J-S08016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CRAIG AARON DOSWELL, JR.,

                            Appellant                    No. 763 WDA 2017


         Appeal from the Judgment of Sentence entered April 18, 2017,
              in the Court of Common Pleas of Allegheny County,
             Criminal Division at No(s): CP-02-CR-0001818-2016.


BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY KUNSELMAN, J.:                              FILED APRIL 5, 2018

        Craig Doswell, Jr., appeals from the judgment of sentence, entered

after a bench trial, where he was convicted of assault by prisoner, and

terroristic threats.1 After careful review, we affirm.

        The trial court summarized the facts of this case as follows:

              The facts as viewed in the light most favorable to the
           Commonwealth establish that on January 10, 2016, at
           approximately 9:50 p.m., Norman Roper was attacked by
           [Doswell] while the two men were inmates at the
           Allegheny County Jail. At the time of the attack, Mr. Roper
           and [Doswell] had been alone in a prison cell. Mr. Roper
           testified that, as he stood up to use the bathroom,
           [Doswell] suddenly wrapped his hands around Mr. Roper’s
           throat. [Doswell] then “slammed” Mr. Roper’s head into a
           brick wall, telling Mr. Roper that he was going to make him
____________________________________________


1   18 Pa.C.S.A. §§ 2703(a) and 2706(a), respectively.


*Former Justice specially assigned to the Superior Court.
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       “his bitch” and that Mr. Roper “was going to be sucking his
       dick.” Mr. Roper testified that [Doswell] was “choking the
       shit out of” him and that he could feel [Doswell’s] hands
       squeezing his neck. [Doswell] choked Mr. Roper to the
       point that Mr. Roper eventually lost consciousness. Mr.
       Roper was unable to estimate how long he had been
       unconscious.

          When Mr. Roper regained consciousness, [Doswell] was
       holding him up and had him “bent over his bed.”
       [Doswell] continued to threaten Mr. Roper by stating that
       he was going to make Mr. Roper “his bitch.” [Doswell]
       also told Mr. Roper that, when Mr. Roper’s “cellie came in,
       he was going to make him his bitch” too and that they
       would “both be sucking his dick.” [Doswell] was unable to
       take the attack any further because one of the prison
       guards approached the cell. At that point, [Doswell] let go
       of Mr. Roper and walked over to the window while Mr.
       Roper sat on the bed.

          Correctional Officer (“CO”) David Holland and Nurse
       Julie Ann Rager were distributing medications to the
       inmates at the time of the attack. They were the first
       authority figures to have the opportunity to observe Mr.
       Roper immediately after the attack happened. CO Holland
       testified that, when they approached Mr. Roper’s cell, Mr.
       Roper looked “fearful,” “distraught” and “panicked.” Mr.
       Roper immediately asked to be removed from the cell. CO
       Holland then proceeded to alert Captain Vanchieri to the
       situation.   When Nurse Rager made contact with Mr.
       Roper, she noticed that Mr. Roper’s hand was “shaking”
       when he reached for his medications and that his hands
       were “very [] clammy.” Nurse Rager also observed that
       Mr. Roper’s face “appeared to be very ashen, pale.” She
       asked Mr. Roper if he was okay because she did not
       believe that he looked well. Mr. Roper “shook his head” in
       response; he told Nurse Rager that he was not okay and
       that she had to get him “out of here.”

          Mr. Roper’s cell door eventually was opened so that
       Nurse Rager could assess his condition. She noted visible
       “dark, red marks around his neck,” as well as “some
       petechiae bruising” under his right eye. Nurse Rager
       testified that the neck marks were caused “from something
       being around his neck” and that “the marks under his eye

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         [we]re the result of broke blood vessels.” Nurse Rager
         explained that “[p]etechiae is a type of bruising caused by
         increased pressure in the capillary beds that explode near
         the surface of the skin.” She also noted that Mr. Roper
         had “frontal forehead tenderness with small area of
         redness” and that the area was “tender to the touch to
         palpate.”

            After Captain Vanchieri was alerted to the situation, he
         spoke with Mr. Roper and observed that Mr. Roper had
         “some light scratch marks on his neck.”         Mr. Roper
         informed the captain that he had been attacked, and the
         captain photographed Mr. Roper’s neck injuries. Mr. Roper
         was transported to West Penn Hospital for treatment and
         observation on the same night as the attack. Medical
         personnel examined him for a potential sexual assault, but
         it was ultimately determined that no sexual assault had
         occurred while Mr. Roper was unconscious. Mr. Roper
         testified that he had a “goose egg” on the back of his head
         from [Doswell] slamming his head into a brick wall and
         that he suffered some residual aches and pains for a few
         days following the incident.

Trial Court Opinion, 8/22/2017, at 3-5 (citations omitted).



      On January 24, 2017, Doswell was convicted on both charges during a

bench trial. On April 18, 2017, the trial court sentenced Doswell to a term of

two to four years of incarceration followed by two years of probation.

