J-S34038-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KAHLIL HAMMOND                             :
                                               :
                       Appellant               :   No. 88 WDA 2019

        Appeal from the Judgment of Sentence Entered January 9, 2019
      In the Court of Common Pleas of Fayette County Criminal Division at
                        No(s): CP-26-CR-0002012-2018


BEFORE:      DUBOW, J., McLAUGHLIN, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                              FILED AUGUST 16, 2019

        Appellant, Kahlil Hammond, appeals from the judgment of sentence of

two to four years of confinement, which was imposed following his conviction

for aggravated harassment by prisoner and disorderly conduct.1 After careful

consideration, we affirm.

        The facts underlying this appeal are as follows:

         The Appellate is an inmate resident of the State Correctional
        Institution Fayette, hereinafter “SCI Fayette.” On the evening of
        May 16, 2018, Officer Justin Borquin and his fellow corrections
        officers were in the process of moving Appellant’s cell. During the
        initial cell move, Sergeant Tanner, Officer Miller, and Officer Luko
        were also present with Officer Borquin. Officer Borquin testified
        that while he was placing property into the cell, he became aware
        that Appellant was becoming noncompliant and was getting
        louder. Sergeant Tanner then directed Officer Borquin to move
        the property out of the cell and call for additional staff. Appellant


____________________________________________


1   18 Pa.C.S. §§ 2703.1 and 5503(a)(4), respectively.


*    Retired Senior Judge assigned to the Superior Court.
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       began to move onto the ground. At this time, Lieutenant Poska
       and Officer Harbaugh arrived at the scene with a camera.

       Next, the officers assisted Appellant to his feet. Because Appellant
       was still noncompliant, Lieutenant Poska ordered him to be put
       against the wall and for a restraint chair to be brought out for
       transport purposes only. As the officers began to place Appellant
       into the restraint chair, Appellant spit on Officer Luko. After
       Appellant chewed through several spit guards, he continued
       yelling obscenities and degrading comments towards the officers.

Trial Court opinion, filed February 7, 2019, at 2-3 (citations omitted).

Appellant was convicted by a jury, and on January 15, 2019, he filed this

timely direct appeal.2

       Appellant presents the following issues for our review:


       I.      Whether the evidence was legally and factually sufficient to
               prove that [Appellant] had the requisite intent to commit
               the crime of aggravated harassment by prisoner?

       II.     Whether the evidence was legally and factually sufficient to
               prove that [Appellant] had the requisite intent to commit
               the crime of disorderly conduct.

Appellant’s Brief at 4 (unnecessary capitalization and answers omitted). This

Court’s standard for reviewing sufficiency of the evidence claims is as follows:

            We must determine whether the evidence admitted at trial,
            and all reasonable inferences drawn therefrom, when viewed
            in the light most favorable to the Commonwealth as verdict
            winner, support the conviction beyond a reasonable doubt.
            Where there is sufficient evidence to enable the trier of fact
            to find every element of the crime has been established
            beyond a reasonable doubt, the sufficiency of evidence claim
            must fail.

____________________________________________


2Appellant was directed to file a concise statement of errors complained of
on appeal on January 15, 2019, and did so on January 28, 2019.

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        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. It is not within
        the province of this Court to re-weigh the evidence and
        substitute our judgment for that of the fact-finder. The
        Commonwealth’s burden may be met by wholly
        circumstantial evidence and 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.

Commonwealth v. Izurieta, 171 A.3d 803, 806 (Pa.Super. 2017) (quoting

Commonwealth v. Rodriquez, 141 A.3d 523 (Pa. Super. 2016) (internal

brackets omitted).

      A person is guilty of aggravated harassment by prisoner if he:

      is confined in or committed to a 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…

                                      [and]

      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 causes or
      attempts to cause another to come into contact with blood,
      seminal fluid, saliva, urine or feces by throwing, tossing, spitting
      or expelling such fluid or material.

18 Pa.C.S. § 2703.1.

      Appellant first contends that the Commonwealth failed to establish that

he intentionally caused saliva to come into contact with Officer Luko, and that

by his testimony at trial, Appellant established that he chewed through pieces

of the spit mask in order to be able to breathe, and only expelled them so as

not to choke on them.

