J-S52002-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

TORY KELLY,

                         Appellant                  No. 1436 WDA 2013


            Appeal from the Judgment of Sentence April 2, 2013
            In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0001057-2012


BEFORE: SHOGAN, OLSON, and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED SEPTEMBER 25, 2015

      Appellant, Tory Kelly, appeals from the judgment of sentence entered

April 2, 2013, in the Court of Common Pleas of Allegheny County.           We

affirm.

      The convictions in this case result from incidents occurring at the State

Correctional Institution Pittsburgh (“SCIP”).   Agent Gary Hiler (“Hiler”), a

criminal investigator for the Pennsylvania Department of Corrections

(“DOC”), Office of Special Investigations and Intelligence (“OSII”), was

assigned to investigate allegations of abuse at SCIP based on a complaint

lodged by inmate Jerry Shoemaker. N.T., 12/17/12, Vol. II, at 18-20. The

abuse allegedly occurred on a housing unit designated “F-Block” at SCIP,

which is an intake assessment block for new inductees into the DOC from

western Pennsylvania. Id. at 22. The average stay in F-Block was about 10
J-S52002-15



days before an inmate was transferred to SCI-Camp Hill for further

assessment.      Id. at 23-24.      Hiler’s investigation focused primarily on the

2:00 pm to 10:00 pm shift of SCIP employees from December 1, 2010

through January 7, 2011. Id. at 28-29.

       Several hundred interviews were conducted of inmates at correctional

institutions across the state.        Id. at 31.      Hiler testified that the inmates

interviewed indicated that the abuse was primarily directed at inmates who

were convicted of sex offenses against minors. Id. Some inmates refused

to cooperate, or did not have any information. Id. at 32. The inmates were

not offered anything in exchange for their testimony. Id.

       Appellant was employed at SCIP during the period of time at issue and

was assigned as a utility officer1 during the shifts and dates in question. Id.

at 30. Although Appellant did not perform normal routine duties in F-Block,

he could have been assigned to a task requiring his presence in F-Block. Id.

at 55-57. Based on Hiler’s investigation, there were four alleged victims in

Appellant’s case:      Steven Friend, William Zuschlag, Arthur James Turner,

and Randy Jones.        Id. at 33-37.          The convictions at issue in the instant

appeal concern allegations of abuse by Appellant against inmate Randy




____________________________________________


1
  Hiler explained that six to eight “utility officers” were given miscellaneous
job assignments throughout the shift, responding to the various needs of the
shift as designated by supervisory staff.



                                           -2-
J-S52002-15



Jones (“Jones”).       Jones, among others, testified at trial to the multiple

instances of abuse suffered at the hands of Appellant.

        Following the nonjury trial, Appellant was convicted of intimidation of

witness/victim,2 terroristic threats,3 simple assault4 and official oppression.5

A sentencing hearing was conducted on April 2, 2013, and Appellant was

sentenced to an aggregated period of probation of twelve years, one year of

which was to be served in a county intermediate punishment program.

Appellant was also ordered to have no contact with the victim, undergo

random drug screening, have a mental health evaluation, and to enroll in

and complete anger management classes.

        On April 10, 2013, Appellant filed post-sentence motions arguing that

the evidence was insufficient to sustain the convictions and that the verdict

was against the weight of the evidence. He further moved for a new trial

based on after-discovered evidence in the form of surveillance tapes.        By

order entered September 5, 2013, the post-sentence motions were denied.

Appellant filed a timely notice of appeal on September 6, 2013. Appellant

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

____________________________________________


2
    18 Pa.C.S. § 4952(a)(1).
3
    18 Pa.C.S. § 2706(a)(1).
4
    18 Pa.C.S. § 2701(a)(3).
5
    18 Pa.C.S. § 5301(1).



                                           -3-
J-S52002-15



      Appellant presents the following issue for our review:

      I.     Did the trial court abuse its discretion in denying the
             Appellant’s postsentence motion that the verdict was
             against the weight of the evidence insofar as the testimony
             of the alleged victim, who was the only eyewitness, was
             unreliable because he had a motive to fabricate his
             accusations, he did not initially report the alleged
             incidents, no evidence was presented corroborating the
             alleged victim’s claims, however, evidence was presented
             indicating that it was not possible for the incidents to have
             occurred?

Appellant’s Brief at 7 (verbatim).