Doswell filed this timely appeal that was later amended. Both Doswell and

the trial court have complied with Pa.R.A.P. 1925.

      Doswell raises one issue on appeal:

         I.    Was not the evidence insufficient as a matter of law
               to sustain the conviction of Assault by Prisoner
               where the Commonwealth failed to prove beyond a
               reasonable doubt that [Doswell] intended to use
               force or actually employed force likely to produce
               serious bodily injury?


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J-S08016-18



Doswell’s Brief at 7.

      Our standard of review is well settled:

          The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all of 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
      [finder] 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. Jones, 886 A.2d 689, 704 (Pa. Super. 2005), appeal

denied, 897 A.2d 452 (Pa. 2006) (citations omitted).

      A person is guilty of Assault by Prisoner if that person is “confined in or

committed to any . . . county detention facility . . . located in this

Commonwealth . . . [and] if he, while so confined . . . intentionally or

knowingly, commits an assault upon another . . . by any means or force

likely to produce serious bodily injury.” 18 Pa. C.S.A. §2703(a).        Serious

bodily injury is defined as:

      [A] bodily injury which creates a substantial risk of death or
      which causes serious, permanent disfigurement, or protracted


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      loss or impairment of the function of any bodily member or
      organ.

18 Pa.C.S.A. § 2301.

      In support of his sufficiency challenge, Doswell argues:

         The Commonwealth failed to prove beyond a reasonable
      doubt that [he] committed Assault by Prisoner in this case.
      Specifically, the Commonwealth failed to establish that [he]
      intended to use force likely to produce serious bodily injury, or
      caused serious bodily injury to Norman Roper. [Mr.] Roper did
      not suffer serious or permanent disfigurement, nor did he lose
      the function of any organ or any other part of his body. Nor was
      there a substantial risk of death here.

          Under the statute, [Doswell] can only be convicted if it is
      proven that he intended to commit or knowingly committed an
      assault by a force likely to produce serious bodily injury. Yet,
      looking at the factors listed in the Alexander case, we know
      that [Mr. Roper] was six feet tall; there was no evidence of a
      great size differential in height or weight. Doswell did not have
      to be restrained from continuing to fight, when the correctional
      officer came to the door of the cell, all looked normal. One
      officer observed no marks on [Mr. Roper], another said he saw
      “light scratch marks.” More tha[n] this must be shown to prove
      an intent to commit serious bodily injury. With this, and other
      inconsistencies in the testimony, the evidence is insufficient to
      support the conviction. [Doswell’s] judgment of sentence should
      be overturned and his case remanded for resentencing.

Doswell’s Brief at 15-16. We disagree.

      Although Doswell’s testimony at trial provided the trial court with an

entirely different version of events, the fact finder, in this case, the trial

court, made findings of credibility and determined which testimony to

believe.   See, e.g., Commonwealth v. Tate, 401 A.2d 353, 354 (Pa.

1979). Considering the testimony provided by both the Commonwealth and

Doswell, the trial court reasoned:


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           Contrary to the [Doswell’s] assertion on appeal, the
       evidence presented at the non-jury trial was more than
       sufficient to establish that [he] used “force likely to
       produce serious bodily injury” when he slammed Mr.
       Roper’s head into a brick wall and strangled Mr. Roper to
       the point that he rendered him unconscious and caused
       petechiae bruising to appear under his eye. As the trier-
       of-fact in this case, this court was able to study the
       demeanor of the witnesses, and it found Mr. Roper’s
       account of events to be particularly genuine, consistent,
       credible and corroborated by other evidence. To be sure,
       the fact that Mr. Roper reported the attack immediately
       after it occurred and the fact that neutral parties observed
       visible physical injuries in the form of red marks around
       Mr. Roper’s neck and the petechiae under his eye lent
       substantial credibility to his testimony. As noted, CO
       Holland and Nurse Rager observed Mr. Roper’s demeanor
       following the incident, and both of them noted that he
       appeared shaken, fearful, distraught and panicked.
       Additionally, Mr. Roper was transported to the hospital on
       the same night of the attack so that his injuries could be
       assessed, and this court believed him when he testified
       that his injuries were not self-inflicted.

          The court recognizes that [Doswell] provided a
       substantially different account of what transpired in the
       cell. At trial, [Doswell] acknowledged that a confrontation
       occurred on the night of the incident, but he claimed that
       the confrontation occurred because Mr. Roper had been
       hounding him for marijuana. [Doswell] testified that Mr.
       Roper head-butted him, and that he merely pushed Mr.
       Roper away and told him to get out of his face. He
       maintained that he never slammed Mr. Roper’s head into a
       wall or choked him. [Doswell] also testified that he was
       the one who asked CO Holland to be removed from the
       cell. [Doswell’s] statement to police following the incident
       essentially mirrored his trial testimony. [Doswell] claimed
       that Mr. Roper. Was making false allegations, and he
       maintained that he was “not a homosexual in any way, and
       the he wouldn’t have said those things to him.” [Doswell]
       did concede that there was a verbal altercation between
       the regarding marijuana, and, though he admitted to
       pushing Mr. Roper away from him, he denied making any
       sexual threats.


