J-S39023-17

                              2017 PA Super 239

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                    v.

JAMES LAMONT DOMEK

                         Appellant                   No. 1529 WDA 2016


               Appeal from the PCRA Order September 12, 2016
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0016570-2012


BEFORE: BENDER, P.J.E., BOWES AND STRASSBURGER,* JJ.

OPINION BY BOWES, J.:                                  FILED JULY 21, 2017

      James Lamont Domek appeals from the September 12, 2016 order

denying his PCRA petition without a hearing. We reverse and remand for a

new trial.

      On August 29, 2012, a City of Pittsburgh police officer transported

Appellant to the Allegheny County Jail.    Two Allegheny County corrections

officers (“CO”), CO Dabrowski and CO Bonenberger, then proceeded to take

him through the standard inmate intake procedures.           We previously

recounted the salient facts in Appellant’s direct appeal:

      When Appellant arrived at the sally port . . ., he initially
      complied with the search of his person.        However, when
      Appellant was asked to place his fingers inside his mouth, [in
      order to facilitate inspection], he became noncompliant, using
      profanity at CO Dabrowski.         The CO gave him several
      opportunities to comply and warned Appellant that if he
      continued in his non-compliance, Dabrowski would have to assist


* Retired Senior Judge assigned to the Superior Court.
J-S39023-17



     him in opening his mouth. According to Dabrowski, Appellant
     replied, “[F---] You, go ahead.”

     As Dabrowski reached forward to grab the lower part of
     Appellant’s mouth, Appellant smacked away Dabrowski’s hand.
     Appellant began to stand up, tried to grab Dabrowski and
     engaged in a struggle with the CO. Appellant attempted to
     punch Dabrowski at which point Dabrowski countered with a
     closed-hand strike to Appellant’s face, knocking him backward.
     CO Marjorie Bonenberger then intervened, grabbed Appellant by
     the hair and assisted Dabrowski in getting Appellant to the
     ground.     Unfortunately, Bonenberger ended up underneath
     Appellant on the ground. While on the ground[,] Appellant
     refused to place his hands behind his back. Sergeant Robert
     Bytner then arrived to the melee and tasered Appellant into
     submission. This incident was recorded by a camera within the
     sally port and the video was played to the jury.

Commonwealth v. Domek, 108 A.3d 126 (Pa.Super. 2014) (unpublished

memorandum) at *1-3.

     As a result of the scuffle, CO Bonenberger sustained a shoulder injury

which required surgery. She was unable to return to work for ten months.

Appellant was charged with a number of offenses relating to this encounter.

     Following a jury trial, Appellant was found guilty of one count of

aggravated assault for his attack on CO Bonenberger, and acquitted of two

counts of assault by prisoner. The court imposed a sentence of twenty-two

to 120 months incarceration, and Appellant sought review with this Court.

On appeal, Appellant challenged, inter alia, the sufficiency of the evidence

underlying his conviction for aggravated assault.   We reviewed the record

and found sufficient evidence that Appellant acted intentionally in causing




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bodily injury to the officers.   Id.   Appellant did not seek further review

before the Pennsylvania Supreme Court.

      On March 16, 2015, Appellant filed a PCRA petition with the aid of

Molly Maguire Gaussa, Esquire, alleging, in part, that trial counsel was

ineffective for failing to object to the jury instruction regarding aggravated

assault. On July 23, 2015, the court issued a Rule 907 notice of its intent to

dismiss Appellant’s PCRA petition without a hearing.

      Before the court took action on Appellant’s PCRA petition, Attorney

Maguire Gaussa sought permission to withdraw from her representation.

The court granted permission to withdraw and appointed new counsel,

Heather Kelly, Esquire. On April 11, 2016, Attorney Kelly filed an amended

PCRA petition, which included Appellant’s original claim that trial counsel was

ineffective for failing to object to the allegedly erroneous jury instruction.