      Appellant argues that the case against him “is sheer speculation based

upon circumstantial evidence.” Appellant’s Brief at 30. Appellant maintains

that the convictions were contrary to the weight of the evidence and were

supported only by “uncorroborated testimony of a criminal who had a motive

to lie.”   Id.   Appellant further asserts that the evidence presented at trial

established that it was not possible for Appellant to have acted as described

by Jones.    Id.   Appellant contends that during the shift when the alleged

abuse took place, there were other corrections officers working in F-Block,

and “not one prison employee or inmate stated that they witnessed the

abuse, heard [Appellant] threaten Jones, or that they saw [Appellant] on F-

Block on the dates and times when the abuse and threats purportedly

occurred.” Id. at 31. Conversely, Appellant claims, the character witness

testimony presented by Appellant established that he had “an outstanding

reputation for the care, custody, and control of inmates and in adhering to


                                      -4-
J-S52002-15


and enforcing policies and rules.”    Id. at 34.    Appellant argues that the

evidence in this case was so weak that no reasonable or reliable inference of

fact can be drawn supporting the verdict, and it is therefore against the

weight of the evidence. Id. at 35. Appellant maintains that a new trial is

warranted. Id. at 36.

      The law pertaining to weight of the evidence claims is well-settled.

Our Supreme Court has stated:

            A motion for a new trial alleging that the verdict was
      against the weight of the evidence is addressed to the discretion
      of the trial court. An appellate court, therefore, reviews the
      exercise of discretion, not the underlying question whether the
      verdict is against the weight of the evidence. The factfinder is
      free to believe all, part, or none of the evidence and to
      determine the credibility of the witnesses. The trial court will
      award a new trial only when the jury’s verdict is so contrary to
      the evidence as to shock one’s sense of justice. In determining
      whether this standard has been met, appellate review is limited
      to whether the trial judge’s discretion was properly exercised,
      and relief will only be granted where the facts and inferences of
      record disclose a palpable abuse of discretion. Thus, the trial
      court’s denial of a motion for a new trial based on a weight of
      the evidence claim is the least assailable of its rulings.

Commonwealth v. Diggs, 949 A.2d 873, 879–880 (Pa. 2008) (internal

citations omitted).

      Intimidation of a witness or victims is defined as follows:

         (a) Offense defined.-- A person commits an offense if, with
         the intent to or with the knowledge that his conduct will
         obstruct, impede, impair, prevent or interfere with the
         administration of criminal justice, he intimidates or attempts
         to intimidate any witness or victim to:

            (1) Refrain from informing or reporting to any law
            enforcement officer, prosecuting official or judge

                                     -5-
J-S52002-15


              concerning any information, document or            thing
              relating to the commission of a crime.

18 Pa.C.S. § 4952 (a)(1).          Terroristic threats with the intent to terrorize

another is defined as follows:

       (a) Offense defined.-- A person commits the crime of
       terroristic threats if the person communicates, either directly or
       indirectly, a threat to:

              (1) commit any crime of violence with intent to
              terrorize another;

18 Pa.C.S. § 2706(a)(1).

       A person is guilty of simple assault if he attempts by physical menace

to put another in fear of imminent serious bodily injury.            18 Pa.C.S. §

2701(a)(3). Official oppression is defined as:

       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:

              (1) subjects another to arrest, detention, search,
              seizure, mistreatment, dispossession, assessment,
              lien or other infringement of personal or property
              rights;

18 Pa.C.S. § 5301(1).

       Jones testified in detail regarding Appellant’s criminal conduct.6 Jones

testified that after arriving at SCIP, he proceeded through the medical

____________________________________________


6
  In its opinion, the trial court indicates that the second volume of notes of
testimony from the nonjury trial, containing the testimony of Randy Jones,
was not filed and the trial court did not have access to it in preparing the
(Footnote Continued Next Page)


                                           -6-
J-S52002-15


evaluation and was taken to the intake pod, “F-Block.” N.T., 12/19/12, Vol.

II, at 236-237. After being brought to F-Block, the officers lined the inmates

up and Corrections Officers (“C.O.s”) Harry Nicoletti (“Nicoletti”) and Friess

delivered an orientation speech. Id. at 237. During that speech, the C.O.s

questioned the inmates about the nature of the charges against them. Id.

at 237-238. Jones testified that at that time, he did not reveal to the C.O.s

the basis of his conviction.           Id. at 238.   As he explained:   “I made

something up so that I would not have to be, you know, judged as a sex

offender right on the spot.” Id.

