Com. v. Rosario, D. ( 2023 )


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  • J-S45037-23
    
    2023 PA Super 273
    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    DAVID ANTHONY ROSARIO                        :
    :
    Appellant               :   No. 372 MDA 2023
    Appeal from the Judgment of Sentence Entered February 7, 2023
    In the Court of Common Pleas of Cumberland County Criminal Division at
    No(s): CP-21-CR-0002944-2021
    BEFORE:      BOWES, J., LAZARUS, J., and STEVENS, P.J.E.*
    OPINION BY STEVENS, P.J.E.:                        FILED: DECEMBER 27, 2023
    Appellant David Anthony Rosario appeals from the judgment of sentence
    entered in the Court of Common Pleas of Cumberland County following his
    conviction by a jury on the charges of aggravated assault (serious bodily injury
    to an enumerated person), aggravated assault (bodily injury to an
    enumerated person), and assault by prisoner.1          After a careful review, we
    affirm.
    The relevant facts and procedural history are as follows: On January 5,
    2022, the Commonwealth filed an Information charging Appellant, an inmate
    ____________________________________________
    * Former Justice specially assigned to the Superior Court.
    1 18 Pa.C.S.A. §§ 2702(a)(2), 2702(a)(3), and 2703(a)(1)(ii), respectively.
    J-S45037-23
    at SCI-Camp Hill, with the crimes indicated supra.2     On August 29, 2022,
    Appellant, who was represented by counsel, proceeded to a jury trial at which
    the Commonwealth presented the testimony of C.O. Brandon Alexander,
    Lieutenant Jossuan Rivera, and Corporal Hilary Faust. Appellant testified on
    his own behalf.
    C.O Alexander testified he has been a corrections officer at SCI-Camp
    Hill for six years. N.T., 8/30/22, at 21. As part of his normal job duties, he
    conducts security rounds to ensure the inmates are safe in their cells, as well
    as monitors the flow of inmates to ensure there is order within the prison. Id.
    C.O. Alexander indicated that, on July 9, 2021, he was working from
    2:00 p.m. to 10:00 p.m., and he was assigned to the E Block, which has
    approximately sixty cells arranged in four pods. Id. at 22. The pods are
    triangular shaped with two tiers of cells. Id. Each cell houses one inmate,
    and the cells’ doors, which operate mechanically, are usually closed and
    locked. Id. at 23.
    C.O. Alexander explained that a cell’s door opens and closes when its
    corresponding button is pressed in the control bubble unit, which is accessible
    only by corrections officers and employees. Id. Pursuant to prison protocol,
    when a cell door is opened, two corrections officers stand by the cell’s door
    ____________________________________________
    2 The Commonwealth also charged Appellant with simple assault, 18 Pa.C.S.A.
    § 2701(a)(1), and recklessly endangering another person, 18 Pa.C.S.A. §
    2705. However, the Commonwealth withdrew these two charges prior to trial.
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    while another corrections officer presses the button in the control bubble. Id.
    C.O. Alexander noted that, on the E block, inmates are not permitted to roam
    or be in common areas. Id. at 24. C.O. Alexander testified Appellant was
    housed in the B pod of E Block, and prior to July 9, 2021, C.O. Alexander had
    no “dealings with him.” Id. at 25.
    On July 9, 2021, while C.O. Alexander checked the cells and conducted
    a security round, he “got to right around [Appellant’s] cell door, [Appellant]
    was able to get [the door] open, and [Appellant] rushed [C.O. Alexander] and
    assaulted [him].” Id. C.O. Alexander explained that he was approximately
    two cells away from Appellant’s cell when Appellant’s cell door unexpectedly
    opened.   Id. at 26.    Appellant “sprinted right at [C.O. Alexander]” and
    immediately punched him “square in the face” with a “closed fist.” Id. at 27.
    Appellant punched C.O. Alexander approximately thirty more times with a
    closed fist with each punch landing on C.O. Alexander’s head or face. Id.
