J-S76033-14


                                 2015 PA Super 7

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                           Appellant

                    v.

DAVID J. BLACK

                           Appellee                   No. 1179 WDA 2014



                Appeal from the Order Entered July 18, 2014
              In the Court of Common Pleas of Fayette County
            Criminal Division at No(s): CP-26-CR-0000523-2014


BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OLSON, JJ.

OPINION BY OLSON, J.:                               FILED JANUARY 13, 2015

      The Commonwealth appeals from the order entered on July 18, 2014,

granting the petition for writ of habeas corpus filed on behalf of David J.

Black (hereinafter “Sergeant Black”) and dismissing the charge of recklessly

endangering another person (hereinafter “REAP”). We vacate and remand

for further proceedings.

      On February 21, 2014, the Commonwealth filed a criminal complaint

against Sergeant Black, accusing him of REAP while he was working at the

State Correctional Institute at Fayette (hereinafter “SCI-Fayette”).      The

attached affidavit of probable cause averred the following:

        On [October 20, 2013, Sergeant Black] did engage in
        conduct which placed another person in danger of death or
        serious bodily injury. To [w]it: [Sergeant Black] admitted
        to his immediate supervisor that he opened an empty cell at
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        [SCI-]Fayette and allowed two inmates to enter for the
        purpose of “[s]ettling their differences.” Inmate Alexander
        Fulton [(hereinafter “Mr. Fulton”)] and Inmate Brandon
        Duncan [(hereinafter “Mr. Duncan”)] entered the empty cell
        when [Mr. Fulton] struck [Mr. Duncan] in the head with a
        combination lock that was concealed in a brown knit hat.
        This caused serious bodily injury to [Mr. Duncan] that
        required medical attention. Review of cell door reports,
        video footage[,] and interviews conducted revealed that
        [Sergeant Black] was alone in the control booth at the time
        the unoccupied cell was opened and [he] was the only
        person who could have opened the cell. There were several
        safeguards in place that would have indicated the cell was
        unoccupied[, which] include[:] the computer touch screen in
        the control booth, the count board and the move book, all
        of which would have told [Sergeant Black] the cell was
        empty. [All o]ther correction officers on duty at the time
        were [] aware that the cell [Sergeant Black] opened was
        empty. This cell was also “capped” which prevents it from
        being opened [accidentally]. . . .

        A [timeline] that was created from these reports shows that
        [Sergeant Black] was first seen talking with [Mr. Fulton],
        and then seconds later [Sergeant Black] opened [Mr.
        Fulton’s] locked cell. It is believed that this is when [Mr.
        Fulton] retrieved the combination lock used in the assault.
        A few seconds later [Sergeant Black] opened the cell where
        the assault took place. . . .

        After the fight was over, [Sergeant Black] admitted to
        [Captain]    Richard    Workman       [hereinafter  (“Captain
        Workman”)] that he opened the cell door and allowed the
        inmates to “[s]ettle their differences, but didn’t think they
        would fight.”       [Sergeant Black] is responsible for
        maintaining security and safe operations within their unit in
        accordance with the guidelines established through
        appropriate departmental and institutional directives,
        rules[,] regulations[,] policies[,] and special orders. It is
        [Sergeant Black’s] responsibility and duty to provide care,
        custody[,] and control to the inmates on his post. . . .

Affidavit of Probable Cause, 2/21/14, at 1.




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       Sergeant Black’s preliminary hearing took place on March 17, 2014.

During this preliminary hearing, the magisterial district judge heard

testimony from Mr. Duncan, Captain Workman, and Criminal Investigator

Frank J. Kamalich (hereinafter “Investigator Kamalich”).

       During the preliminary hearing, Mr. Duncan testified that, at the time

of the assault, he was an inmate at SCI-Fayette and was housed on the

prison’s “F Block.”1      N.T. Preliminary Hearing, 3/17/14, at 6. Mr. Duncan

testified that Mr. Fulton was a fellow inmate at SCI-Fayette and that Mr.

Fulton was also housed on F Block. Id. at 7. As Mr. Duncan testified, while

Mr. Fulton spent most of his time in a wheelchair, Mr. Fulton was “fully

capable” of doing such things as “walking, exercising, [and] working out.”