      Jones provided the following detailed testimony regarding the abuse

he began to experience on his third day at SCIP:

      [Commonwealth]: And what unusual happens on your third day
      at SCI Pittsburgh?

      [Jones]: I had an incident with a total of three different C.O.’s.

      [Commonwealth]: Well, let’s start from the beginning.

      [Jones]: Okay.

      [Commonwealth]: What was the first unusual thing or what was
      the first thing you remember that started the unusual things that
      happened?

      [Jones]: Well, I remember C.O. Nicoletti was coming around for
      count.
                       _______________________
(Footnote Continued)

Pa.R.A.P. 1925(a) opinion. We note that the certified record currently before
us contains volume II of the notes of testimony from the nonjury trial and
includes the testimony of Randy Jones. We have reviewed the testimony of
Randy Jones, and the court’s representation of Jones’ testimony is accurate.



                                            -7-
J-S52002-15



                                  ***

     [Jones]: I was – I was talking to my cellmate about a book he
     had, and I – I guess Mr. Nicoletti thought I was talking to him.
     So he stopped at my cell and he asked me my name. I told him,
     he wrote it down and then continued on with count.

           About five minutes later, five or ten minutes later, he
     called me down to the C.O. bubble on the intake pod and –

                                  ***

     [Jones]: I go to the doorway and Mr. Nicoletti asked me, you
     know, what my charges are. So I tell him, you know, yes, I’m a
     sex offender, and he immediately jumps out of his seat, comes
     over, and hits me in the face, like, right on my left side of my
     face.

                                  ***

     [Commonwealth]: Continue on. After Nicoletti strikes you, what
     occurs next?

     [Jones]: He tells me, you know, calls me a piece of shit, calls
     me all kinds of names, referring to sex offenders, and tells me,
     you know, that I don’t even deserve to live, let alone ever get
     out of prison.

                                  ***

     [Jones]: He tells me to go back to my cell. Once again, goes on
     name calling about, you know, sex offenders and –

                                  ***

     [Jones]: And then I comply with his order, and he told me, go
     back to my cell.

     [Commonwealth]: Okay. So you go back to your cell and what
     occurs?

     [Jones]: I talked to my cellmate about what happened. About
     20 minutes after that, the trays come, and they collect them,

                                  -8-
J-S52002-15


     and then [C.O.] Nicoletti and [C.O.] Friess come to my cell. And
     they come into my cell, tell my cellmate to step outside, and
     they come in, and I’m laying down on my bed. They tell me to
     stand up and, once again, they start with name calling. C.O.
     Nicoletti hit me again.

                                   ***

     [Jones]: He – he put a pair of handcuffs on, like, over his
     knuckles like they were brass knuckles, kind of. He, you know,
     he has Friess ask me about my charges, telling me to go into
     detail, going into more detail.

     [Commonwealth]: About the nature of your charges? About the
     facts behind your charges?

     [Jones]: Yes, sir.

     [Commonwealth]: Do you comply with that?

     [Jones]: Yes.

     [Commonwealth]: As you’re telling them the nature of your
     charges, what are they doing?

     [Jones]: C.O. Friess steps out of the door and tells the inmates,
     like, in the cells around me what my charges are.

     [Commonwealth]: He announces it to the other inmates, what
     your charges are?

     [Jones]: Yes, sir.

     [Commonwealth]: Continue on.

     [Jones]: They – they move me down a couple cells down to a
     single cell.

                                   ***

     [Jones]: [After leaving the cell], Nicoletti closes the door, locks
     it, and then spits on the floor and tells me I don’t have to worry
     about him anymore, but the other C.O.’s and the other inmates I
     still have to worry about.

                                    -9-
J-S52002-15



     [Commonwealth]:     How long is it, Mr. Jones, before the next
     thing happens?

     [Jones]: About 15 to 20 minutes, maybe.

                                   ***

     [Jones]: The next thing to happen, [Appellant] came by my cell
     and stopped in my cell and said, I heard we got one that likes to
     fight.

     [Commonwealth]: Is [Appellant] inside or outside of your cell at
     this point?

     [Jones]: He’s outside of my cell looking in the cell, like, the
     window of the door.

                                   ***

     [Jones]:   [Appellant said I hear] I have one that likes to fight.
     And I’m telling him, no, I don’t want to fight anybody, I just
     want to, you know, be by myself right now.

            And he asked me, you know, are you a sex offender? And
     I said, yeah, I – I did what my charges say I did.