The court again issued a Rule 907 notice of its intent to dismiss Appellant’s

amended PCRA petition, and on September 12, 2016, it dismissed that

petition without a hearing.

      Following the dismissal of Appellant’s PCRA petition, the court

permitted Attorney Kelly to withdraw from representation and appointed

instant counsel for this appeal. Appellant filed a timely notice of appeal and

complied with the PCRA court’s order to file a Rule 1925(b) concise

statement of errors complained of on appeal. The PCRA court authored its

Rule 1925(a) opinion, and this matter is ready for our review.

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      Appellant raises a single question for our consideration:

   1. Was trial counsel ineffective in failing to recognize that the mens
      rea of recklessness was not an element of the version of
      aggravated assault for which Appellant was on trial, and in
      failing to object or otherwise correct the trial court’s erroneous
      jury charge which permitted the jury to return a guilty verdict
      upon a finding that Appellant acted recklessly?

Appellant’s brief at 3.

      When reviewing a court’s denial of a PCRA petition, our review is

limited to the evidence of record and the factual findings of the PCRA court.

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc).

This Court will afford “great deference to the factual findings of the PCRA

court and will not disturb those findings unless they have no support in the

record.” Id. When a PCRA court’s ruling is supported by the evidence of

record and is free of legal error, we will not disturb its decision.        Id.

However, we review the court’s legal conclusions de novo. Commonwealth

v. Williams, 141 A.3d 440, 452 (Pa. 2016).

      Appellant challenges trial counsel’s stewardship in failing to object to

an inaccurate jury charge. In analyzing a claim of ineffective assistance of

counsel, “we begin with the presumption [that] counsel is effective.”

Commonwealth v. Cousar, 154 A.3d 287, 296 (Pa. 2017) (citation

omitted). In order to succeed on such a claim, an appellant must establish,

by a preponderance of the evidence:

      (1) the underlying claim has arguable merit; (2) no reasonable
      basis existed for counsel’s actions or failure to act; and (3)

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J-S39023-17



      appellant suffered prejudice as a result of counsel’s error, with
      prejudice measured by whether there is a reasonable probability
      that the result of the proceeding would have been different.

Id. at 296-297.

      Appellant argues that trial counsel rendered ineffective assistance of

counsel when she failed to object to the jury instruction for aggravated

assault under 18 Pa.C.S. § 2702(a)(3), which instructed the jury that it

could find Appellant guilty of aggravated assault if it believed he recklessly

caused bodily injury to CO Bonenberger. The instruction in question reads,

in pertinent part, as follows:

            [Appellant] has been charged with aggravated assault
      causing bodily injury. If you find [Appellant] guilty of this
      offense, you must find that the following elements have been
      proven beyond a reasonable doubt[.]

      ....

           And    third,   that   [Appellant]  acted     intentionally,
      knowingly, or recklessly under circumstances manifesting
      extreme indifference to the value of human life[.]

      ....

            A person acts recklessly when he consciously disregards a
      substantial and unjustifiable risk that bodily injury will result
      from his conduct. The risk must be of such a nature and degree
      that when considering the nature and intent of [Appellant’s]
      conduct and circumstances known to him, its disregard involved
      a gross deviation from the standard of care that a reasonable
      person would observe in that situation. It is shown by the kind
      of reckless conduct which a life threatening injury is certain to
      occur.




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J-S39023-17



N.T. Trial, 7/16/13, at 78-80 (emphasis added). Appellant was charged with

aggravated assault under 18 Pa.C.S. § 2702(a)(3). That section reads:

   (a)   Offense defined.--A person is guilty of aggravated assault if
         he:

         ....

         (3) attempts to cause or intentionally or knowingly causes
         bodily injury to any of the officers, agents, employees or
         other persons enumerated in subsection (c), in the
         performance of duty[.]

