J-S23012-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    BOBBY HALL,

                             Appellant                No. 1027 WDA 2018


       Appeal from the Judgment of Sentence Entered February 28, 2018
               In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0005761-2017


BEFORE: BENDER, P.J.E., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY BENDER, P.J.E.:                           FILED JUNE 18, 2019

        Appellant, Bobby Hall, appeals from the judgment of sentence of an

aggregate term of 2 years’ probation, imposed after he was convicted,

following a non-jury trial, of simple assault (18 Pa.C.S. § 2701(a)(1)) and

official oppression (18 Pa.C.S. § 5301(1)). We affirm.

        Appellant presents the following two issues for our review:

        I.    There was insufficient evidence to support the conviction for
              simple assault where the medical report stated that Michael
              Miller did not suffer any injuries and the Commonwealth
              failed to establish that Hall intended or attempted to cause
              any injury to Michael Miller, and the trial court erred in
              denying the post-sentence motion raising this claim.

        II.   There was insufficient evidence to support the conviction for
              official oppression where the Commonwealth failed to
              establish that Michael Miller was mistreated by [Appellant]
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S23012-19


            in [Appellant’s] capacity as a corrections officer, where: (1)
            Michael Miller did not appear for trial and offer any
            supporting testimony; (b) the Commonwealth failed to offer
            into evidence any written prison policies and procedures to
            establish [Appellant’s] conduct was unlawful; and (c) the
            Commonwealth failed to establish whether [Appellant]
            knowingly and illegally acted in bad faith in response to
            Michael Miller spitting in his face, and the trial court erred in
            denying the post-sentence motion raising this claim.

Appellant’s Brief at 5.

      We have reviewed the certified record, the briefs of the parties, and the

applicable law.    Additionally, we have reviewed the thorough and well-

reasoned opinion of the Honorable Beth A. Lazzara of the Court of Common

Pleas of Allegheny County.       We conclude that Judge Lazzara’s opinion

accurately disposes of the issues presented by Appellant.        Accordingly, we

adopt her opinion as our own and affirm Appellant’s judgment of sentence for

the reasons set forth therein.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/18/2019




                                      -2-
                                                                                        Circulated 05/22/2019 12:35 PM




                         IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
                                                CRIMINAL DIVISION




                     COMMONWEALTH OF PENNSYLVANIA,            CC No. 2017-5761


                                v.                                       JRIGINAL
                                                                         Criminal Division
                                                                     Clopl Of Court necords
                                                                       \l!,·qi1l"'V County, PA
                     BOBBY HALL, ·


                               Defendant.                     OPINION




                                                              BETH A. LAZZARA, JUDGE
                                                              Court of Common Pleas


                                                              Copies Sent To:

 :-'�·�,
 .· ...... �"·�·.}
                                                              Mike W. Streily, Esq.
                                                              Office of the District Attorney
                                                              401 Courthouse
4 1                                                           Pittsburgh, PA 15219
L"]�'.-;;::.,,




                                                              Diana Stavroulakis, Esq.
                                                              262 Elm Court
                                                              Pittsburgh, PA 15237
 IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA



COMMONWEALTH OF PENNSYLVANIA,                      CRIMINAL DIVISION

                 vs.                               cc» 2017-5761
BOBBY HALL,


                 Defendant.




                                          OPINION


       This is a direct appeal from the judgment of sentence entered on February 28,

2018, following a non-jury trial that took place on February 28. 2018. The Defendant

was charged with Simple Assault (18 Pa. C.S.A. §2701(a)(1)) and Official Oppression

( 18 Pa C.S.A. §5301 ( 1 ). At the conclusion of trial, this court found the Defendant guilty

of both charges. The Defendant waived his right to a Presentence Report and

proceeded to sentencing immediately following his convictions.




       The Defendant was sentenced to two (2) years of probation at each count,

ordered to run concurrently. A No Contact Order was imposed, prohibiting the

Defendant from havlng contact with inmates Michael Miller and Jamie Painter. The

Defendant was ordered to pay court costs.
       A post-sentence motion was filed by the Defendant on March 12, 2018. On

 March 16, 2018, appellate counsel entered her appearance on the record. On March

23, 2018, the Defendant's trial counsel sought leave to withdraw from representation.