           And – one sec, I’m trying to -- okay. And he – he – I
     can’t remember what exactly he does next. I know he comes
     back. He leaves and comes back with another inmate.

     [Commonwealth]: Can you describe this inmate?

     [Jones]: He’s about 5’10”, 5’11”, 200 pounds.

     [Commonwealth]: White guy? Black guy?

     [Jones]: White.

     [Commonwealth]:        The first encounter you have, the
     conversation you have with [Appellant], does he enter your cell
     or open your door at all at that point?

     [Jones]: No. He – he doesn’t do it until –

                                   - 10 -
J-S52002-15



     [Commonwealth]: I’m sorry. That’s fine. Just, so this second
     time, you see [Appellant]. What transpires this time?

     [Jones]: He – he brings the inmate by and says, you know, the
     inmate claims to be gay and he – the inmate insults me about
     my charges. He claims he’s going to rape me. Nicoletti – I’m
     sorry – [Appellant] says, you know, he does – he didn’t say
     anything about that. He just laughs about it the whole time
     while this inmate’s going on and on about it.

     [Commonwealth]: Is your door opened this time?

     [Jones]: No. Still closed.

     [Commonwealth]:      You’re still looking at them through the
     window, or they’re looking at you through a little window in your
     cell?

     [Jones]: Yes. And they – they come back again with another
     inmate.

     [Commonwealth]: Who comes back again?

     [Jones]: [Appellant] and the first inmate.

     [Commonwealth]: All right. And now they have a third inmate?

     [Jones]: Yes.

     [Commonwealth]: Can you describe this inmate to the Court?

     [Jones]: All I know, he was a black guy how – he said his name.
     His nickname was Dutch.        Claimed to be the first one’s
     boyfriend.

     [Commonwealth]: And do you have any conversation, or does
     this Dutch say anything to you?

     [Jones]: He says that I have to look out for him and his – his
     boyfriend in the shower in the morning. They were going to
     rape me and they were going to bring their shank with them.

     [Commonwealth]: Is your door opened on this third occasion?

                                  - 11 -
J-S52002-15



     [Jones]: No.

     [Commonwealth]:     What’s the          next thing you remember
     happens, Mr. Jones?

     [Jones]: [Appellant] comes back by himself and pops my door.

                                    ***

     [Jones]: [Appellant] comes in and puts a pair of black gloves on
     his hands and says, you know what these are for; right?

            I shook my head no. He says, so I don’t leave handprints
     or bruises. He said – he claimed he was 52 and 0 or something
     like that in fights on the F-Block.

           He said, it’s normally business but this time it’s going to be
     for fun. And he pushed me back towards the back of my cell and
     hit me in my stomach.

     [Commonwealth]:      Does he hit you with open hand or closed
     hand?

     [Jones]: A fist right in the center of my stomach.

     [Commonwealth]: How much force does he use to hit you in the
     stomach?

     [Jones]: Enough that it – it hurt. He’s berating me about my
     charges, going on and on about me being a sex offender, and he
     hits me again with a closed fist in the center of my chest, which
     took the wind out of me for a few seconds. I couldn’t breathe
     and I – I explained to him, you know, I’m asthmatic. Just, you
     know, if you hit me like that, that could end up killing me.

           And he said, okay, how about this? And punches me with
     a closed fist right in the center of my forehead with enough force
     to hurt me (indicating).

     [Commonwealth]: Are you standing or sitting when this occurs?

     [Jones]: I’m standing in the back of my cell.


                                    - 12 -
J-S52002-15


     [Commonwealth]: And is he blocking the only escape from the
     cell?

     [Jones]: Yes.

     [Commonwealth]:    After you’re struck the third time, what
     happens between you and [Appellant]?

     [Jones]: He – he’s still going on about my charges and he – he
     leaves the cell, closes the door, walks away, and about a couple
     minutes later, maybe two or three minutes later, comes back
     and says, listen, Jones, if you tell a white-shirt about this, I’ll
     make your life a nightmare you won’t be able to wake up from.

     [Commonwealth]: And in jail lingo, Mr. Jones, what is a white-
     shirt?

     [Jones]: Lieutenant or a captain.

     [Commonwealth]: Did you take that threat seriously?

     [Jones]: Yes, I did.

     [Commonwealth]: Does anything else occur that evening?

     [Jones]: No, not that evening.

     [Commonwealth]: The next day, do you put any request in?