18 Pa.C.S. § 2702(a)(3) (emphasis added).           Subsection (c) includes

correctional officers.   18 Pa.C.S. § 2702(c).    As can be seen from an

examination of the above-quoted statutory language, there is no question,

and the Commonwealth does not dispute, that the jury charge should not

have included recklessness as a sufficient mens rea.

      Appellant contends that there could be no reasonable basis for trial

counsel’s failure to object to the jury instruction since there was no benefit

in permitting the jury to convict him under a less onerous standard of

culpability. Further, he argues that he was prejudiced by this failure in that

the evidence showed that CO Bonenberger was injured only accidentally

during the skirmish. Appellant highlights that the jury acquitted him of both

counts of assault by a prisoner under 18 Pa.C.S. § 2703, including one count

for injuries caused to CO Bonenberger, which required the jury to find that




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J-S39023-17



“it was the intended conscious goal or purpose to cause serious bodily

injury.”1    Appellant’s brief at 13; see 18 Pa.C.S. § 2703(a).              Appellant

maintains that, since the jury acquitted him of an offense that required it to

find he intentionally injured CO Bonenberger, it must have likewise

determined that he did not act intentionally when it found him guilty of the

aggravated assault for the same injury. He concludes that, if the jury was

provided with an accurate jury instruction, then it would have similarly

acquitted him of aggravated assault.

       Our    High   Court    has    previously   clarified   the   proper   analytical

considerations when faced with a claim that counsel’s ineffectiveness

prejudiced a defendant.         In Commonwealth v. Spotz, 84 A.3d 294, 315

(Pa. 2014), the Supreme Court delineated an appellant’s burden to establish

prejudice. It observed,
____________________________________________


1
  Section 2703 enumerates the offense of assault by prisoner. It reads, in
relevant part:

    (a)     Offenses defined.--A person who is confined in or committed
            to any local or county detention facility, jail or prison or any
            State penal or correctional institution or other State penal or
            correctional facility located in this Commonwealth is guilty of
            a felony of the second degree if he, while so confined or
            committed or while undergoing transportation to or from such
            an institution or facility in or to which he was confined or
            committed intentionally or knowingly, commits an assault
            upon another with a deadly weapon or instrument, or by any
            means or force likely to produce serious bodily injury.

    18 Pa.C.S. § 2703(a).



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      A defendant raising a claim of ineffective assistance of counsel is
      required to show actual prejudice; that is, that counsel’s
      ineffectiveness was of such magnitude that it ‘could have
      reasonably had an adverse effect on the outcome of the
      proceedings.’ This standard is different from the harmless error
      analysis that is typically applied when determining whether the
      trial court erred in taking or failing to take a certain action. The
      harmless error standard . . . states that “whenever there is a
      ‘reasonable probability’ that an error ‘might have contributed to
      the conviction,’ the error is not harmless.” This standard, which
      places the burden on the Commonwealth to show that the error
      did not contribute to the verdict beyond a reasonable doubt, is a
      lesser standard than the [Strickland/Pierce] prejudice
      standard, which requires the defendant to show that counsel’s
      conduct had an actual adverse effect on the outcome of the
      proceedings.     This distinction appropriately arises from the
      difference between a direct attack on error occurring at trial and
      a collateral attack on the stewardship of counsel. In a collateral
      attack, we first presume that counsel is effective, and that not
      every error by counsel can or will result in a constitutional
      violation of a defendant’s Sixth Amendment right to counsel.

Id.   (citations   and   internal   brackets   omitted);   See    Strickland   v.

Washington, 466 U.S. 668 (1984), Commonwealth v. Pierce, 527 A.2d

973 (Pa. 1987). In order to determine whether a defendant was “actually

prejudiced,” the Supreme Court has weighed the gravity of the error

“against the overwhelming strength of the evidence[.]”           Spotz, supra at

317; Commonwealth v. Busanet, 54 A.3d 35, 43-44 (Pa. 2012)

(considering the “overwhelming evidence of guilt” in finding the defendant

was not prejudiced by the introduction of evidence of a prior bad act).