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       Appellant further contends that the Commonwealth similarly failed to

demonstrate his intent to commit the offense of disorderly conduct. A person

is guilty of disorderly conduct if, with intent to cause public inconvenience,

annoyance or alarm, or recklessly creating a risk thereof, he “creates a

hazardous or physically offensive condition by any act which serves no

legitimate purpose of the actor.” 18 Pa.C.S. § 5503(a)(4). “Public” is further

defined as “affecting or likely to affect persons in a place to which the public

or a substantial group has access; among the places included are highways,

transport facilities, schools, prisons…or any premises which are open to the

public.” 18 Pa.C.S. § 5503(a)(4)(c) (emphasis supplied).

       In its opinion, the trial court noted that Appellant had waived his right

to challenge the sufficiency of the evidence based on his 1925(b) statement;3

the trial court nevertheless addressed the merits of his challenge and found

that the record fully supported the jury’s verdict. Trial Court Opinion at 4.

Initially, we disagree that Appellant failed to specify the unestablished element

or elements of the offenses of which he was convicted; however briefly stated,

Appellant did in fact allege in his “Concise Statement” that the Commonwealth



____________________________________________


3 This Court has consistently held that to preserve a claim that the evidence
was insufficient, the 1925(b) statement of errors complained of on appeal
must specify the element or elements upon which the evidence was
insufficient, and the Court may then analyze them; where a 1925(b)
statement does not specify the allegedly unproven elements, the sufficiency
issue is waived on appeal. Commonwealth v. Tyack, 128 A.3d 254, 260
(Pa. Super. 2015).

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failed to prove he possessed the requisite intent to commit the crimes of which

he was convicted. We therefore review his claims.

      After careful review, we find that the Commonwealth proved the

elements of both aggravated harassment by prisoner and disorderly conduct

beyond a reasonable doubt. Corrections Officer Borquin testified that in the

course of returning boxes of property that had been removed from Appellant’s

cell when he moved from one cell to another, he heard commotion from the

hallway where Appellant was being held temporarily, pursuant to protocol,

pending the transfer of property. N.T. at 25-26. Officer Borquin observed

Sergeant Tanner, who was with Appellant, call for additional help and further

observed Sergeant Tanner and Officer Miller, who were moving side to side

with Appellant, begin to place him on the ground. Id. at 25. Lieutenant Poska

was called to the scene, and he instructed another officer to bring the hand-

held camera, in accordance with protocol when any type of use of force occurs

on the unit. Id. at 39.    Lieutenant Poska testified that Appellant continued

to physically resist the officers and attempted to bite staff; he therefore called

for leg restraints and a spit mask to be put on Appellant. Id. at 37. The

officers assisted Appellant to his feet, where he continued to be noncompliant

and combative, and Lieutenant Poska ordered Appellant to be put against the

wall and for a restraint chair be brought out to transport Appellant to his cell.

Id. at 25, 37.   Appellant had bitten a hole through the spit mask, and Poska

called for another spit mask to be applied. Id. at 37.


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       Officer Borquin testified that he, Lieutenant Poska, Officer Luko and

one other officer worked to place Appellant in the restraint chair and that he

observed Appellant spit on Officer Luko. Id. at 25-26. Once secured in the

chair, Appellant was moved to the “L Unit intake hallway,” where he continued

to be noncompliant, verbally abusive and “bucking around up and down like

pulling his arms and twisting, shaking” and “yelling a bunch of degrading

comments at the officers”. Id. at 26-27. At trial, Lieutenant Poska testified

while the video taken with the hand-held camera was played, providing

context:

      At this point, they’re placing [Appellant] into the portable restraint
      chair for transport to the intake area.            Right now, he’s
      resisting…Officer      Luko      is    directly     in    front     of
      [Appellant]…[identifying the moment at which [Appellant] spit]
      that was whenever [Appellant] spit directly into the face of Officer
      Luko…[Luko] was attempting to connect the lap belt for transport
      in the portable restraint chair…as soon as he was spit on he moved
      over to the side…and you see the rest of staff react at that point
      in time.

Id. at 42-43. Lieutenant Poska further testified that “you can hear in the

background other inmates yelling and everything, that’s the commotion of the

incident. We remove him from that environment and take him out to the front

where the intake area is.” Id. at 47.