     [Jones]: Yes. I – I asked to, in the morning, the – the morning
     time C.O., I asked, you know, put me in protective custody. He
     asked me why. I told him, you know, I’m getting threatened by
     everybody. I just, I don’t feel safe out here.

     [Commonwealth]:        Did you mention the incident with Mr.
     Nicoletti?

     [Jones]: No.

     [Commonwealth]: And why is that?

     [Jones]: Because I took what [Appellant] said serious.       I – I
     didn’t know what he would do to me if I told.


                                   - 13 -
J-S52002-15


     [Commonwealth]: Are you granted protective custody?

     [Jones]: Yes. They moved me over the Restricted Housing Unit.

     [Commonwealth]: And does the incident that you testified to
     with Mr. Nicoletti and [Appellant], if that would have been on the
     30th, would that now be December 31st that you’re taken into
     protective custody?

     [Jones]: Yes.

     [Commonwealth]:       Does anything occur while you are in
     protective custody?

     [Jones]: Yes. It was on January 1st.

     [Commonwealth]: The second day you’re in protective custody?

     [Jones]: Yes, sir.

     [Commonwealth]: New Year’s Day?

     [Jones]: Yes. [Appellant] came up to my cell in the RHU.

                                   ***

     [Jones]: [Appellant] asked me if I – I told anybody about what
     happened, and I told him no. And he – he listed other inmates
     in the RHU know that I’m a sex offender.

           And as he’s walking away, he calls me a little pedophile
     bitch, and he leaves the – leaves the housing unit. And it was
     two days after that, on the 3rd, he came back again.

                                   ***

     [Commonwealth]: So on the 3rd, you now request that you are
     able – or you requested you be allowed to take a shower?

     [Jones]: Yes.

     [Commonwealth]: And what transpired?




                                   - 14 -
J-S52002-15


     [Jones]: They told me I have to wait until two to ten [shift]
     comes in. That’s the second shift of the C.O.’s. So I say okay.

           And two to ten comes in. I asked for a shower again.
     They told me I have to wait. And then [Appellant] comes up to
     my cell holding a pair of handcuffs over his hands like brass
     knuckles and tells me – he asked me if I wanted to shower, and
     I say yeah. He says, well, you know, you know [sic] I’ll be the
     one cuffing you up? So I refused the shower.

     [Commonwealth]: Why did you refuse a shower?

     [Jones]: I thought I was going to be attacked again.

     [Commonwealth]: Is [Appellant] inside or outside of your cell at
     this point?

     [Jones]: Outside.

     [Commonwealth]: And while you’re in the RHU, does he ever
     come inside the cell?

     [Jones]: No.

     [Commonwealth]: So what’s [Appellant’s] response when you
     say, I’m not taking a shower now?

     [Jones]: He yells down that I refused my shower. And as he’s
     walking away, calls me a smelly little bitch and leaves the
     housing unit.

     [Commonwealth]: Is that your last encounter with [Appellant]?

     [Jones]: Yes.

N.T., 12/19/12, Vol. II, at 240-256.

     Thus, the testimony provided by Randy Jones supports Appellant’s

above-referenced convictions.     In addition to Randy Jones’ testimony,




                                   - 15 -
J-S52002-15


Corrections Officer Curtis Hoffman (“Hoffman”) provided corroborating

testimony.7 Hoffman supervised the first tier of F-Block at the time Randy

Jones was incarcerated.         N.T., Vol. II, 12/19/12, at 348-350.      Hoffman

worked the 2:00 pm to 10:00 pm shift in December of 2010. Id. at 349. It

was Hoffman’s testimony that C.O. Nicoletti took it upon himself to give an

orientation speech to new inmates.             Id. at 352.   Hoffman testified that

through these orientation speeches, C.O. Nicoletti would attempt to single

out sex offenders. Id. at 355. C.O. Nicoletti would announce the person’s

charges to the rest of the block.              Id. at 356.   Hoffman testified that

designating an inmate as a sex offender would put that inmate in danger.

Id. at 356.

       Hoffman further testified that Appellant would attend C.O. Nicoletti’s

orientation speeches at F-Block.         Id. at 354.   Appellant would often enter

the F-Block for the purpose of aggravating inmates and bragged about

abusing inmates.

       [Commonwealth]: Other than [Appellant] doing his job and
       transporting the new inmates to F-Block, did you ever see - -
       and I’ll try to keep it focused on or about December of 2010 - -
       [Appellant] on F-Block at other times?

       [Hoffman]: Yes.