Id. at 18. Sergeant Black was the sergeant on F Block. Id. at 6.

       Mr. Duncan testified that, in the days prior to the assault, he and Mr.

Fulton had been at odds.          Specifically, Mr. Duncan testified that:   on or

about October 17, 2013, he and Mr. Fulton had “a little verbal altercation;”

on October 18, 2013, he and Mr. Fulton “spoke shortly;” and, on October 19,

2013, he and Mr. Fulton had “probably about a . . . five-minute argument.”

Id. at 11.      As to whether Sergeant Black was aware of the animosity

between Mr. Duncan and Mr. Fulton, Mr. Duncan testified:                “me and


____________________________________________


1
 Mr. Duncan testified that, at the time of the assault, he was 31 years old
and was serving a 20 to 40 year term of imprisonment for third-degree
murder. N.T. Preliminary Hearing, 3/17/14, at 17-18.



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Sergeant Black never spoke with each other, so I wouldn’t be able to say

with certainty that [the sergeant] was aware of” the conflict between Mr.

Duncan and Mr. Fulton. Id. at 11-12.

       As Mr. Duncan testified, on the evening of October 19, 2013,2 the 35

to 40 inmates on F Block were outside of their cells and congregating in the

“day room,” where they were able to do such things as “[w]atch TV[,] play

cards, [or] use the phone.” Id. at 7 and 14. The evidence demonstrates

that, while the inmates were in the day room, the relevant prison cells at

issue were locked and could only be opened from the guard’s control room.

See id. at 44-46 and 49-50.           Moreover, the evidence demonstrates that,

during the relevant time, Sergeant Black was the only prison official in the

guard’s control room. Id. at 54.

       Mr. Duncan testified that, while the inmates were congregating in the

day room, he saw Sergeant Black in the guard’s control room, speaking with

Mr. Fulton. Id. at 8. Mr. Duncan testified that, after Mr. Fulton spoke to

Sergeant Black, Mr. Duncan saw that Mr. Fulton was allowed back into his

own cell for “maybe half a minute or whatever.” Id. at 8. Mr. Duncan then

witnessed Mr. Fulton exit his cell, roll his wheelchair toward an empty cell “in




____________________________________________


2
 Both Mr. Duncan and Captain Workman testified that the assault occurred
on October 19, 2013. However, Investigator Kamalich testified that the
assault occurred on October 20, 2013.



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the back of the block,” exit his wheelchair, and walk into the empty cell. Id.

at 8-9.

      According to Mr. Duncan, after Mr. Fulton was inside of the rear prison

cell, Mr. Fulton “screamed” for Mr. Duncan’s attention.           Id. at 20.   Mr.

Duncan testified that he arose from his seat and walked toward the rear

prison cell. When he reached the cell, Mr. Duncan testified that he heard the

“clack-clack” of the prison cell door unlocking.      Id. at 9.    The door then

opened, with Mr. Fulton standing inside of the darkened prison cell. Id. at

20.

      With the door to the cell open, Mr. Duncan asked Mr. Fulton “[w]hat’s

going on?,” with Mr. Fulton replying “[n]othing, I just want to rumble.” Id.

At that point, Mr. Duncan testified, he felt as though prison culture left him

with “no other choice but to go in . . . that cell” and fight Mr. Fulton. Id. at

32. Mr. Duncan testified:

          If I wouldn’t have [gone back there and fought him], I’d be
          like the biggest coward, like in the jail, if I’d just sat there
          and the cell opened up and he’s in there, and I’m just like,
          “Okay, now, I’m cool. I’m not going in there and fight him.”
          You know. . . . I just felt like, you know, that my back was
          up against a wall. Like, now, the cell’s opened up. You
          either go in there or, you know, like I’d be a coward.

Id. at 14-15 and 33.

      Mr. Duncan testified that he walked into the cell, turned on the light,

and – at that moment – was struck in the back of his head with a

combination lock that was swung, by Mr. Fulton, from inside of a winter hat.



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J-S76033-14



Id. at 10 and 27. As Mr. Duncan testified, after Mr. Fulton struck him with

the lock: “We fight. I held his hand trying to get the lock off of him. I hit

him a couple times, and a couple [correctional officers] came in there and

broke the fight up.” Id. at 10.