      Officer Luko, who was returning the property to Appellant’s cell, testified

that he could hear that a scuffle had ensued outside Appellant’s cell, and he

left the cell and went out into the hall to assist the other officers; he stated

that Appellant continued to struggle, “thrashing around,” and the officers had


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to take him to the ground. Id. at 61. Officer Luko testified that while the

officers were attempting to place Appellant in the restraint chair, he was

charged with helping to keep control of Appellant’s legs, and that he witnessed

Appellant chewing a hole through the spit mask, wetting it with his saliva. Id.

at 62-63. Officer Luko stated that Appellant was trying to bite at the elbow of

Officer Miller, who was standing to Appellant’s right, so he warned Miller and

Miller moved out of the way; Officer Luko heard Appellant spit and felt the spit

hit him at his temple, up the side of his head. Id. at 64.

      Appellant   testified,   asserting   that   the   corrections   officers   were

attempting to antagonize him from the time he was brought out of his cell,

and that he was slammed to the ground and punched in the face and in the

back of his head. Id. at 72. He contends that once pinned to the ground, he

was told to stop resisting, but could not have resisted because he was by that

time cuffed behind his back. Id. Appellant’s testimony regarding the period

of time when the corrections officers were placing him in the portable restraint

chair up until the moment he is seen spitting on Officer Luko is inconsistent

with the officers described on the video.         Although he did not attempt to

pinpoint a portion of the video to support his version of events, he testified

that a corrections officer was putting his hand in his mouth, thus preventing

him from breathing through the spit mask, and that officers were putting their

fingers in his eyes to inflict pain on him; he denied that he spit, asserting that

he was “basically trying to get [the corrections officer’s] hand out of [his]


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mouth.” Id. at 74. Appellant testified that nothing landed on Officer Luko,

and that he did not “actually think anything had come out his mouth.” Id. at

75.

      In concluding that the evidence supported the jury’s findings, the trial

court opined that the testimony of the corrections officers present at the scene

was confirmed by the video evidence proffered during the testimony. Trial

Court Opinion at 6.    Indeed, though the video consisted of approximately

thirty-five minutes of footage of the incident, at trial Appellant’s counsel only

agreed to the playing of approximately twelve minutes of the video, including

footage at minute three wherein Appellant is observed spitting at Officer Luko.

During deliberations, the jury requested and was re-shown, twice, the portion

of the video immediately before and after the spitting allegedly occurred, and

also requested and were re-shown the video at minute twelve, forty-five

seconds, where the third spit guard that had been applied came down from

Appellant’s face.   N.T. at 96.   Moreover, the officers’ testimony alone was

sufficient to support the finding that Appellant spit on Officer Luko.

      Before this Court Appellant also/alternatively asserts that he had to get

the pieces of the spit mask out of his mouth, and expelled them so that he

would not choke on them. Id. at 75; Appellant’s Brief at 8. Lieutenant Poska,

however, testified that the spit mask does not obstruct breathing, describing

it as “almost like a real thin cotton…the top of it [is] a mesh material to allow

breathability and the bottom of it is still relatively soft, it just prevents spit


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from coming through it, unless if there is a hole in it like there was in this

case.” N.T. at 44. We find that this testimony and the other evidence offered

by the Commonwealth witnesses that Appellant was chewing through the spit

mask, and that he spit toward Officer Luko’s face, as confirmed by the video

taken during the incident, is more than sufficient to establish that Appellant

intentionally caused Officer Luko to come into contact with his saliva, thus

satisfying the requisite element of intent.

       Likewise, with regard to Appellant’s conviction for disorderly conduct,

we find that his argument that he was incapable of creating a hazardous or

physically offensive condition because he “was in a restraint chair, handcuffed,

[wearing] a spit mask,” and “was ultimately restrained by six officers,” to be

completely without merit. Appellant’s Brief at 9. In an incident that continued

for approximately thirty-five minutes, six officers were required to bring

Appellant under control, and out of the hearing distance of the other prisoners.

Appellant attempted to bite one officer and did in fact spit at another. The

intent element of disorderly conduct “may be met by showing a reckless

disregard of the risk of public inconvenience, annoyance, or alarm, even if the

appellant’s intent was to send a message to a certain individual, rather than

cause public inconvenience, annoyance, or alarm.”           Commonwealth v.

Maerz, 879 A.2d 1267, 1269 (Pa. Super. 2005). After review of the facts

established at trial by the testimony of the corrections officers and the relevant

statutes, it is clear that the elements of aggravated harassment by prisoner


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and disorderly conduct were established beyond a reasonable doubt.

Accordingly, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

     Judge McLaughlin joins in the Memorandum

     Judge Dubow Concurs in the Result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/2019




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