J-S45037-23
2023 PA Super 273
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID ANTHONY ROSARIO :
:
Appellant : No. 372 MDA 2023
Appeal from the Judgment of Sentence Entered February 7, 2023
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0002944-2021
BEFORE: BOWES, J., LAZARUS, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED: DECEMBER 27, 2023
Appellant David Anthony Rosario appeals from the judgment of sentence
entered in the Court of Common Pleas of Cumberland County following his
conviction by a jury on the charges of aggravated assault (serious bodily injury
to an enumerated person), aggravated assault (bodily injury to an
enumerated person), and assault by prisoner.1 After a careful review, we
affirm.
The relevant facts and procedural history are as follows: On January 5,
2022, the Commonwealth filed an Information charging Appellant, an inmate
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 2702(a)(2), 2702(a)(3), and 2703(a)(1)(ii), respectively.
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at SCI-Camp Hill, with the crimes indicated supra.2 On August 29, 2022,
Appellant, who was represented by counsel, proceeded to a jury trial at which
the Commonwealth presented the testimony of C.O. Brandon Alexander,
Lieutenant Jossuan Rivera, and Corporal Hilary Faust. Appellant testified on
his own behalf.
C.O Alexander testified he has been a corrections officer at SCI-Camp
Hill for six years. N.T., 8/30/22, at 21. As part of his normal job duties, he
conducts security rounds to ensure the inmates are safe in their cells, as well
as monitors the flow of inmates to ensure there is order within the prison. Id.
C.O. Alexander indicated that, on July 9, 2021, he was working from
2:00 p.m. to 10:00 p.m., and he was assigned to the E Block, which has
approximately sixty cells arranged in four pods. Id. at 22. The pods are
triangular shaped with two tiers of cells. Id. Each cell houses one inmate,
and the cells’ doors, which operate mechanically, are usually closed and
locked. Id. at 23.
C.O. Alexander explained that a cell’s door opens and closes when its
corresponding button is pressed in the control bubble unit, which is accessible
only by corrections officers and employees. Id. Pursuant to prison protocol,
when a cell door is opened, two corrections officers stand by the cell’s door
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2 The Commonwealth also charged Appellant with simple assault, 18 Pa.C.S.A.
§ 2701(a)(1), and recklessly endangering another person, 18 Pa.C.S.A. §
2705. However, the Commonwealth withdrew these two charges prior to trial.
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while another corrections officer presses the button in the control bubble. Id.
C.O. Alexander noted that, on the E block, inmates are not permitted to roam
or be in common areas. Id. at 24. C.O. Alexander testified Appellant was
housed in the B pod of E Block, and prior to July 9, 2021, C.O. Alexander had
no “dealings with him.” Id. at 25.
On July 9, 2021, while C.O. Alexander checked the cells and conducted
a security round, he “got to right around [Appellant’s] cell door, [Appellant]
was able to get [the door] open, and [Appellant] rushed [C.O. Alexander] and
assaulted [him].” Id. C.O. Alexander explained that he was approximately
two cells away from Appellant’s cell when Appellant’s cell door unexpectedly
opened. Id. at 26. Appellant “sprinted right at [C.O. Alexander]” and
immediately punched him “square in the face” with a “closed fist.” Id. at 27.
Appellant punched C.O. Alexander approximately thirty more times with a
closed fist with each punch landing on C.O. Alexander’s head or face. Id.
During the assault, C.O. Alexander “started stumbling” and “ended up
against the wall and eventually [he fell] to the floor.” Id. at 28. While he was
on the floor, he tried to cover his head with his arms while Appellant continued
to punch him in the head and face. Id. C.O. Alexander feared that Appellant
was trying to “either knock [him] out or kill [him].” Id. at 31. Eventually,
other corrections officers, who had heard the assault, arrived on the scene,
and they “forcibly removed” Appellant, who was still punching C.O. Alexander,
by placing him in a bear hug. Id. at 29.