      Mr. Duncan testified that the assault caused him to suffer a gash to his

head, which required six staples to close. Id. at 11.

      Captain Workman next testified at the preliminary hearing.        Captain

Workman testified that, on the night of October 19, 2013, he was the shift

commander at SCI-Fayette. According to Captain Workman:

        At approximately 2000 hours, I received a phone call from
        Sergeant Black from . . . F Unit – that’s his regular unit.
        And he said he wanted to discuss an incident with me but
        not over the telephone. He said he wanted to meet me on
        the walks. And I told him, I said, “No,” I said, “Tell me
        what’s going on.” And he said that he had messed up. He
        said he let an inmate into a cell, two [] inmates fought, and
        that’s what had happened. So, then, I told him, I said,
        “Well, what I’ll do is, I’m going to send Lieutenants down.
        They’re going to collect the inmates. They’re going to take
        them to medical to be assessed for injuries, then they’ll be
        processed into the RHU.” And, then, I told Sergeant Black,
        I said, “Make sure your misconducts and your 121’s are in
        order and get them to Control when completed.”

Id. at 36-37.

      The evidence at the preliminary hearing indicates that the fight

between Mr. Fulton and Mr. Duncan occurred at approximately 7:45 p.m.

and that Captain Workman received the above-summarized telephone call at

approximately 8:06 p.m.       Id. at 51-52.     However, Captain Workman

testified, in those intervening 21 minutes, no other prison official had been


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informed of the fight between Mr. Fulton and Mr. Duncan – including those in

the medical department. Id. at 37-38. Captain Workman testified that this

delay in notification was contrary to established prison procedure. According

to Captain Workman:

        If inmates fight, as soon as it’s discovered, then the person
        would call Control and say, “Hey, we got a fight.” That way,
        you know to dispatch officers as needed to stop it. The
        inmates are then secured, then they’ll go to RHU – or
        medical to be assessed for injuries, then they’ll be
        processed into the RHU.

Id. at 37.

      Captain Workman testified that, later on that night, he was doing his

rounds in the prison when Sergeant Black approached him to talk. Captain

Workman testified:

        [Sergeant Black] asked me if he could talk to me, and I
        said, “Yeah, you can talk to me.” And then he said that he
        thought that the inmate still lived in that cell where the fight
        occurred, and that he didn’t know that they were going to
        fight. He said they went in there to settle a difference, but
        he didn’t think they were going to fight. He told me, he
        said, “You know, I’m going to be honest with you. I don’t
        want to lie to you.” And I stopped him, I said, “Listen,
        security is going to be looking into this.” I said, “When
        security questions you, go ahead and tell the truth,” and
        then I went and completed my rounds.

Id. at 38-39.

      Captain Workman explained that the fight occurred in a “capped”

prison cell – which, in this case, meant that the cell was unoccupied and that

it would not open unless it was specifically unlocked by the guard in the

control room.   Id. at 44-45.   Captain Workman testified that there would

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J-S76033-14



have been no “reason when inmates are in the day room to allow inmates

into an empty or vacant cell.” Id.

       The final witness to testify at the preliminary hearing was Investigator

Kamalich. Investigator Kamalich testified that he is a criminal investigator

for   the    Department     of   Corrections’     Office   of   Special   Investigations

Intelligence and that he investigated the actions of SCI-Fayette’s employees

on the night of October 20, 2013.3               Id. at 47.     Investigator Kamalich

testified that the video surveillance, electronic prison cell “door reports,”4

and interviews revealed the following:

            if you recall from [Mr. Duncan’s] testimony, [Mr. Duncan
            and Mr. Fulton] had their final disagreement, and that’s
            when [Mr. Fulton] went up to the bubble[5] and talked with
            Sergeant Black up at the bubble. The video shows, [Mr.
            Fulton] then turns from there and heads behind [Mr.
            Duncan] who’s seated in the day room.

                                           ...