His request was granted that same day. A supplemental post sentence motion was filed

on May 14, 2018. The motion was heard and denied on June 19, 2018. This timely

appeal followed.




       On August 1, 2018, this court issued an Order pursuant to Pa. R.A. P .1925(b },

directing the Defendant to file a Concise Statement of Matters Complained of on Appeal

("Concise Statement") no later than August 24, 2018. On August 24, 2018, the

Defendant filed a timely Concise Statement and raised the following allegations of error

on appeal:


       a. There was insufficient evidence to support the conviction for simple
          assault where the medical report stated that Michael Miller did not
          suffer any Injuries and the Commonwealth failed to establlsh that Hall
          intended or attempted to cause any injury to Michael Miller, and the
          trial court erred in denying the post-sentence motion raising this claim.

      b. There was insufficient evidence to support the conviction for official
         oppression where the Commonwealth failed to establish that Michael
         Miller was mistreated by Hall in his capacity as a corrections officer
         where, (a) Michael Miller dld not appear for trial and offer any
         supporting testimony; (b} the Commonwealth failed to offer into
         evidence any written prison policies and procedures to establish Bobby
         Hall's conduct was unlawful; and (c) the Commonwealth failed to
         establish whether Hall knowingly and Illegally acted in bad faith in
         response to Michael Miller spitting in his face, and the trial court erred
         in denying the post-sentence motion raising this claim.

(Concise Statement, pp. 2-4).




                                            2
        The Defendant's contentions are without merit. This court respectfully requests

 that the Defendant's convictions and sentences be upheld for the reasons that follow.




 I.     FACTUAL BACKGROUND


       On the evening of December 10, 2016, the Defendant, a Pennsylvania State

Department of Corrections Officer ("CO"), was working as a "control booth officer'' (also

known as a "bubble control officer'') on the A-200 Block at the State Correctional

Institution at Pittsburgh ("SCI Pittsburgh"). (Trial Transcript ("TI"), 2/28/18, pp. 12-14,

100). As a CO, the Defendant was responsible for "provid[ing] security for the prison,

inmates, and staff." (TI, p. 11 ). It is also the duty of a CO to ensure inmate compliance

with the rules and regulations of the Department of Corrections, as well as ensure staff

compliance with the code of ethics. (TI, pp. 11, 12). As a control booth officer, the

Defendant was responsible for overseeing that "all passes are issued out, all

movements are being made at all times," and that "cell doors are being opened properly

at all times." (TT, p. 14). On December 10, 2016, the Defendant was working the same

shift as his co-worker, CO John Bezts. (TT, pp. 12-13). The shift began at 14:00 hours

(or 2 p.m.). (TI, pp. 12-13).




      At approximately 6:50 p.m., CO Bezts was preparing to perform cell compliance

checks in the pod, which was a therapeutic community for drug and alcohol treatment.

(TI, pp. 14-16, 74). The Defendant specifically asked CO Bezts to conduct a

compliance check of a cell which belonged to Inmate Michael Miller and his cellmate,

                                             3
Jamie Painter. (TI, pp. 15-16, 31, 55, 57). Unbeknownst to CO Bezts, the Defendant

requested the compliance check of Inmate Miiier's cell because the Defendant and

Miller had gotten into an argument about "yard time" shortly before the compliance

checks. (TT, pp. 56-58). CO Bezts agreed to perform the check. (IT, pp.15-16, 31 ).

CO Bezts, along with another corrections officer, CO Mitchell, were inside <of the cell

conducting the compliance check when Inmate Miller commented to CO Bezts that

Bezts was only performing the compllance check "because of that fat ass in the [ J

control center." (TT, pp. 16, 58). CO Bezts warned Inmate Miller to watch what he said

about the officers in front of other corrections officers. (TT, p. 16). Inmate Painter also

told Inmate Miller "to be quiet because Officer Bezts was just doing his job." (IT, p. 16).