    During the assault, C.O. Alexander “started stumbling” and “ended up
    against the wall and eventually [he fell] to the floor.” Id. at 28. While he was
    on the floor, he tried to cover his head with his arms while Appellant continued
    to punch him in the head and face. Id. C.O. Alexander feared that Appellant
    was trying to “either knock [him] out or kill [him].” Id. at 31. Eventually,
    other corrections officers, who had heard the assault, arrived on the scene,
    and they “forcibly removed” Appellant, who was still punching C.O. Alexander,
    by placing him in a bear hug. Id. at 29.
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    C.O. Alexander testified that, after the other corrections officers pulled
    Appellant off him, he was able to stand and walk to the lieutenant’s office
    where a prison nurse examined him and sent him to a local hospital. Id. at
    31-32. C.O. Alexander received a CAT scan, which was negative for brain
    injuries; however, C.O. Alexander was diagnosed with extensive contusions
    and swelling to his face, as well as cuts to his head. Id. at 32-34. He also
    had some bruising to his arm where Appellant had punched him while he was
    covering his head, as well as soreness to his knees from when he fell to the
    floor. Id. at 38, 42. It took approximately two weeks for the swelling and
    bruising to resolve, and C.O. Alexander noted his injuries were painful. Id. at
    35-39. He was off work and on medical leave for approximately six months.
    Id. at 40.
    C.O. Alexander explained that, when Appellant began punching him, no
    other corrections officers were in the vicinity because all of the cell doors on
    the E block, including Appellant’s cell door, were supposed to be closed and
    locked. Id. at 28. C.O. Alexander testified that, prior to the July 9, 2021,
    incident, he neither observed nor heard of a prison door at SCI-Camp Hill
    opening unexpectedly without a corrections officer or employee pressing the
    appropriate button to open it. Id.
    On cross-examination, C.O. Alexander noted another corrections officer
    was in the control bubble watching the E Floor while he conducted the security
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    check. Id. at 44-45. He admitted that inmates are generally aware that there
    are security cameras in the prison. Id.
    On redirect examination, C.O. Alexander reiterated that, during the
    assault, he believed Appellant was trying to knock him out or kill him. Id. at
    45.   He noted Appellant punched him “hard” with his “full strength,” and
    Appellant did not stop punching him until “someone pulled him off of [him].”
    Id. at 45-46. He testified that, even as the other corrections officers pulled
    Appellant off him, Appellant “was still trying to hit [him].” Id. at 46. C.O.
    Alexander testified he was surprised when Appellant exited his cell and
    immediately began punching him, and Appellant was hitting him “hard enough
    that [he] couldn’t process [his] thoughts together or retain [his] thoughts”
    during the attack. Id. at 45.
    Lieutenant Rivera testified that, on July 9, 2021, he was the lieutenant
    in charge of the E Block, and he worked from 2:00 p.m. to 10:00 p.m. Id. at
    48-49.   He confirmed the cells in the E Block are generally locked, and to
    unlock a cell’s door, a control officer must “hit an override and then hit the
    cell button door.” Id. at 50. He further confirmed that, pursuant to prison
    protocol, before a cell door is opened, two corrections officers must be
    positioned outside the cell door, and the inmate’s hands must be handcuffed.
    Id. He noted that, during the eight years he has worked at SCI-Camp Hill,
    except for the instant incident, he has never heard of an instance where an
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    inmate had “gotten the door open when it was not supposed to be open[.]”
    Id.
    Lieutenant Rivera testified that, on July 9, 2021, while he was talking to
    his sergeant on the A pod of E Block, he heard “a loud noise.” Id. He looked
    over to the B pod of E Block, saw “Appellant was out of his cell, and [he]
    noticed that [C.O.] Alexander was on the floor.” Id. at 51. “[Appellant] was
    on top of him swinging at him with closed fists about his head and body area.”