            And you see [Mr.] Fulton go behind [Mr. Duncan] and then
            go into his cell. And I believe that he was in there for [41]
____________________________________________


3
  Investigator Kamalich testified that the Department of Corrections’ Office
of Special Investigations Intelligence is similar to a law enforcement
agency’s internal affairs division. N.T. Preliminary Hearing, 3/17/14, at 47.
Investigator Kamalich testified that he “[doesn’t] literally deal with inmates.
[He] deal[s] with employees – staff.” Id.
4
  Investigator Kamalich testified that “[e]very time a door opens and closes,
it generates a report.” N.T. Preliminary Hearing, 3/17/14, at 48.
5
  The “bubble” is prison vernacular for the guard’s control booth.                 N.T.
Preliminary Hearing, 3/17/14, at 8.



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J-S76033-14


        seconds. Then, you see him come back out of the cell, and
        you see it close. . . . [Mr. Fulton] turns to the right to head
        back to the cell that they fought in. . . . [17] seconds after
        [Mr. Fulton left his cell, the vacant cell – numbered cell 108
        – opened].

                                     ...

        Officer Cercone tells me that he was out back smoking
        [when all of this occurred]. . . . [Officer Cercone] was
        returning back to [his station] when he saw Sergeant Black
        sort of rushing out of the bubble headed back towards the
        108 cell. He doesn’t know what’s going on. He follows
        Sergeant Black and Officer Bigelow back to that cell where
        they find [Mr.] Duncan and [Mr.] Fulton fighting, and they
        get in there and they break up the fight. Now, [Officer]
        Cercone tells me that they just let [Mr.] Fulton to go lock in
        his cell which is around the corner, 115 cell, but they didn’t
        take the lock or anything off of him or pat him down or
        search him. He should have been cuffed right there. That’s
        the policy, and that’s when [Captain] Workman should have
        been called when, in fact, [Captain] Workman wasn’t called
        for [21] minutes after that happened.

Id. at 49-51.

     Investigator Kamalich indicated that Sergeant Black should have

known that cell 108 was vacant and that Sergeant Black should not have

opened the cell for either Mr. Fulton or Mr. Duncan.             According to

Investigator Kamalich:

        this is [Sergeant Black’s] regular gig. This is where he
        works every day, in this F Block. Not only do you know
        your inmates, you know what cell they’re in, you know what
        cells are empty. Now, there’s several things that [would
        have indicated that cell 108 was vacant]. There’s what they
        call a count board. There’s a huge board as you walk inside
        the bubble where the Sergeant usually works, and it shows
        who’s in each cell, and they also have a line through if
        there’s an empty cell. That’s one way. There’s also what
        they call a move book. The move book would show that if


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        an inmate moved while Sergeant Black was on duty, clearly
        it would show that. It’s his responsibility to review that
        material when he changed shifts. . . . The third way would
        be, they have an automatic touch screen inside the control
        bubble; and, when a door is capped, as [Captain] Workman
        explained to you, there’s a light that indicates on there if it’s
        a capped cell. There’s a reason it’s capped, because it’s
        empty; because, when they would do what they call a group
        release and open up a whole range of doors, that would
        prevent that empty cell from opening.

Id. at 52-53.

      At the conclusion of the preliminary hearing, the magisterial district

judge bound Sergeant Black over for court on the charge of REAP.            Id. at

67.

      On April 21, 2014, Sergeant Black filed an “omnibus pre[-]trial motion

for relief in the nature of a writ of habeas corpus and in the nature of a

motion to dismiss based upon a lack of evidence to make a prima facie case”

(hereinafter “Sergeant Black’s petition for writ of habeas corpus”). Sergeant

Black’s petition for writ of habeas corpus, 4/21/14, at 1 (some internal

capitalization omitted) (internal italicization added). Within Sergeant Black’s

petition for writ of habeas corpus, Sergeant Black claimed that “[t]he

Commonwealth failed to meet its prima facie case to establish that

[Sergeant Black] committed the crime of [REAP] . . . [because the

Commonwealth] . . . offered [no] evidence to show that [Sergeant Black]

knew that the two inmates were going to fight, knew that either inmate was

accompanied by a weapon, or acted any differently in his response to the

fight.” Id. at 2-3.



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       On June 9, 2014, the trial court held a hearing on Sergeant Black’s

petition for writ of habeas corpus, during which time the Commonwealth

introduced the transcript from the March 17, 2014 preliminary hearing and

Sergeant Black introduced two written statements that Mr. Fulton gave to

investigators.6    N.T. Habeas Corpus Hearing, 6/9/14, at 2-7.       The hearing

then concluded without the introduction of any new testimony.