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C.O. Alexander testified that, after the other corrections officers pulled
Appellant off him, he was able to stand and walk to the lieutenant’s office
where a prison nurse examined him and sent him to a local hospital. Id. at
31-32. C.O. Alexander received a CAT scan, which was negative for brain
injuries; however, C.O. Alexander was diagnosed with extensive contusions
and swelling to his face, as well as cuts to his head. Id. at 32-34. He also
had some bruising to his arm where Appellant had punched him while he was
covering his head, as well as soreness to his knees from when he fell to the
floor. Id. at 38, 42. It took approximately two weeks for the swelling and
bruising to resolve, and C.O. Alexander noted his injuries were painful. Id. at
35-39. He was off work and on medical leave for approximately six months.
Id. at 40.
C.O. Alexander explained that, when Appellant began punching him, no
other corrections officers were in the vicinity because all of the cell doors on
the E block, including Appellant’s cell door, were supposed to be closed and
locked. Id. at 28. C.O. Alexander testified that, prior to the July 9, 2021,
incident, he neither observed nor heard of a prison door at SCI-Camp Hill
opening unexpectedly without a corrections officer or employee pressing the
appropriate button to open it. Id.
On cross-examination, C.O. Alexander noted another corrections officer
was in the control bubble watching the E Floor while he conducted the security
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check. Id. at 44-45. He admitted that inmates are generally aware that there
are security cameras in the prison. Id.
On redirect examination, C.O. Alexander reiterated that, during the
assault, he believed Appellant was trying to knock him out or kill him. Id. at
45. He noted Appellant punched him “hard” with his “full strength,” and
Appellant did not stop punching him until “someone pulled him off of [him].”
Id. at 45-46. He testified that, even as the other corrections officers pulled
Appellant off him, Appellant “was still trying to hit [him].” Id. at 46. C.O.
Alexander testified he was surprised when Appellant exited his cell and
immediately began punching him, and Appellant was hitting him “hard enough
that [he] couldn’t process [his] thoughts together or retain [his] thoughts”
during the attack. Id. at 45.
Lieutenant Rivera testified that, on July 9, 2021, he was the lieutenant
in charge of the E Block, and he worked from 2:00 p.m. to 10:00 p.m. Id. at
48-49. He confirmed the cells in the E Block are generally locked, and to
unlock a cell’s door, a control officer must “hit an override and then hit the
cell button door.” Id. at 50. He further confirmed that, pursuant to prison
protocol, before a cell door is opened, two corrections officers must be
positioned outside the cell door, and the inmate’s hands must be handcuffed.
Id. He noted that, during the eight years he has worked at SCI-Camp Hill,
except for the instant incident, he has never heard of an instance where an
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inmate had “gotten the door open when it was not supposed to be open[.]”
Id.
Lieutenant Rivera testified that, on July 9, 2021, while he was talking to
his sergeant on the A pod of E Block, he heard “a loud noise.” Id. He looked
over to the B pod of E Block, saw “Appellant was out of his cell, and [he]
noticed that [C.O.] Alexander was on the floor.” Id. at 51. “[Appellant] was
on top of him swinging at him with closed fists about his head and body area.”
Id. C.O. Alexander was “on his knees trying to like tuck his head while he
was on the floor[.]” Id. Meanwhile, Appellant was “on top of [C.O.
Alexander’s] back, just swinging down on him, trying to hit him with closed
fists on his head and body area.” Id. The lieutenant clarified Appellant was
“punching” C.O. Alexander “in the head area.” Id. at 52. He noted Appellant
was not supposed to be out of his cell. Id.
Lieutenant Rivera testified his sergeant ran over to assist C.O. Alexander
while the lieutenant alerted the rest of the corrections officers on the E Block
to assist with the assault. Id. As other corrections officers responded,
Lieutenant Rivera called the institutional control and medical to advise that
medical assistance would be needed. Id. He then ran to assist C.O.
Alexander. Id. He indicated that, in total, it took five or six correctional
officers to restrain Appellant. Id. He indicated that C.O. Alexander’s face was
“very bruised,” his eyes were “swollen shut,” and “he was really disoriented.”
Id. at 53. He confirmed C.O. Alexander was initially examined by prison
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medical personnel; however, he was then transported to an area hospital for
further treatment and evaluation. Id. He also confirmed C.O. Alexander was
off from work for six months for a work-related injury from the instant assault.
Id. at 57.
