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Commonwealth v. Domek

Superior Court of Pennsylvania

July 21, 2017

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES LAMONT DOMEK Appellant

         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

          BOWES, J.

         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 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Commonwealth v. Domek, 108 A.3d 126 (Pa.Super. 2014) (unpublished memorandum) at *1-3.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 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.

         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 ...

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