____________________________________________


7
  The trial court indicates in its opinion that the transcript of Hoffman’s
testimony was also unavailable to it. Trial Court Opinion, 2/11/15, at 6 n.1.
As noted previously, volume II of the notes of testimony is currently part of
the certified record and available for our review.



                                          - 16 -
J-S52002-15


     [Commonwealth]: And can you tell His Honor what observations
     you made of [Appellant] being on F-Block at other times?

     [Hoffman]: He would come on the block first when Officer
     Nicoletti was there and approach different cells, especially cells -
     - those of child - - people accused of sex crimes.

                                    ***

     [Commonwealth]:         Would there be any legitimate reason for
     [Appellant], a yard worker, to go into a tier of a – sorry into a
     cell of a quarantined inmate?

     [Hoffman]: Aside from relief, no.

     [Commonwealth]:       And what do you mean by relief, Mr.
     Hoffman?

     [Hoffman]: If he was there to relieve that officer for any reason,
     if the officer had to go to training, you know, be seen by the
     captain, et cetera. For any other reason, no.

     [Commonwealth]: Did you ever see [Appellant] go into cells of
     inmates who were quarantined?

     [Hoffman]: Yes.

                                    ***

     [Commonwealth]: The answer to the question, did you see
     [Appellant] go into cells, was yes?

     [Hoffman]: Yes.

     [Commonwealth]: I know you probably wouldn’t have counted
     them, but was this a one-time thing or did it happen numerous
     times?

     [Hoffman]: Numerous.

     [Commonwealth]: Is there anyone that [Appellant], would sort
     of accompany while on F-Block when you saw him go into other
     cells?


                                    - 17 -
J-S52002-15


     [Hoffman]: Officer Nicoletti.

                                     ***

     [Commonwealth]: How many times - - have you ever asked
     [Appellant] to leave F-Block?

     [Hoffman]: Yes. I told him to stay off my tier.        He was
     upsetting the inmates and I had to deal with them.

     [Commonwealth]:     Approximately how many times did you do
     that?

     [Hoffman]: On two occasions.

     [Commonwealth]:       Have you ever been present when
     [Appellant] talked about how he treats or how he feels about
     inmates?

     [Hoffman]: Yes.

     [Commonwealth]:       Can you tell His Honor what sort of
     statements [Appellant] would make about inmates, and inmates
     of convicted sex crimes, specifically?

     [Hoffman]: One statement stood out in particular. Do you know
     why I wear these fucking blue contacts?        It’s because it
     intimidates these goddamn inmates.

            He would talk - - I deliberately would steer clear of
     [Appellant] in his conversations and try, but it was almost
     impossible. He bragged a lot about, you know, his escapades,
     especially, you know, what he said to inmates, you know, beat
     this, do this. And he always talked about physically, you know,
     fighting.

     [Commonwealth]: Would he brag about beating up inmates?

     [Hoffman]: Yep, yes.

     [Commonwealth]: Was he almost proud of the fact, boasting
     that he would beat pedophiles?

     [Hoffman]: Yes.

                                     - 18 -
J-S52002-15



     [Commonwealth]: How often would this occur?

     [Hoffman]: Almost every time I came into contact with him.

N.T., 12/19/12, Vol. II, at 356-362.

     Furthermore, the Commonwealth introduced testimony from other

inmates,   demonstrating   Appellant’s   pattern   of   abusive   behavior   and

corroborating the testimony of Randy Jones and C.O. Hoffman.            Inmate

James Turner (“Turner”) testified that after he arrived at SCIP, he was taken

to F-Block.   N.T., Vol. 1, 12/17/19, at 156.           C.O. Nicoletti gave an

orientation speech, and then questioned Turner regarding his charges. Id.

at 156-157. Turner acknowledged that he was convicted of a sex offense.

Id. at 157.   Officer Nicoletti and two other C.O.s verbally berated Turner

regarding those charges. Id. at 157-159. Turner testified to the following

interaction with Appellant that occurred after he was taken to his cell

following the orientation speech:

     [Commonwealth]: What did [Appellant] first do? Or what’s the
     first thing that happens, interaction between you and
     [Appellant]?

     [Turner]: The first interaction, he came into the cell, tried to
     turn on the – the light in my cell, and he noticed that it wasn’t
     turning on, and he asked me, why doesn’t my light work. And I
     said that -- that one of the other inmates tried to light a
     cigarette and blew the circuit breaker out.

     [Commonwealth]: Continue on, sir. What happens next?