Pennsylvania State Police Corporal Faust testified that, on July 9, 2021,
she was in the Criminal Investigation Unit at PSP Carlisle, and she was
assigned to investigate the instant assault. Id. at 62. Accordingly, she
traveled to the hospital, and she interviewed C.O. Alexander, who explained
the specifics of the assault to her.3 Id. She then traveled to SCI-Camp Hill
to interview Appellant, who waived his Miranda4 rights and agreed to speak
to Corporal Faust. Id. at 63.
Corporal Faust testified she asked Appellant how he was able to get his
cell door open, and he indicated he had kicked it. Id. Appellant told her he
“kicks at his door.” Id. at 66. Appellant denied having any personal issues
with C.O. Alexander, and he informed Corporal Faust that he didn’t “know him
at all.” Id. at 64. Appellant then indicated he wanted to end the interview.
Id.
Appellant testified he was an inmate at SCI-Camp Hill on July 9, 2021,
when his cell’s door suddenly slid open. Id. at 77. Appellant saw this as his
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3 She noted C.O. Alexander’s description of the assault, which he provided in
the hospital, was consistent with his trial testimony. Id.
4 Miranda v. Arizona, 384 U.S. 436 (1966).
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“way out,” so he ran out of his cell and “attacked” the corrections officer. Id.
He testified he used “only [his] two hands,” and he had no “ill will” toward the
corrections officer. Id. at 78. He indicated he “didn’t have [any] malicious
intent toward this man himself, but the rage and anger [he] harbored was
toward the entity he worked for.” Id.
Appellant testified the reason he attacked C.O. Alexander was so that
he would be transferred from SCI-Camp Hill to a different state correctional
institution. Id. He testified he wanted to “start fresh somewhere” and leave
behind the trauma he has experienced at SCI-Camp Hill. Id. He indicated
C.O. Alexander was “at the wrong place at the wrong time,” and he had no
intent to hurt him. Id. at 79-80. He indicated he did not want to kill him.
Id. at 81.
Appellant admitted he did not stop hitting C.O. Alexander when the
“female sergeant” tried to stop him; however, he testified he kept hitting C.O.
Alexander, as opposed to the “female sergeant,” because he knew he could
have completely “overpowered her.” Id. at 80. He indicated he knew he was
being monitored 24/7 on the E Block, and he believed he would have about
“an 8 second window” to attack the corrections officer. Id. at 81.
On cross-examination, Appellant indicated he believes his cell door
opened because either a prison employee inadvertently pushed his cell’s door
button or a storm caused the electronics to malfunction. Id. at 82. He
admitted he did not exit his cell immediately when the door unexpectedly slid
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open; but rather, he waited until the corrections officer on duty, C.O.
Alexander, walked closer to his cell. Id. at 83. He indicated he assumed he
would be stopped sooner by prison officials, but he admitted he could have
stopped the assault sooner on his own. Id. He admitted he had “no regard
for C.O. Alexander.” Id. at 85.
At the conclusion of the trial, the jury convicted Appellant of the crimes
set forth supra, and on September 8, 2022, the trial court sentenced Appellant
to an aggregate of ten years to twenty years in prison. Appellant and the
Commonwealth filed timely post-sentence motions, and on November 8,
2022, the trial court held a hearing at which “the parties agreed that Appellant
had to be resentenced given an error in the sentencing guidelines previously
agreed [to] at the original sentencing [hearing].” 5 Trial Court Opinion, filed
5/8/23, at 1 n.3. Since additional disputed issues remained outstanding, the
trial court held an additional sentencing hearing on February 7, 2023, at which
time the trial court sentenced Appellant to an aggregate of ten years to twenty
years in prison, to be served consecutively to any other sentence Appellant
was currently serving.
Appellant filed a timely, counseled notice of appeal on February 7, 2023,
and all Pa.R.A.P. 1925 requirements have been met. On appeal, Appellant sets
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5 The trial court noted the parties filed motions to extend the 120-day period
for the trial court to decide the post-sentence motions, and on January 10,
2023, the trial court extended the post-sentence motions period by thirty days
as permitted by Pennsylvania Rule of Criminal Procedure 720(B)(3)(a)-(b).
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forth the following sole issue in his “Statement of the Questions Involved”
(verbatim):
1. Whether the Commonwealth presented insufficient evidence to
sustain Defendant’s conviction of aggravated assault, 18
Pa.C.S.A. § 2702(a)(2), as the evidence neither established
that the victim suffered serious bodily injury nor that
Defendant intended to cause serious bodily injury.