       After completing the compliance check and discovering contraband in the form

of two small portable radios, CO Bezts returned to the control booth and relayed the

results of his search to the Defendant. (IT, pp. 16-17, 31-32, 58). CO Bezts also told

the Defendant that "Inmate Miller called him   a fat ass." (IT, pp.   17, 33-34). The

Defendant became very angry. (TI, p, 17). He asked CO Bezts whether Inmate Miller

"actually said that," and CO Bezts confirmed that he did. (TI, p, 17). The Defendant's

"face turned red, and he bolted out of the control booth." (TI, p. 17). CO Bezts did not

know why the Defendant had left the control booth, but he observed the Defendant

walking very quickly towards Inmate Miller's cell, which was closed and secured at that

time. (TT, pp, 17-20, 36). CO Bezts testified that there was no reason, according to his

training and experience, for the Defendant to leave the control booth at that time. (IT, p.

18).

                                              4
        CO Bezts watched from near the vestibule door of his pod as the Defendant

approached Inmate Miller's cell. (TT, pp. 19, 36). CO Bezts could not understand

exactly what the Defendant was saying to Inmate Miller, but he was able to hear the

Defendant "hollering, screaming at Inmate Miller," and "using profanity", describing the

Defendant as "upset and irate." (TT, pp. 19-20, 36, 58). The Defendant was the only

person that CO Bezts heard using profanity. (TI, pp. 20, 22). According to Inmate

Painter, Inmate Miller "looked at Officer Hall and said: Your problem is, you fat fuck, you

get no p*ssy, zero p'ssy." (TT, p. 58). At this point, the Defendant turned to CO Bezts

and told him to "[o]pen the fucking door, open the fucking door now". (TT, pp. 20, 38-

39, 58). CO Mitchell, who was inside of the control booth at that time, reluctantly

opened the cell door for the Defendant. (TT, pp. 20, 40).




       CO Bezts observed the Defendant enter Inmate Miller's cell. (TT, p. 20). Since

he was the only officer on the unit equipped with "OC spray," a chemical spray used to

break up inmate altercations, CO Bezts decided to proceed to Inmate Miller's cell,

number 2013, and stand outside of the cell. (TT, pp. 20-21 , 23). The Defendant had

been arguing at the cell door for approximately one minute or less before CO Bezts

headed up to the cell. (TT, p. 36). In fact, the Defendant was already inside of the cell

before CO Bezts went up the steps leading to the cell door. (TT, p. 40). However, during

the entire incident, CO Bezts only lost sight of the Defendant for approximately three (3)

to four (4) seconds. (TT, p. 40).




                                            5
        When CO Bezts approached the cell, he observed Inmate Miller sitting at the

edge of his bed on the bottom bunk, facing the desk. (TT, pp. 22, 58-59). His cellmate,

Inmate Painter, was also inside of the cell, standing by the desk against the wall. (TT,

pp. 22, 55, 58-59). CO Bezts saw the Defendant enter the cell and start pointing at

Inmate Miller. (TT, p. 23). The Defendant continued       to scream and   use profanity while

Inmate Miller "just sat there" on the bed. {TT, p. 23).




       At no time did CO Bezts see Inmate Miller spit on the Defendant. (TT, p, 22). He

did, however, see the Defendant clench his right fist and hit Inmate Miller in the face.

(TT, p. 23). CO Bezts then saw the Defendant hit Inmate Miller in the chest with an

open-handed back-hand while Inmate Miller was still sitting on the edge of the bed.

(TT, p. 23). CO Bezts saw the Defendant lean forward onto Inmate Miiier and grab him

by the neck with both hands. {TT, pp. 23-24). According to Inmate Painter, the

Defendant grabbed Inmate Miller "up by the throat and put him down on the bunk and

smacked him in the mouth and called him a p*ssy. He smacked [him] a couple times

and said: You're a p*ssy, bitch. Say it now. Say something to my face now, bitch."

(TT, p. 59).