     [Turner]: Then he - - I was standing up in front of the desk, and
     with a closed fist, [Appellant] also hit me in my chest and
     knocked me back into my bunk with my head off the wall.

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     [Commonwealth]: Did that cause you to have substantial pain?

     [Turner]: Some, yes.

     [Commonwealth]:        What     occurs    after   you’re   struck   by
     [Appellant]?

     [Turner]: After he had done that, he had grabbed me by my
     shirt collar and got up in my face and started verbally - -
     basically, verbally abusing me.

     [Commonwealth]:     Do you recall what the nature of the abuse
     was?

     [Turner]: Basically saying that I’m a piece of shit and I don’t
     deserve to live and stuff like that.

     [Commonwealth]: Was there any discussion as to what would
     happen if you told someone about what was transpiring?

     [Turner]: Yes. He did say that if I said anything to anybody,
     that he would be back to basically splatter my blood all over the
     cell.

     [Commonwealth]: Are those his words or are those your words?

     [Turner]: Those are his.

                                     ***

     [Commonwealth]: Did you have any further interactions with
     [Appellant] while you were at SCI Pittsburgh?

     [Turner]: Yes. One other time after I got moved upstairs.

     [Commonwealth]: You were moved – - what tier were you on
     when this first incident happened?

     [Turner]: It was the – the lower level.

     [Commonwealth]: And where were you moved to? What tier?

     [Turner]: It would be Tier 2.

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      [Commonwealth]: And can you tell His Honor what occurred
      between you and [Appellant] when you were on Tier 2?

      [Turner]: [Appellant] had come back, he was walking around
      and had said that - - asked me what am I doing up here on this,
      on this tier, and I told him that this is where they had stuck me.

      [Commonwealth]: Is that the only conversation or was there
      more conversation?

      [Turner]: Well, a short time later, he had come back to my cell.
      I’m presuming [he] was by himself because he said that he
      didn’t have any lookouts or anything. He came into my cell
      while I was lying on my bunk in the cell by myself. He had
      walked up to my bunk, and the first thing he did was punch me
      in the side of my face, in my temple.

      [Commonwealth]: Do you know if it was with a closed hand or
      an open hand?

      [Turner]: Felt like a closed hand.

      [Commonwealth]: Did he make any statements to you before or
      after he struck you?

      [Turner]: After he had struck me, he had asked me if I wanted
      to hit him back, and at that time I had told him no.

N.T., 12/17/12, Vol. I, at 160-163.

      William Zuschlag was also an inmate at SCIP Pittsburgh.              N.T.,

12/19/12, Vol. II, at 301. Zuschlag maintained that on his second day at

SCIP, while he was housed on the bottom floor of F-Block, he was assaulted

by Appellant.   Id. at 301-302.   Zuschlag provided the following testimony

regarding his interactions with Appellant:

      [Commonwealth]: So let’s go with the second day. What do you
      first remember that was unusual about the second day?


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J-S52002-15


     [Zuschlag]: [Appellant] come [sic] up to my cell. He started
     asking me a bunch of questions like, you know, what I was in jail
     for, et cetera, et cetera, et cetera. And that’s when the assaults
     started.

     [Commonwealth]: Did you answer [Appellant] when he asked
     you what your charges were for?

     [Zuschlag]: Yes.

     [Commonwealth]: Was - - how did [Appellant] gain entry to
     your cell, if you know?

     [Zuschlag]: He had a key and unlocked the cell door.

     [Commonwealth]: Can you tell His Honor what transpired when
     [Appellant] entered your cell?

     [Zuschlag]: When he entered my cell, he come [sic] up to me.
     He said, I hear you like to touch little kids. And I explained to
     him that that’s not the truth. I told him that I had a victim of 16
     years of age, and he continued to question me about these
     things.

           And he also stated to me that I was lucky that it was a girl
     of that age or I would have been hurt worse, like my buddy, the
     pedophile next door to me.

     [Commonwealth]:      Was he referring to James Turner at that
     point?

     [Zuschlag]: Yes, he was.

     [Commonwealth]: Okay. You say, then, an assault occurred?

     [Zuschlag]: Yes.

     [Commonwealth]: Can you tell His Honor how that occurred?

     [Zuschlag]: He come into the cell, like I said, started talking to
     me, asking me questions. Then he picked me up like this
     (indicating) by my shirt.




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J-S52002-15


     [Commonwealth]: And you’re indicating both hands around your
     collar?