Appellant’s Brief at 3 (suggested answer omitted).
Appellant contends the evidence is insufficient to sustain his conviction
for aggravated assault under 18 Pa.C.S.A. § 2702(a)(2).6 Specifically,
Appellant avers the Commonwealth failed to prove, beyond a reasonable
doubt, that he caused or attempted to cause serious bodily injury to C.O.
Alexander. Rather, Appellant contends C.O. Alexander suffered solely bodily
injury, which was the intent of Appellant when he attacked the corrections
officer. Appellant contends his case is indistinguishable from Commonwealth
v. Alexander, 477 Pa. 190,
383 A.2d 887 (1978), wherein our Supreme Court
held the evidence was insufficient to sustain a defendant’s conviction under
Subsection 2702(a)(2).
Our scope and standard of review when considering challenges to the
sufficiency of the evidence are as follows:
Because a determination of evidentiary sufficiency presents a
question of law, our standard of review is de novo and our scope
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6 Appellant presents no argument or issue related to his conviction for
aggravated assault under 18 Pa.C.S.A. § 2702(a)(3) or assault by prisoner
under 18 Pa.C.S.A. §2703(a)(1)(ii). Accordingly, we do not address
Appellant’s convictions for these crimes.
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of review is plenary. In reviewing the sufficiency of the evidence,
we must determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient
to prove every element of the offense beyond a reasonable doubt.
[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. It is within the
province of the fact-finder to determine the weight to be accorded
to each witness’s testimony and to believe all, part, or none of the
evidence. The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial
evidence. Moreover, as an appellate court, we may not re-weigh
the evidence and substitute our judgment for that of the fact-finder.
Commonwealth v. Williams, 176 A.3d 298, 305–06 (Pa.Super. 2017)
(citations and quotation marks omitted).
Under 18 Pa.C.S.A. § 2702(a)(2), a person is guilty of aggravated
assault if he “attempts to cause or intentionally, knowingly or recklessly
causes serious bodily injury to any of the officers, agents, employees or other
persons enumerated in subsection (c) or to an employee of an agency,
company or other entity engaged in public transportation, while in the
performance of duty.”7 18 Pa.C.S.A. § 2702(a)(2). “Serious bodily injury” is
“[b]odily injury which creates a substantial risk of death or which causes
serious permanent disfigurement, or protracted loss or impairment of the
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7 In the case sub judice, Appellant does not dispute that C.O. Alexander is a
person enumerated in subsection (c) or that Appellant attacked him while he
was in the performance of his duty. See 18 Pa.C.S.A. § 2702(c)(9) (“The
officers, agents, employees and other persons referred to in subsection (a)
shall be as follows…(9) Officer or employee of a correctional institution[.]”).
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function of any bodily member or organ.” 18 Pa.C.S.A. § 2301. To sustain a
conviction for aggravated assault, the Commonwealth need not show that
serious bodily injury actually occurred, but only that the defendant attempted
to cause serious bodily injury to another person. Commonwealth v.
Galindes, 786 A.2d 1004, 1012 (Pa Super. 2001). An “attempt” exists when
“the accused intentionally acts in a manner which constitutes a substantial or
significant step toward perpetuating serious bodily injury upon another.”
Id.
(citation and quotation omitted).
In concluding Appellant is not entitled to relief on his sufficiency claim,
the trial court relevantly indicated the following:
In response to a special interrogatory question on the
verdict slip, the jury indicated therein that it found the
Commonwealth proved beyond a reasonable doubt that Appellant
attempted to cause serious bodily injury, and not that Appellant
did intentionally, knowingly, or recklessly cause such injury.
While Appellant claims that the Commonwealth failed to prove the
victim suffered a serious bodily injury or that Appellant intended
to cause such injury, the Commonwealth was required to prove
only one of the two theories [beyond a reasonable doubt]. See
Commonwealth v. Lewis, 911 A.2d 558, 564 (Pa.Super.
2006)[.] [The trial court], therefore, limits [its] analysis to
whether the Commonwealth produced sufficient evidence to prove
Appellant…attempted to cause serious bodily injury.