    Id. C.O. Alexander was “on his knees trying to like tuck his head while he
    was on the floor[.]” Id.       Meanwhile, Appellant was “on top of [C.O.
    Alexander’s] back, just swinging down on him, trying to hit him with closed
    fists on his head and body area.” Id. The lieutenant clarified Appellant was
    “punching” C.O. Alexander “in the head area.” Id. at 52. He noted Appellant
    was not supposed to be out of his cell. Id.
    Lieutenant Rivera testified his sergeant ran over to assist C.O. Alexander
    while the lieutenant alerted the rest of the corrections officers on the E Block
    to assist with the assault. Id.     As other corrections officers responded,
    Lieutenant Rivera called the institutional control and medical to advise that
    medical assistance would be needed.         Id.   He then ran to assist C.O.
    Alexander.   Id.   He indicated that, in total, it took five or six correctional
    officers to restrain Appellant. Id. He indicated that C.O. Alexander’s face was
    “very bruised,” his eyes were “swollen shut,” and “he was really disoriented.”
    Id. at 53.   He confirmed C.O. Alexander was initially examined by prison
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    medical personnel; however, he was then transported to an area hospital for
    further treatment and evaluation. Id. He also confirmed C.O. Alexander was
    off from work for six months for a work-related injury from the instant assault.
    Id. at 57.
    Pennsylvania State Police Corporal Faust testified that, on July 9, 2021,
    she was in the Criminal Investigation Unit at PSP Carlisle, and she was
    assigned to investigate the instant assault.     Id. at 62.   Accordingly, she
    traveled to the hospital, and she interviewed C.O. Alexander, who explained
    the specifics of the assault to her.3 Id. She then traveled to SCI-Camp Hill
    to interview Appellant, who waived his Miranda4 rights and agreed to speak
    to Corporal Faust. Id. at 63.
    Corporal Faust testified she asked Appellant how he was able to get his
    cell door open, and he indicated he had kicked it. Id. Appellant told her he
    “kicks at his door.” Id. at 66. Appellant denied having any personal issues
    with C.O. Alexander, and he informed Corporal Faust that he didn’t “know him
    at all.” Id. at 64. Appellant then indicated he wanted to end the interview.
    Id.
    Appellant testified he was an inmate at SCI-Camp Hill on July 9, 2021,
    when his cell’s door suddenly slid open. Id. at 77. Appellant saw this as his
    ____________________________________________
    3 She noted C.O. Alexander’s description of the assault, which he provided in
    the hospital, was consistent with his trial testimony. Id.
    4 Miranda v. Arizona, 
    384 U.S. 436
     (1966).
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    “way out,” so he ran out of his cell and “attacked” the corrections officer. 
    Id.
    He testified he used “only [his] two hands,” and he had no “ill will” toward the
    corrections officer. Id. at 78. He indicated he “didn’t have [any] malicious
    intent toward this man himself, but the rage and anger [he] harbored was
    toward the entity he worked for.” Id.
    Appellant testified the reason he attacked C.O. Alexander was so that
    he would be transferred from SCI-Camp Hill to a different state correctional
    institution. Id. He testified he wanted to “start fresh somewhere” and leave
    behind the trauma he has experienced at SCI-Camp Hill. Id. He indicated
    C.O. Alexander was “at the wrong place at the wrong time,” and he had no
    intent to hurt him. Id. at 79-80. He indicated he did not want to kill him.
    Id. at 81.
    Appellant admitted he did not stop hitting C.O. Alexander when the
    “female sergeant” tried to stop him; however, he testified he kept hitting C.O.
    Alexander, as opposed to the “female sergeant,” because he knew he could
    have completely “overpowered her.” Id. at 80. He indicated he knew he was
    being monitored 24/7 on the E Block, and he believed he would have about
    “an 8 second window” to attack the corrections officer. Id. at 81.