       In denying Appellant’s petition, the PCRA court found that Appellant

could not establish that he was prejudiced by trial counsel’s failure to object

to the erroneous jury instruction. In so finding, it observed that this Court

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J-S39023-17



previously ruled that the evidence was sufficient for the jury to determine

that Appellant “clearly . . . intended to cause bodily injury to the officers,

including Bonenberger, which his combative behavior.” Trial Court Opinion,

2/6/17, at 5; Domek, supra at *10. Essentially, the PCRA court, without

stating so, invoked the law of the case doctrine to support its decision. See

Commonwealth v. Gacobano, 65 A.3d 416, 419 (Pa.Super. 2013) (noting

“[t]he law of the case doctrine refers to a family of rules which embody the

concept that a court involved in the later phases of a litigated matter should

not reopen questions decided by another judge of that same court of by a

higher court in the earlier phases of the matter[.]”).

      We observe that this Court’s previous ruling, that the evidence

proffered by the Commonwealth was sufficient to support Appellant’s

conviction, does not constitute the law of the case for our present purposes.

On direct appeal, our standard of review required us to view the evidence in

the light most favorable to the Commonwealth as verdict winner. Domek,

supra at *6.      We are not guided by that principle herein, since our

assessment is centered upon considering the strength of the evidence

presented against the prejudice caused by counsel’s ineffectiveness. Spotz,

supra.     As we    are   reviewing the    instant   issue   under   a different

jurisprudential framework, we are not bound by our prior holding.

      Instantly, the inclusion of an erroneous mens rea reducing the level of

culpability required to find Appellant guilty of aggravated assault was a

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J-S39023-17



critical mistake that “could have reasonably had an adverse impact on the

outcome of the proceedings.”           Spotz, supra at 315.   The extent of this

mistake is highlighted when we consider that the jury’s verdict could very

well have been premised upon a finding that Appellant recklessly caused CO

Bonenberger’s injuries since the jury acquitted Appellant of an offense that

required it to find that he intentionally or knowingly harmed her.

       Moreover, upon review of the certified record, we cannot conclude that

the evidence tending to show that Appellant intentionally or knowingly

injured CO Bonenberger was so overwhelming as to overcome the prejudice

caused by the erroneous jury instruction.2         The testimony offered by the

Commonwealth does not clearly support the conclusion that Appellant acted

intentionally or knowingly. Rather, it tends to show that Appellant merely fell

backwards onto CO Bonenberger while he was being restrained by two other

officers.     See N.T. Trial, 7/15/13, at 107-114, 122.              Indeed, CO

Bonenberger herself testified as to the mechanism of her injury, stating,

“[a]ctually, we went all crashing down. I had three men fall on top of me.”

Id. at 122.


____________________________________________


2
 Despite efforts by this Court to obtain the video recording of the incident in
question, that exhibit was not made part of the certified record, and,
according to this Court’s prothonotary, was no longer available as a
supplement to the record under Pa.R.A.P. 1926.




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J-S39023-17



      Based on the record before us, we cannot conclude that the evidence

of Appellant’s guilt was so overwhelming that the outcome of the trial would

not have been different if trial counsel had objected to the erroneous jury

charge.   In light of the nature of legal error in question, and the verdict

rendered herein, we find that Appellant has established that trial counsel’s

ineffectiveness had an adverse impact on the outcome of his trial.

Accordingly, we reverse the order of the PCRA court. As the particulars of

this case raise a question of law, we do not need to remand this matter to

the PCRA court for an evidentiary hearing. See Commonwealth v. Kyle,

874 A.2d 12, 23 (Pa. 2005) (reversing Superior Court order to remand to

PCRA court for further evidentiary hearing since, regardless of facts found on

remand, issue raised a question of law). Rather, we remand for a new trial.

      Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2017




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