       Approximately one minute later, the Defendant stood up, turned towards CO

Bezts, and asked him for his handcuffs. (TT, pp. 23-24, 41, 59). He told CO Bezts to

"call it in as a staff assault because he got spit on." (TT, pp. 24, 40-41 ). CO Bezts gave

the Defendant his handcuffs, but stayed outside of the cell. (TT, pp. 24, 51 ). CO Bezts


                                             6
did not "call it in as a staff assault" because he "did not see Inmate Miller spit on" the

Defendant. (TI, p. 41 ). Instead, he simply requested "assistance up in Alpha 200, B

side." (TI, pp. 41-42). Inmate Painter testified that Inmate Miller never spit on the

Defendant and never attempted to assault him in any way. (TI, p. 63).




       The Defendant ordered Inmate Miller to stand up so that he could place Miller in

handcuffs. (TI, pp. 24-25). As he was removing Inmate Miller from the cell, the

Defendant had his hands behind Inmate Miller's back and was using force to push him

out of the cell. (TT, p. 25). Inmate Painter saw the Defendant swing Inmate Miiier

around, causing Inmate Miller to hit the side of his head on the comer of a shelving unit

and fall. (TI, pp. 25-26, 59). CO Bezts testified that "it looked like [Inmate Miller] either

"slipped on the blanket or [was] pushed from behind." (TT, p. 25). Inmate Painter

testified that he heard the Defendant say, "you slipped on the rug," but noted that "there

was no rug or object on the floor whatsoever." (TI, p. 59).




        Inmate Miller appeared to be "fidgeting" at that point, perhaps indicating

resistance, and so CO Bezts showed him his OC spray can and told him that if he

complied with the orders then he would be taken to the medical unit. (TI, p. 26). Per

the policy of the Department of Corrections, Inmate Miller was escorted out of the cell

by the Defendant and CO Bezts. (TI, pp. 26, 75). W�en they arrived in the vestibule

area of the pod, the Defendant shoved Inmate Miller into a member of the response

team, telling the responder to "[g]et this mother fucker out of here. He spit on me." (TT,


                                              7
pp. 27, 42; 75). Inmate Miller was then taken to the medical unit. (TT, pp. 27, 75).

Upon examination, medical personnel did not observe any visible injuries to Inmate

Miller. (TT, p. 78).




           CO Bezts proceeded to complete an incident report outlining his own actions in

relation to the incident that had just occurred. {TT, pp. 27-28, 42, 44-45, 50). He then

returned to his pod and apologized to Inmate Painter and the other inmates ''for what

they observed and heard" on his pod. (TT, p. 29). Inmate Painter was "upset" about

the incident but he told CO Bezts, "you had nothing to do with this." {TT, p. 29). He also

told CO Bezts, "Mou better do the right thing." (TT, p. 61 ).




II.    DISCUSSION
                J



       A. The evidence presented at trial was sufficient to support the
          Defendant's convictions for Simple Assault and Official Oppression.



       The appellate court employs a de nova standard of review for challenges to the

sufficiency of evidence. Commonwealth v. Neysmith, - - - A.3d - - - -. 2018 WL

3153691, at *4 (Pa. Super. 2018). Our appellate courts have explained this standard as

follows:


       [O]ur standard of review of sufficiency claims requires that we evaluate the
       record "ln the light most favorable to the verdict winner giving the
       prosecution the benefit of all reasonable inferences to be drawn from the
       evidence." Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
       "Evidence will be deemed sufficient to support the verdict when it
       establishes each material element of the crime charged and the

                                               8
       commission thereof by the accused, beyond a reasonable doubt."
       Commonwealth v. Brewer, 876 A2d 1029, 1032 (Pa. Super. 2005).
       Nevertheless, "the Commonwealth need not establish guilt to a
       mathematical certainty." Id.; see also Commonwealth v. Aguado, 760 A.2d
       1181, 1185 (Pa. Super. 2000) ("[T]he facts and circumstances established
       by the Commonwealth need not be absolutely incompatible with the
       defendant's innocence"). Any doubt about the defendant's guilt is to be
       resolved by the fact finder unless the evidence is so weak and
       inconclusive that, as a matter of law, no probability of fact can be drawn
       from the combined circumstances. See Commonwealth v. DiStefano, 782
       A.2d 574, 582 (Pa. Super. 2001 ).