    On cross-examination, Appellant indicated he believes his cell door
    opened because either a prison employee inadvertently pushed his cell’s door
    button or a storm caused the electronics to malfunction.       Id. at 82.    He
    admitted he did not exit his cell immediately when the door unexpectedly slid
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    open; but rather, he waited until the corrections officer on duty, C.O.
    Alexander, walked closer to his cell. Id. at 83. He indicated he assumed he
    would be stopped sooner by prison officials, but he admitted he could have
    stopped the assault sooner on his own. Id. He admitted he had “no regard
    for C.O. Alexander.” Id. at 85.
    At the conclusion of the trial, the jury convicted Appellant of the crimes
    set forth supra, and on September 8, 2022, the trial court sentenced Appellant
    to an aggregate of ten years to twenty years in prison. Appellant and the
    Commonwealth filed timely post-sentence motions, and on November 8,
    2022, the trial court held a hearing at which “the parties agreed that Appellant
    had to be resentenced given an error in the sentencing guidelines previously
    agreed [to] at the original sentencing [hearing].” 5 Trial Court Opinion, filed
    5/8/23, at 1 n.3. Since additional disputed issues remained outstanding, the
    trial court held an additional sentencing hearing on February 7, 2023, at which
    time the trial court sentenced Appellant to an aggregate of ten years to twenty
    years in prison, to be served consecutively to any other sentence Appellant
    was currently serving.
    Appellant filed a timely, counseled notice of appeal on February 7, 2023,
    and all Pa.R.A.P. 1925 requirements have been met. On appeal, Appellant sets
    ____________________________________________
    5 The trial court noted the parties filed motions to extend the 120-day period
    for the trial court to decide the post-sentence motions, and on January 10,
    2023, the trial court extended the post-sentence motions period by thirty days
    as permitted by Pennsylvania Rule of Criminal Procedure 720(B)(3)(a)-(b).
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    forth the following sole issue in his “Statement of the Questions Involved”
    (verbatim):
    1. Whether the Commonwealth presented insufficient evidence to
    sustain Defendant’s conviction of aggravated assault, 18
    Pa.C.S.A. § 2702(a)(2), as the evidence neither established
    that the victim suffered serious bodily injury nor that
    Defendant intended to cause serious bodily injury.
    Appellant’s Brief at 3 (suggested answer omitted).
    Appellant contends the evidence is insufficient to sustain his conviction
    for aggravated assault under 18 Pa.C.S.A. § 2702(a)(2).6           Specifically,
    Appellant avers the Commonwealth failed to prove, beyond a reasonable
    doubt, that he caused or attempted to cause serious bodily injury to C.O.
    Alexander. Rather, Appellant contends C.O. Alexander suffered solely bodily
    injury, which was the intent of Appellant when he attacked the corrections
    officer. Appellant contends his case is indistinguishable from Commonwealth
    v. Alexander, 
    477 Pa. 190
    , 
    383 A.2d 887
     (1978), wherein our Supreme Court
    held the evidence was insufficient to sustain a defendant’s conviction under
    Subsection 2702(a)(2).
    Our scope and standard of review when considering challenges to the
    sufficiency of the evidence are as follows:
    Because a determination of evidentiary sufficiency presents a
    question of law, our standard of review is de novo and our scope
    ____________________________________________
    6 Appellant presents no argument or issue related to his conviction for
    aggravated assault under 18 Pa.C.S.A. § 2702(a)(3) or assault by prisoner
    under 18 Pa.C.S.A. §2703(a)(1)(ii). Accordingly, we do not address
    Appellant’s convictions for these crimes.
    - 10 -
    J-S45037-23
    of review is plenary. In reviewing the sufficiency of the evidence,
    we must determine whether the evidence admitted at trial and all
    reasonable inferences drawn therefrom, viewed in the light most
    favorable to the Commonwealth as verdict winner, were sufficient
    to prove every element of the offense beyond a reasonable doubt.