       On July 18, 2014, the trial court entered an order granting Sergeant

Black’s petition for writ of habeas corpus and dismissing the charge of REAP.

Within the trial court’s contemporaneously filed opinion, the trial court

explained that it was granting Sergeant Black relief because it found that

“[Mr.] Fulton asked [Sergeant Black] to open the cell so that he could get

some food from the cell” and that “[Sergeant Black] was not aware that

[Mr.] Fulton planned to fight with [Mr.] Duncan.”            Trial Court Opinion,

7/18/14, at 2.         As a result of these factual findings and credibility

determinations, the trial court concluded that it is “establish[ed]” that

Sergeant Black “was unaware that the cell was being opened so that a fight

could take place.”       Id. at 3-4.     The trial court thus concluded that “the

Commonwealth failed to sustain its burden that [the crime of REAP] had

been committed.” Id. at 4.



____________________________________________


6
  The written statements that Mr. Fulton gave to the investigators are not
included in the certified record.



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      The Commonwealth filed a timely notice of appeal and now raises the

following claim to this Court:

        Whether the [trial] court erred in granting [Sergeant
        Black’s]   pre[-]trial  motion     to   dismiss   when the
        Commonwealth established a prima facie case that
        [Sergeant Black] consciously disregarded a known risk of
        death or serious[] bodily injury to the victim[?]

The Commonwealth’s Brief at 1 (some internal capitalization omitted).

      As this Court has explained:

        The decision to grant or deny a petition for writ of habeas
        corpus will be reversed on appeal only for a manifest abuse
        of discretion. It is settled that a petition for writ of habeas
        corpus is the proper means for testing a pre-trial finding
        that the Commonwealth has sufficient evidence to establish
        a prima facie case. Although a habeas corpus hearing is
        similar to a preliminary hearing, in a habeas corpus
        proceeding the Commonwealth has the opportunity to
        present additional evidence to establish that the defendant
        has committed the elements of the offense charged. . . .

        A prima facie case consists of evidence, read in the light
        most favorable to the Commonwealth, that sufficiently
        establishes both the commission of a crime and that the
        accused is probably the perpetrator of that crime. The
        Commonwealth need not prove the defendant’s guilt beyond
        a reasonable doubt. Rather, the Commonwealth must show
        sufficient probable cause that the defendant committed the
        offense, and the evidence should be such that if presented
        at trial, and accepted as true, the judge would be warranted
        in allowing the case to go to the jury.

Commonwealth v. Fountain, 811 A.2d 24, 25-26 (Pa. Super. 2002)

(internal quotations and citations omitted).

      We have held that “[i]n determining the presence or absence of a

prima facie case, inferences reasonably drawn from the evidence of record


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that would support a verdict of guilty are to be given effect, but suspicion

and   conjecture    are   not   evidence   and   are   unacceptable   as     such.”

Commonwealth v. Hendricks, 927 A.2d 289, 291 (Pa. Super. 2007)

(internal quotations and citations omitted). Further, since a trial court must

view the evidence in the light most favorable to the Commonwealth when

ruling upon a petition for writ of habeas corpus, “it is inappropriate for the

trial court to make credibility determinations in deciding whether the

Commonwealth established a prima facie case.”              Commonwealth v.

Landis, 48 A.3d 432, 448 (Pa. Super. 2012).

      On appeal, the Commonwealth claims that the trial court erred when it

granted Sergeant Black’s petition for writ of habeas corpus. According to the

Commonwealth, when the           record is viewed in the       proper      light, it

demonstrates that the Commonwealth presented a prima facie case that

Sergeant Black committed the crime of REAP.             As the Commonwealth

argues:

          [Sergeant Black] placed [Mr. Duncan] in [a “capped” cell]
          with an inmate [Mr. Duncan] had issues with who was given
          the opportunity to go to his cell moments before [the] cell
          was opened.        [Sergeant Black’s] actions allowed [Mr.]
          Duncan’s assailant to arm himself and gave him a [vacant]
          cell to settle differences. . . . [Sergeant Black] created a
          ring and threw [Mr.] Duncan in it with an inmate who had
          the opportunity to gather a weapon, thus [Sergeant Black]
          consciously disregarded a risk of death or serious bodily
          injury.