       The Commonwealth may sustain its burden by means of wholly
       circumstantial evidence. See Brewer, 876 A.2d at 1032. Accordingly,
       "[t]he fact that the evidence establishing a defendant's participation in a
       crime is circumstantial does not preclude a conviction where the evidence
       coupled with the reasonable inferences drawn therefrom overcomes the
       presumption of innocence." M:. (quoting Commonwealth v. Murphy, 795
       A.2d 1025, 1038-39 (Pa. Super. 2002)). Significantly, we may not
       substitute our judgment for that of the fact finder; thus, so long as the
       evidence adduced, accepted in the light most favorable to the
       Commonwealth, demonstrates the respective elements of a defendant's
       crimes beyond a reasonable doubt, the appellant's convictions will be
       upheld. See Brewer, 876 A.2d at 1032. Commonwealth v. Rahman, 75
       A3d 497, 500-01 (Pa. Super. 2013) (quoting Commonwealth v. Pettyiohn,
       64 A.3d 1072 (Pa. Super. 2013)) (citations omitted).



       It is clear that "the evidence established at trial need not preclude every

possibility of innocence and the fact-finder Is free to believe all, part, or none of

the evidence presented." Commonwealth v. Brown, 52 A.3d 320, 323 (Pa. Super.

2012). 'Where there is sufficlent evidence to enable the trier of fact to find every

element of the crime has been established beyond a reasonable doubt, the

sufficiency of the evidence claim must fail."   llh at 323.




                                                9
                                    Simple Assault


       In order to sustain its burden of proof for a simple assault, the Commonwealth

must show that the Defendant "attempt[ed] to cause or intentionally1 knowingly or

recklessly cause[d] bodily injury to another.]" 18 Pa.C.S. § 2701(a)(1 ). "Bodily injury' is

defined as "(i]mpairment of physical condition or substantial pain." 18 Pa.C.S. § 2301.

"The Commonwealth need not establish that the victim actually suffered bodily injury;

rather, it is sufficient to support a conviction If the Commonwealth establishes an

attempt to Inflict bodily injury." Commonwealth v. Richardson, 636 A.2d 1195, 1196 (Pa.

Super. 1994). 'This intent may be shown by circumstances which reasonably suggest

that a defendant intended to cause injury." kh at 1196 (internal citations omitted).




       The Defendant contends that this court erred when it found the evidence

sufficient to support a simple assault conviction. He argues that the Commonwealth

failed to prove that he intended to cause injury to Michael Miller. In support of that

argument, the Defendant cites to the medical report, which did not note any visible

injuries on Inmate Miller. (Concise Statement p. 2). This contention has no merit.




       The evidence viewed in the light most favorable to the Commonwealth

established beyond a reasonable doubt that the Defendant, at the very least, attempted

to cause bodily injury to Michael Miller. This court sat as the fact-finder during trial, and,

as such, the issue of credibility was solely for this court to resolve. After carefully




                                              10
studying the tone and demeanor of the witnesses, the court found that the testimony of

CO Bezts was compelling, consistent, and carried with it the "ring of truth."




       To summarize, CO Bezts observed that the Defendant become irate after

learning that Inmate Miller had called him a ''fat ass." (TT. p. 17). He further observed

that the Defendant's face turned red after learning of the comment, and then he

watched the Defendant abruptly, and inexplicably, leave his post, storm over to Inmate

Miller's cell, scream profanities at him through the door, and demand that the cell door

be opened. (TT, pp. 17-20). Moreover, CO Bezts personally observed the Defendant

enter the cell and hit Inmate Miller twice -- first with a closed fist to the face, and then a

second strike to the chest. {TT, p. 23). CO Bezts saw the Defendant lean over Inmate

Miller, who was still sitting on his bed, and grab him by the neck with both of his hands.

(TT, pp. 22-23). Punching a person with a closed fist in the face, striking a person

forcefully in the chest and placing both hands around a person's neck are clear attempts

to cause injury to another.




       CO Bezts' testimony was found to be truthful by this court for several reasons.