    [T]he facts and circumstances established by the Commonwealth
    need not preclude every possibility of innocence. It is within the
    province of the fact-finder to determine the weight to be accorded
    to each witness’s testimony and to believe all, part, or none of the
    evidence. The Commonwealth may sustain its burden of proving
    every element of the crime by means of wholly circumstantial
    evidence. Moreover, as an appellate court, we may not re-weigh
    the evidence and substitute our judgment for that of the fact-
    finder.
    Commonwealth v. Williams, 
    176 A.3d 298
    , 305–06 (Pa.Super. 2017)
    (citations and quotation marks omitted).
    Under 18 Pa.C.S.A. § 2702(a)(2), a person is guilty of aggravated
    assault if he “attempts to cause or intentionally, knowingly or recklessly
    causes serious bodily injury to any of the officers, agents, employees or other
    persons enumerated in subsection (c) or to an employee of an agency,
    company or other entity engaged in public transportation, while in the
    performance of duty.”7 18 Pa.C.S.A. § 2702(a)(2). “Serious bodily injury” is
    “[b]odily injury which creates a substantial risk of death or which causes
    serious permanent disfigurement, or protracted loss or impairment of the
    ____________________________________________
    7 In the case sub judice, Appellant does not dispute that C.O. Alexander is a
    person enumerated in subsection (c) or that Appellant attacked him while he
    was in the performance of his duty. See 18 Pa.C.S.A. § 2702(c)(9) (“The
    officers, agents, employees and other persons referred to in subsection (a)
    shall be as follows…(9) Officer or employee of a correctional institution[.]”).
    - 11 -
    J-S45037-23
    function of any bodily member or organ.” 18 Pa.C.S.A. § 2301. To sustain a
    conviction for aggravated assault, the Commonwealth need not show that
    serious bodily injury actually occurred, but only that the defendant attempted
    to cause serious bodily injury to another person. Commonwealth v.
    Galindes, 
    786 A.2d 1004
    , 1012 (Pa Super. 2001). An “attempt” exists when
    “the accused intentionally acts in a manner which constitutes a substantial or
    significant step toward perpetuating serious bodily injury upon another.” 
    Id.
    (citation and quotation omitted).
    In concluding Appellant is not entitled to relief on his sufficiency claim,
    the trial court relevantly indicated the following:
    In response to a special interrogatory question on the
    verdict slip, the jury indicated therein that it found the
    Commonwealth proved beyond a reasonable doubt that Appellant
    attempted to cause serious bodily injury, and not that Appellant
    did intentionally, knowingly, or recklessly cause such injury.
    While Appellant claims that the Commonwealth failed to prove the
    victim suffered a serious bodily injury or that Appellant intended
    to cause such injury, the Commonwealth was required to prove
    only one of the two theories [beyond a reasonable doubt]. See
    Commonwealth v. Lewis, 
    911 A.2d 558
    , 564 (Pa.Super.
    2006)[.] [The trial court], therefore, limits [its] analysis to
    whether the Commonwealth produced sufficient evidence to prove
    Appellant…attempted to cause serious bodily injury.
    ***
    [The trial court is] satisfied that the Commonwealth
    produced sufficient evidence to prove, and the jury could
    reasonably conclude, that Appellant intended to cause serious
    bodily injury to [C.O.] Alexander. Appellant launched a surprise
    attack on [C.O.] Alexander by bolting out of his cell at [C.O.
    Alexander] and immediately launching…30 punches to [C.O.]
    Alexander’s face, head, and body, continuing as [C.O.] Alexander
    fell to the ground and knelt helplessly, attempting to cover his
    head. Appellant put his body weight on [C.O.] Alexander’s back,
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    keeping [C.O.] Alexander down while [Appellant] continued
    punching him and did not stop until he was forcibly removed by
    another corrections officer. Finally, Appellant testified that he felt
    anger and rage toward the prison, and that the attack went much
    further than it needed to go, which, viewed in the light most
    favorable to the Commonwealth, also supports a finding that he
    intended to inflict serious bodily injury upon [C.O.] Alexander. See
    Commonwealth v. Dailey, 
    828 A.2d 356
    , 360-61 (Pa.Super.