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          In an attempt to undermine the credibility of Mr.
       Roper’s testimony, [Doswell] argued that Mr. Roper had
       been suffering from blackouts prior to the incident due to
       his medications, and he attempted to suggest that the
       petechiae observed under Mr. Roper’s eye was the result
       of prolonged straining.” However, after considering the
       evidence as a whole, and after assessing the tone,
       demeanor and credibility of all the witnesses, the court
       rejected [Doswell’s] version of events as not believable
       and unsupported by any other evidence. The court found
       that there was compelling circumstantial evidence to
       support Mr. Roper’s claim that [Doswell] slammed his head
       into a brick wall, choked him to the point of
       unconsciousness, and made sexually explicit threats.
       Again, Mr. Roper’s version of events was corroborated by
       neutral witnesses who observed Mr. Roper’s physical
       injuries and emotional demeanor immediately following the
       incident. The court notes that, although no serious bodily
       injury ultimately occurred, the attack ceased only because
       CO Holland and Nurse Rager were approaching the cell to
       distribute medications.

          The court also notes that the testimony of CO Holland
       and Nurse Rager did not support [Doswell’s] testimony
       that he was the one asked to be removed from the cell.
       To the contrary, these witnesses both testified that it was
       Mr. Roper who appeared to be visibly upset and that it was
       Mr. Roper who asked to be taken out of the cell. CO
       Holland specifically testified that, it was not for Mr. Roper’s
       outward appearance and statement that he wanted to
       leave the cell, he would not have noticed anything had
       transpired between the two (2) men because everything
       else appeared normal. CO Holland testified that, while Mr.
       Roper appeared to be “distraught” and “panicked,”
       [Doswell’s] demeanor was “normal.”

          It should be noted that while Mr. Roper was on some
       medication, his medications were for urinary problems and
       not for any psychiatric issues. Moreover, the mere fact
       that Mr. Roper experienced blackouts prior to the incident
       does not negate a finding that the loss of consciousness he
       suffered on the night or the incident was caused by
       [Doswell]. To be sure, Mr. Roper specifically testified that
       he did not cause the injuries that he sustained on the night


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         of January 10, 2016, and the court found his testimony to
         be worthy of belief.

            In sum, although no one witnessed the actual attack
         take place, there was compelling circumstantial evidence
         to prove beyond a reasonable doubt that [Doswell] choked
         Mr. Roper to the point of loss of consciousness and
         slammed his head into a brick wall.

Trial Court Opinion, 8/22/17, 7-10 (citations omitted).    We cannot disturb

the fact finder’s credibility determinations. Commonwealth v. Kinney, 157

A.3d 968 (Pa. Super. 2017).

      Doswell relies heavily on the factors our Supreme Court set forth in

Commonwealth v. Alexander, 383 A.2d 887 (Pa. 1978). In that case, the

Defendant punched his victim in the face, breaking the victim’s nose.

Alexander, 383 A.2d at 889.       There, the Commonwealth agreed that the

defendant did not inflict serious bodily injury, but argued that striking the

victim in his head, a “vital part of the human body,” showed the requisite

intent to cause such injury. Id. Our Supreme Court disagreed stating that

“we cannot say the mere fact that a punch was delivered to that portion of

the body is sufficient, without more, to support a finding that [defendant]

intended to inflict serious bodily injury.” Id. The court ruled that additional

evidence was needed to find the requisite intent absent actual serious injury.

Id.

      Presenting facts such as the use of a weapon and/or whether the

assailant was “disproportionately larger or stronger than the victim” could

lead to a finding of requisite intent. Id.


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         The case before this Court is distinguishable from Alexander. Here,

Doswell’s attack was far more egregious than a mere punch. The trial court

found Doswell strangled Mr. Roper.        Choking a person to the point of

unconsciousness is substantially more harmful and aggressive than striking

one punch to someone’s head.        We find that the Commonwealth did not

have to present additional evidence to allow the trial court, acting as fact

finder, to make the requisite finding of intent when Doswell strangled Mr.

Roper until he blacked out.

         Our review of the record and pertinent case law supports the trial

court’s conclusion.    See, Commonwealth v. Dailey, 828 A.2d 356, 361

(Pa. Super. 2003) (upholding assault by prisoner conviction when defendant,

punched victim several times in the face, dazing victim); see also

Commonwealth v. Everett, 596 A.2d 244, 246-47 (Pa. Super. 1991)

(concludes evidence was sufficient to sustain a conviction for assault by

prisoner when the defendant slammed a large, heavy steel door while the

victim was standing in the doorway). Thus, Doswell’s sufficiency challenge

fails.

         Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/5/2018




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