First, CO Bezts had his eyes on the Defendant for all but four (4) seconds of the

incident, during which time he never saw Inmate Miller spit on the Defendant, but he did

witness the Defendant's assaultive behavior, both verbally and physically, toward

Inmate Miiier. (TT. pp. 22, 40). Second, CO Bezts had no motive or reason to fabricate

his testimony, as he had never met Inmate Miller until the day of the incident. Also, he


                                              11
no longer worked at SCI Pittsburgh, and, as such, was not trying to cover for or protect

Inmate Miller. (TT, pp. 11, 29). CO Bezts' testimony also was substantially corroborated

by Inmate Painter, especially with respect to key points regarding the incident, including

the general narrative, the specifics of the interaction, the number of times that the

Defendant hit Inmate Miller, the fact that the Defendant grabbed him by the neck, and

the fact that the Defendant was Incessantly swearing at Inmate Miller. (TT, p. 59).

Inmate Painter was inside of the cell immediately prior to, and during the assault, and

he also testified that he never saw Inmate Miller spit on the Defendant. (TT, p. 63). He

did, however, see the Defendant hit Inmate Miller in the mouth more than once. (TT, p.

59). Lastly, the fact that CO Bezts would offer testimony that adversely affected a

colleague makes his testimony even more believable.




       The Defendant testified at trial, and he offered a different account of the

events of that day. However, this court did not find the Defendant's testimony to

be credible at all. For example, this court did not believe the Defendant's claim

that he was spit on. Two of the three people present during the Incident testified

that Inmate MiUer never spit on the Defendant. Further, the fact that the

Defendant supposedly waited three (3) hours before seeking medical attention

after exposure to a potential infection-carrying substance defied credibility. (TT,

pp. 80-81 ). Frankly, the court believed that the spitting claim was an after-the-

fact justification that was contrived to explain away his behavior. Additionally,

after watching the Defendant testify, it was easy for this court to see how his

temperament had led him to such an emotional over-reaction to Inmate Miller's

                                             12
comment. Essentially, the Defendant's own demeanor lent substantial credibllity

to the testimony of CO Bezts and Inmate Painter. The Defendant's behavior of

charging over to the cell after learning that Inmate Miller had called him an

offensive name, demanding that the cell be opened, towering over the inmate

while punching him in the face and hitting him in the chest, grabbing his neck,

and swearing at him, all support a finding of intent, and attempt, to cause bodlly

injury.




          The Defendant's reliance on the medical report is unavailing. as it has

already been noted that there is no requirement that an actual injury be sustained

to prove a simple assault. Richardson, supra, at 1196. Thus, the fact that no

injuries were observable on Inmate Miller within minutes of the incident does not

preclude a finding that the Defendant specifically intended to cause such Injury

when he punched Miller in the face, hit him in the chest, and grabbed him by the

neck. The court also notes that it would be reasonable to Infer that Inmate Miller

felt pain from the assault, and that the lack of testimony regarding pain does not

preclude a finding that the Defendant caused bodily Injury. See Commonwealth

v. Jorgenson, 492 A.2d 2 (Pa. Super. 1985), rev'd. on other grounds, 517 A.2d

1287 (Pa. 1986) Oury may infer that twice striking a person across the face

causes pain even if there is not testimony of pain). Commonwealth v. Barnett,

384 A.2d 965, 968 (Pa. Super. 1978) (where appellant struck one officer with his

fists and struggled with another officer, evidence was sufficient to prove appellant

"at least attempted a simple assault upon both officers").

                                              13
        In any event, the Defendant's actions were intentional, and the

circumstances surrounding those actions were sufficient to prove that he, at the

very least, attempted to cause bodily injury. This court was free to believe all;

part, or none of the evidence, and the evidence, viewed in the light most

favorable to the Commonwealth as verdict-winner, was more than sufficient to

find, beyond a reasonable doubt, that the Defendant had a specific intent to

cause bodily injury to Inmate MiUer.