    2003) (finding that the inmate intended to cause serious bodily
    injury to the corrections officer where he “delivered at least two
    closed-fist blows and was forcibly restrained while positioned to
    continue the attack”)[.]
    Trial Court Opinion, filed 5/8/23, at 6-8 (emphasis in original) (footnotes and
    citations omitted).
    We agree with the trial court’s sound reasoning. Specifically, assuming,
    arguendo, the evidence fails to establish C.O. Alexander suffered serious
    bodily injury from the assault, we conclude the evidence sufficiently
    establishes Appellant acted with the requisite intent to cause serious bodily
    injury to C.O. Alexander. During his surprise attack, Appellant punched C.O.
    Alexander approximately thirty times with closed fists about the head and
    face. C.O. Alexander testified the punches were “hard” and with Appellant’s
    “full strength.” N.T., 8/30/22, at 46. He noted he became disoriented during
    the attack and could not “process [his] thoughts[.]” Id. at 45. After C.O.
    Alexander fell to the ground and assumed a defensive posture, Appellant
    placed his weight on C.O. Alexander and continued to punch him until other
    corrections officers forcibly removed him.
    We agree with the trial court that the instant case is akin to Dailey,
    
    supra,
     where we found the evidence sufficiently demonstrated the inmate
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    J-S45037-23
    intended to inflict serious bodily injury on a corrections officer so as to support
    a conviction for aggravated assault under Subsection 2702(a)(2). In Dailey,
    the inmate delivered two closed-fisted punches to the corrections officer’s face
    and had to be forcibly restrained by other corrections officers while standing
    in a position indicating he intended to continue the attack.
    Moreover, we reject Appellant’s claim that the instant case is
    indistinguishable from Alexander, supra, wherein our Supreme Court
    concluded the evidence that the appellant struck the victim with a single punch
    to the head, which resulted in a broken nose, was insufficient to sustain the
    appellant’s conviction for aggravated assault. Alexander, 
    supra,
     
    383 A.2d at 889
    . The Court limited its holding to the facts of that case noting:
    In the instant case, the only direct evidence of [the] appellant’s
    intent is his testimony to the effect that he did not intend to
    seriously injure the victim. Thus, any evidence of his intent must
    be gleaned from the other circumstances surrounding the
    appellant’s attack on the victim. In this case there simply are no
    such circumstances….There is no evidence that [the] appellant
    was disproportionately larger or stronger than the victim; [the]
    appellant was not restrained from escalating his attack upon the
    victim; [the] appellant had no weapon or other implement to aid
    his attack; [the] appellant made no statements before, during or
    after the attack which might indicate his intent to inflict further
    injury upon the victim. [The] appellant delivered one punch and
    walked away.
    
    Id.
    In contrast to Alexander, in the case sub judice, Appellant delivered
    approximately thirty hard closed-fisted blows to the corrections officer, he
    continued the attack after the corrections officer had fallen to his knees and
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    J-S45037-23
    assumed a defensive position, and he had to be forcibly removed away from
    the fallen corrections officer.   The fact that other officers came to C.O.
    Alexander’s aid before Appellant caused serious bodily injury to him does not
    preclude a finding that Appellant acted with intent to inflict serious bodily
    injury. See Dailey, 
    supra.
     Accordingly, we hold the evidence was sufficient
    to sustain Appellant’s conviction for aggravated assault under 18 Pa.C.S.A. §
    2702(a)(2).
    For all of the foregoing reasons, we affirm.
    Affirmed.
    Judgment Entered.
    Benjamin D. Kohler, Esq.
    Prothonotary
    Date: 12/27/2023
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Document Info

Docket Number: 372 MDA 2023

Judges: Stevens, P.J.E.

Filed Date: 12/27/2023

Precedential Status: Precedential

Modified Date: 12/27/2023