 Pa.C.S. § 2702(a)(4). Bodily injury is defined as an
“impairment of physical condition or substantial pain.” 18 Pa.C.S. § 2301. A
deadly weapon includes “any device designed as a weapon and capable of
producing death or serious bodily injury, or any other device or instrumentality
which, in the manner in which it is used or intended to be used, is calculated
or likely to produce death or serious bodily injury.” 18 Pa.C.S. § 2301.
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Finally, a person commits REAP “if he recklessly engages in conduct
which places or may place another person in danger of death or serious bodily
injury.” 18 Pa.C.S. § 2705. REAP is a lesser-included offense of aggravated
assault and where the evidence is sufficient to support a claim of aggravated
assault it is also sufficient to support a claim of REAP. See Commonwealth
v. Smith, 956 A.2d 1029, 1036 (Pa.Super. 2008) (en banc).
The Commonwealth maintains that it presented sufficient prima facie
evidence that Appellee committed these crimes since, at the preliminary
hearing stage, the court must accept the Commonwealth’s proffered evidence
as true. See Commonwealth’s brief at 16. In its view, since Gorski testified
that Appellee struck him with the baton in his head, notwithstanding the video
to the contrary, we must find that fact established. Id. at 18-19. Accordingly,
because it is well-established that the use of a deadly weapon on a vital part
of the body is sufficient to establish a specific intent to kill, the Commonwealth
contends that Appellee’s intent to cause the level of bodily injury required for
the respective charges can be inferred from the circumstances. Id. at 18
(citing to Commonwealth v. Nichols, 692 A.2d 181, 184-85 (Pa.Super.
1997)).
However, the trial court disagreed with the Commonwealth, crediting
the video over Gorski where the two pieces of Commonwealth evidence
conflicted and finding that the Commonwealth failed to present sufficient
evidence that Gorski suffered serious bodily injury or that Appellee possessed
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a specific intent to cause serious bodily injury needed to establish a prima
facie case of first-degree felony aggravated assault. See Trial Court Opinion,
at 6. Instead, the court found that the video depicted a “very chaotic scene”
during which Appellee only struck Gorski one time with the baton in order to
stop Gorski from continuing to interfere with the arrest of another protestor.
Id. at 6-7. Regarding the second-degree aggravated assault charge, the trial
court found that the Commonwealth had not shown intent to cause bodily
injury or presented prima facie evidence proving that the baton constituted a
deadly weapon in the manner in which it was used. Id. at 8. Finally, the
court found insufficient evidence to support the REAP charge, since the video
did not show that Appellee placed Gorski in danger of death or serious bodily
injury, but instead, merely responded to Gorski’s attempt to interfere with
Appellee’s effort to arrest another protester. Id. at 9.
Preliminarily, we disagree with the Commonwealth’s contention that we
must accept Gorski’s testimony that he was hit in the back of the head by the
baton, despite a video of the incident to the contrary. It is well-settled that
“where the testimony of a witness is contradicted by incontrovertible physical
facts, the testimony of such witness cannot be accepted.” See
Commonwealth v. Smarr, 220 A.3d 633 (Pa.Super. 2019) (non-
precedential decision at *10) (quoting Commonwealth v. Newman, 470
A.2d 976, 979 (Pa.Super. 1984)). Herein, Gorski’s testimony clearly
contradicted the video evidence regarding the part of the body where that the
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baton made contact. Thus, we find that the trial court reasonably relied upon
the video, instead of Gorksi’s testimony, regarding an injury that was
sustained outside Gorski’s range of visibility during a “chaotic scene.”
Accordingly, we discern no error based on the trial court’s reliance on the
video, which the Commonwealth presented.
Our review of the video of the incident, which was presented by the
Commonwealth at the hearing, supports the trial court’s conclusions. The
video evidence depicted a “chaotic scene” during which Gorski can be seen
moving in the direction of Appellee and using his hand to pull a protestor away
from the police. In a matter of seconds, Appellee responds by raising his
baton towards Gorski. Gorski then stops trying to interfere with the arrest of
the other protestor and takes a step backwards while Appellee simultaneously
strikes him one time with the baton on the shoulder near the base of the neck.
Appellee made no further attempts to strike Gorski with the baton as the two
fell to the ground and Appellee placed Gorski under arrest.
Since Appellee only struck Gorski one time near the base of the neck
and did not continue to engage in combative conduct once on the ground, we
find that the trial court did not err when it found that the Commonwealth failed
to establish a prima facie case of the intent elements of first-degree and
second-degree felony aggravated assault. Furthermore, the Commonwealth
did not elicit any testimony or offer any evidence suggesting that the manner
in which Appellee utilized the baton constituted a deadly weapon necessary to
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support a prima facie case of second-degree felony aggravated assault. See
18 Pa.C.S. § 2301; see also Commonwealth v. Cornish, 589 A.2d 718, 721
(Pa.Super. 1991) (finding fireplace poker qualified as a deadly weapon after
the defendant repeatedly struck the victim with it during a robbery, inflicting
serious bodily injury). Finally, the video depicts Appellee making a single
strike with his baton to thwart a protestor’s attempt to interfere with an arrest,
not cause him to suffer serious bodily injury. Thus, we also conclude that the
Commonwealth failed to establish a prima facie case that Appellee recklessly
placed Gorski in danger of death or serious bodily injury. See
Commonwealth v. Bostian, 232 A.3d 898, 912 (Pa.Super. 2020) (defining
recklessness as a conscious disregard of a substantial and unjustifiable risk of
harm to others).
Thus, we conclude that the Commonwealth has not satisfied its
preliminary burden of establishing a prima facie case for aggravated assault
and REAP.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/2023
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