The Commonwealth’s Brief at 6-7.




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      We agree with the Commonwealth and, therefore, we vacate the trial

court’s order and remand for further proceedings.

      The Commonwealth charged Sergeant Black with REAP, which is

defined in the following manner:

        § 2705. Recklessly endangering another person

        A person commits a misdemeanor of the second degree 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.A. § 2705.

      “Serious bodily injury” is defined as “[b]odily 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.A. § 2301. “Bodily injury” is defined as an “[i]mpairment

of physical condition or substantial pain.” Id.

      This Court has explained that the crime of REAP is “directed against

reckless conduct entailing a serious risk to life or limb out of proportion to

any utility the conduct might have.”        Commonwealth v. Vogelsong, 90

A.3d 717, 719 (Pa. Super. 2014) (internal quotations and citations omitted).

For the Commonwealth to establish a prima facie case of REAP, the evidence

must show that “the defendant had an actual present ability to inflict harm

and not merely the apparent ability to do so.              Danger, not merely the

apprehension    of   danger,   must    be      created.”      Commonwealth     v.

Martuscelli, 54 A.3d 940, 949 (Pa. Super. 2012).             However, as we have

explained, “[i]t is not [the defendant himself] that must be [shown] to have

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the present ability to cause death or serious bodily injury to another, it is

[the defendant’s] actions.” Vogelsong, 90 A.3d at 721 (defendant’s action

of allowing her horse to roam freely on a roadway was sufficient to sustain a

conviction for REAP).

     The mens rea for REAP is recklessness.       Under the Crimes Code, a

person acts recklessly with respect to a material element of an offense

when:

        he consciously disregards a substantial and unjustifiable risk
        that the material element exists or will result from his
        conduct. The risk must be of such a nature and degree
        that, considering the nature and intent of the actor’s
        conduct and the circumstances known to him, its disregard
        involves a gross deviation from the standard of conduct that
        a reasonable person would observe in the actor’s situation.

18 Pa.C.S.A. § 302(b)(3).

     Thus, to establish a prima facie case of REAP against Sergeant Black,

the Commonwealth must demonstrate that Sergeant Black consciously

disregarded a substantial and unjustifiable risk that his conduct “placed or

may have placed [Mr. Duncan] in danger of serious bodily injury or death.”

Vogelsong, 90 A.3d at 721.

     At the outset, we conclude that the trial court erred when it made

factual findings and credibility determinations from the evidence that was

presented during the habeas corpus hearing. As was explained above, the

trial court granted Sergeant Black’s petition for writ of habeas corpus and

dismissed the REAP charge against Sergeant Black primarily because the



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court had reached three factual findings: that “[Mr.] Fulton asked [Sergeant

Black] to open the cell so that he could get some food from the cell;” that

“[Sergeant Black] was not aware that [Mr.] Fulton planned to fight with

[Mr.] Duncan;” and, that Sergeant Black “was unaware that the cell was

being opened so that a fight could take place.” Trial Court Opinion, 7/18/14,

at 2-4.     These factual determinations were apparently garnered from

statements that Mr. Fulton made to investigators – and that Sergeant Black

introduced, on his own behalf, during the habeas corpus hearing. See Trial

Court Opinion, 7/18/14, at 2 (trial court citing to Mr. Fulton’s statements as

supporting its factual findings).

      However, as we have explained, Mr. Fulton’s statements were not

included in the certified record to this Court.   Moreover, to the extent Mr.

Fulton’s statements support Sergeant Black’s version of the events, the

statements were irrelevant to deciding Sergeant Black’s petition for writ of

habeas corpus and are irrelevant to deciding the instant appeal.          See

Commonwealth v. Fountain, 811 A.2d 24, 25 (Pa. Super. 2002) (“[a]

prima facie case consists of evidence, read in the light most favorable to

the Commonwealth, that sufficiently establishes both the commission of a

crime and that the accused is probably the perpetrator of that crime”)

(emphasis     added)     (internal   quotations   and    citations   omitted);

Commonwealth v. Wojdak, 466 A.2d 991, 997 (Pa. 1983) (“the weight

and credibility of the evidence are not factors” for determining whether the

Commonwealth has presented a prima facie case).