                            Official Oppression


       The Official Oppression statute states, in relevant part, that: "[a] person acting or

purporting to act in an official capacity or taking advantage of such actual or purported

capacity commits a misdemeanor of the second degree if, knowing that his conduct is

illegal, he subjects another to arrest, detention, search, seizure, mistreatment,

dispossession, assessment, lien or other infringement of personal or property rights. 18

Pa.C.S.A. §5301(1). "The statute was broadly drafted to include all opportunities for

oppressive use of official power." Commonwealth v. Checca, 491, A.2d 1358, 1366 (Pa.

Super. 1985). The official oppression statute was intended "to reach numerous

situations wherein an official engages in wrongdoing while acting in his official capacity."

KL at 1367. The statute "applies to ... aggressive action against the individual." kl at
1366 ( emphasis added).




                                             14
       The Defendant argues that this court erred in finding that the evidence was

sufficient to sustain a conviction for Official Oppression. He argues that the

Commonwealth failed to prove that Inmate Miller was mistreated by the Defendant in his

capacity as a corrections officer because Inmate Miller did not appear for trial and

because the Commonwealth "failed to offer into evidence any written prison policies and

procedures" to establish that the Defendant's "conduct was unlawful." (Concise

Statement, pp. 2-3). The Defendant also argues that the Commonwealth failed to

establish whether the Defendant "knowingly and Illegally acted in bad faith in response

to Michael Miller spitting on his face .... " (Concise Statement, p. 3). This contention

also lacks merit.




       As an Initial matter, Inmate Miller's absence at trial did not preclude a conviction

because the testimony of the two (2) eyewitnesses who directly observed the

Defendant's conduct was more than sufficient to prove the charge. Furthermore, this

court did not require evidence of any formal policies or procedures to comprehend that

an on-duty corrections officer physically assaulting an inmate without sufficient

justification is unlawful. It must be pointed out that there was no suggestion at any time

that the Defendant was off-duty or not within the scope of his employment duties as a

corrections officer when this incident occurred. The court notes, however, that there

was testimony regarding how the Defendant violated prison policy and procedure when

he left the control booth without a legitimate reason and when he entered the cell

without first asking the inmates to exit. (TT, pp. 18, 27-28).




                                             15
        In any event, the circumstances surrounding the assault were more than

 sufficient to prove that the Defendant abused his power as a corrections officer and

 mistreated Inmate Miller. The assault occurred in a small, 8x1 O cell, in an area that was

 outside the ambit of the surveillance cameras. (TI, pp. 60-61, 74). It is reasonable to

 infer that, because the assault occurred in such small quarters, out of public view, the

threatening nature of the entire interaction was significantly heightened. (TI, pp. 36- _

37). Further, Inmate Miller was seated on the edge of his bed when the Defendant

entered the cell and began hitting, grabbing, and swearing at him, and Miller remained

seated during the assault. (TI, pp. 23, 58-59). There was also a substantial physical

disparity between the Defendant and Inmate Miller, since the Defendant was "a big guy"

and Inmate Miller was only 5' 4" and 140 pounds. (TI, pp. 23-24, 59).




       As noted earlier, this court did not believe the Defendant's testimony that Inmate

Miller spit on him. To the contrary, the court believed that the only thing which provoked

the Defendant's aggressive, hostile and physically abusive conduct was the fact that he

was called an offensive name. The Defendant's behavior is precisely the kind that the

statute was designed to encompass. While Inmate Miller may have hurt the

Defendant's feelings, certainly the Defendant did not require a manual or policies and

procedures to inform him that his brutish, aggressive and violent response to name-

calling was unlawful. The Defendant abused his position as a corrections officer when

he left his post without justification, demanded entry into Miller's cell, and committed an

assault therein simply because he was angry or offended that he was called a name.

Accordingly, the evidence presented by the Commonwealth was sufficient to prove

                                             16
beyond a reasonable doubt that the Defendant mistreated Inmate Miller while acting in

his official capacity. This court respectfully requests that the Defendant's contentions

be rejected on appeal.




Ill.   CONCLUSION

       The Defendant's allegations of error on appeal are without merit. Based on the

foregoing, sufficient evidence was presented to support the Defendant's convictions for

simple assault and official oppression. The Defendant's convictions should, therefore,

be upheld.


                                         BY THE COURT:




                                         DATE




                                           17