     [Zuschlag]: Yes. And he started pushing me up against the
     wall. Well, actually, I was sitting on the - - the bed, and he
     slammed me up against the wall, and the back of my back hit
     the wall. My head hit the wall.

            Then he - - he picked me up, put me up on my feet,
     turned me around, and slammed me up against the wall in the
     cell. Held me there for a couple of seconds, yelling at me
     different, you know, nasty things, like I’m a piece of shit and,
     you know, piece of garbage, you need to die, blah, blah, blah.
     Stuff like this.

          And he - - after he was done with that, he threw me down
     on the floor in the cell and he kicked me. Then he picked me
     back up once again by my shirt collar and placed me on the bed
     and he says, I’ll be back to see you again, and he left the cell.

     [Commonwealth]:      Could you tell where he went after he left
     your cell?

     [Zuschlag]:   Yes.   He went to James Turner’s cell is next to
     mine.

     [Commonwealth]: I take it you can’t see what is occurring in
     the cell next to you?

     [Zuschlag]: I could see a little bit, but I was really too afraid to
     go to the door because, you know, I knew to see the C.O.’s gone
     in there and what they were doing with him, and I was too
     terrified to go near the door.

     [Commonwealth]: Did you hear anything from next door?

     [Zuschlag]: Yeah. I heard, you know, thumps. Like, you know,
     a body hitting the wall or something like that, and I heard James
     say, please don’t hurt me.

     [Commonwealth]: Did Appellant say anything to you before he
     left your cell?

     [Zuschlag]: On which occasion?

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     [Commonwealth]: This first occasion. Let’s just stick with this
     first occasion.

     [Zuschlag]: First occasion, yeah. He just said he’d be back.
     That’s all he told me. And he said to me also, if I said anything
     about this to anyone or brought it to anyone’s attention, he
     would splatter my blood all over the cell.

     [Commonwealth]: Did you take that comment seriously?

     [Zuschlag]: Yes, I did.

N.T., 12/19/12, Vol. II, at 303-306.   Zuschlag also testified to a second,

similar assault by Appellant that occurred the next day.   Id. at 307.   The

abuse continued for the entire week he was on the first floor. Id. Zuschlag

also testified to continuing abuse by Appellant, during the 2:00 pm to 10:00

pm shift, even after Zuschlag was transferred to the second tier. Id. at 309.

During the instances of physical abuse, Appellant would wear black gloves.

Id. at 310.

     The trial court provided the following analysis regarding Appellant’s

claim:

     In reviewing the testimony in this matter this Court found Jones
     to be a credible witness and that Hoffman provided testimony
     that supported Jones’ claim that he had been assaulted even
     though Hoffman did not see any of the physical assaults.
     Hoffman’s testimony that [Appellant] was frequently on F Block
     when he had no business being there was circumstantial
     evidence of the fact that [Appellant] had committed these
     crimes.

                                       ***

     In addition to the testimony of Jones and Hoffman, this Court
     had [Appellant’s] work schedule, a calendar depicting when the

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J-S52002-15


      various inmates [Appellant] was accused of abusing were at SCI
      Pittsburgh, information as to [Appellant’s] job as a utility officer,
      the fact that none of his responsibilities as a utility officer
      required him to be on F Block, and the fact that [Appellant]
      reported to work early to use the gym facilities and would be in
      his street clothes as opposed to his corrections officer uniform.
      This Court weighed all of those factors in making an assessment
      of credibility and found both Jones and Hoffman to be credible,
      which substantiated the charges that were filed against him.

Trial Court Opinion, 2/11/15, at 6-7.

      The trial court’s discussion is supported by evidence of record.          As

referenced, Appellant contends that Jones was an incredible witness.            We

first note that this Court has stated that a new trial is not warranted based

on a mere assertion of “a reassessment of the credibility of witnesses.”

Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015). The

trial court, as finder of fact, credited Jones’ testimony. Thus, we agree with

the trial court’s conclusion that Appellant’s claim that the verdicts in this

case were against the weight of the evidence lacks merit.

      Additionally, Appellant’s claim that no testimony corroborating Jones’

claims was introduced at trial is belied by the record.      As outlined above,

there was significant evidence of record introduced at trial that corroborated

Jones’ claims and established Appellant’s abusive behavior pattern.           Thus,

we do not find the verdicts so contrary to the evidence as to shock one’s

sense of justice and discern no abuse of discretion by the trial court.

      Judgment of sentence affirmed.




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J-S52002-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/25/2015




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