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      The trial court thus erred when it made credibility determinations and

concluded that Mr. Fulton’s (alleged) statements to the investigators were

true. Simply stated, the credibility of Mr. Fulton’s statements could not and

should   not   have   been    considered      when   determining   whether   the

Commonwealth presented a prima facie case against Sergeant Black.

Wojdak, 466 A.2d at 997.

      Further, we conclude that, when the evidence is viewed in the light

most favorable to the Commonwealth, the evidence “sufficiently establishes

both the commission of [the] crime [of REAP] and that [Sergeant Black wa]s

probably the perpetrator of that crime.” Fountain, 811 A.2d at 25-26.

      Viewed in the light most favorable to the Commonwealth, the direct

evidence in this case demonstrates the following: in the days prior to the

assault, Mr. Duncan and Mr. Fulton had been verbally hostile to one another;

immediately prior to and during the assault, the inmates on F Block were in

the “day room” and were locked out of their cells; immediately prior to and

during the assault, Sergeant Black was the only corrections officer who was

in the guard’s control room and Sergeant Black was the only individual who

could have opened the locked prison cells; Mr. Fulton spoke with Sergeant

Black minutes prior to the assault; immediately after Mr. Fulton spoke with

Sergeant Black, Sergeant Black opened Mr. Fulton’s cell and allowed Mr.

Fulton to enter his cell; Mr. Fulton was inside of his cell for 41 seconds; after

Mr. Fulton left his cell, Mr. Fulton immediately went down to the end of the

hall, where Sergeant Black opened a vacant, “capped” cell for Mr. Fulton;

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when Sergeant Black opened the “capped” cell, Sergeant Black knew that

Mr. Fulton intended to use the cell to “settle a difference” with Mr. Duncan;

after Mr. Fulton entered the cell, Mr. Fulton “screamed” for Mr. Duncan’s

attention – while 35 to 40 inmates congregated in the day room; Mr. Duncan

walked back to the cell where Mr. Fulton was waiting and, when Mr. Duncan

got back to the cell, Sergeant Black opened the cell for Mr. Duncan to enter;

when Sergeant Black opened the cell door, Mr. Duncan felt as though prison

culture left him with “no other choice but to go in . . . that cell” and fight Mr.

Fulton; Mr. Duncan entered the cell, turned around to turn on the light to

the darkened cell, and was struck in the back of his head with a combination

lock that was swung, by Mr. Fulton, from inside of a winter hat; and, the

assault caused Mr. Duncan to suffer a gash to the back of his head, which

required six staples to close.

      A number of reasonable inferences may be drawn from this direct

evidence.   Again, viewing the evidence in the light most favorable to the

Commonwealth which we must do, these inferences include: Sergeant Black

knew that Mr. Fulton was going to use the “capped” cell to fight Mr. Duncan;

Sergeant Black not only knew that Mr. Fulton was going into the fight armed

with a weapon, but Sergeant Black enabled Mr. Fulton to arm himself with a

combination lock in preparation for the fight; Sergeant Black knew that,

when he unlocked the “capped” cell door, there was a substantial risk that,

in view of the culture within the prison, Mr. Duncan would be forced to enter

the cell and accede to the fight with Mr. Fulton; and, Sergeant Black knew

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that Mr. Duncan was going into the fight weaponless, against a weapon-

wielding opponent.

     Obviously, we have a limited record at this stage and the above

inferences are not the only inferences that may be drawn. A fact finder at

trial may reach a different conclusion.    However, when the evidence is

viewed in the light most favorable to the Commonwealth, the above

inferences are reasonable and are sufficient to support a prima facie case

that Sergeant Black consciously disregarded a substantial and unjustifiable

risk that his conduct “placed or may have placed [Mr. Duncan] in danger of

serious bodily injury or death.” Vogelsong, 90 A.3d at 721.

     The evidence is thus sufficient to establish a prima facie case against

Sergeant Black, with respect to the crime of REAP. The trial court erred in

concluding otherwise.

     Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/13/2015




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