…
[The trial court is] satisfied that the Commonwealth
produced sufficient evidence to prove, and the jury could
reasonably conclude, that Appellant intended to cause serious
bodily injury to [C.O.] Alexander. Appellant launched a surprise
attack on [C.O.] Alexander by bolting out of his cell at [C.O.
Alexander] and immediately launching…30 punches to [C.O.]
Alexander’s face, head, and body, continuing as [C.O.] Alexander
fell to the ground and knelt helplessly, attempting to cover his
head. Appellant put his body weight on [C.O.] Alexander’s back,
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keeping [C.O.] Alexander down while [Appellant] continued
punching him and did not stop until he was forcibly removed by
another corrections officer. Finally, Appellant testified that he felt
anger and rage toward the prison, and that the attack went much
further than it needed to go, which, viewed in the light most
favorable to the Commonwealth, also supports a finding that he
intended to inflict serious bodily injury upon [C.O.] Alexander. See
Commonwealth v. Dailey, 828 A.2d 356, 360-61 (Pa.Super.
2003) (finding that the inmate intended to cause serious bodily
injury to the corrections officer where he “delivered at least two
closed-fist blows and was forcibly restrained while positioned to
continue the attack”)[.]
Trial Court Opinion, filed 5/8/23, at 6-8 (emphasis in original) (footnotes and
citations omitted).
We agree with the trial court’s sound reasoning. Specifically, assuming,
arguendo, the evidence fails to establish C.O. Alexander suffered serious
bodily injury from the assault, we conclude the evidence sufficiently
establishes Appellant acted with the requisite intent to cause serious bodily
injury to C.O. Alexander. During his surprise attack, Appellant punched C.O.
Alexander approximately thirty times with closed fists about the head and
face. C.O. Alexander testified the punches were “hard” and with Appellant’s
“full strength.” N.T., 8/30/22, at 46. He noted he became disoriented during
the attack and could not “process [his] thoughts[.]” Id. at 45. After C.O.
Alexander fell to the ground and assumed a defensive posture, Appellant
placed his weight on C.O. Alexander and continued to punch him until other
corrections officers forcibly removed him.
We agree with the trial court that the instant case is akin to Dailey,
supra, where we found the evidence sufficiently demonstrated the inmate
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intended to inflict serious bodily injury on a corrections officer so as to support
a conviction for aggravated assault under Subsection 2702(a)(2). In Dailey,
the inmate delivered two closed-fisted punches to the corrections officer’s face
and had to be forcibly restrained by other corrections officers while standing
in a position indicating he intended to continue the attack.
Moreover, we reject Appellant’s claim that the instant case is
indistinguishable from Alexander, supra, wherein our Supreme Court
concluded the evidence that the appellant struck the victim with a single punch
to the head, which resulted in a broken nose, was insufficient to sustain the
appellant’s conviction for aggravated assault.
Alexander, supra,383 A.2d
at 889. The Court limited its holding to the facts of that case noting:
In the instant case, the only direct evidence of [the] appellant’s
intent is his testimony to the effect that he did not intend to
seriously injure the victim. Thus, any evidence of his intent must
be gleaned from the other circumstances surrounding the
appellant’s attack on the victim. In this case there simply are no
such circumstances….There is no evidence that [the] appellant
was disproportionately larger or stronger than the victim; [the]
appellant was not restrained from escalating his attack upon the
victim; [the] appellant had no weapon or other implement to aid
his attack; [the] appellant made no statements before, during or
after the attack which might indicate his intent to inflict further
injury upon the victim. [The] appellant delivered one punch and
walked away.
Id.
In contrast to Alexander, in the case sub judice, Appellant delivered
approximately thirty hard closed-fisted blows to the corrections officer, he
continued the attack after the corrections officer had fallen to his knees and
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assumed a defensive position, and he had to be forcibly removed away from
the fallen corrections officer. The fact that other officers came to C.O.
Alexander’s aid before Appellant caused serious bodily injury to him does not
preclude a finding that Appellant acted with intent to inflict serious bodily
injury. See Dailey, supra. Accordingly, we hold the evidence was sufficient
to sustain Appellant’s conviction for aggravated assault under 18 Pa.C.S.A. §
2702(a)(2).
For all of the foregoing reasons, we affirm.
Affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 12/27/2023
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