The opinion
J-S76033-14
2015 PA Super 7
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
DAVID J. BLACK
Appellee No. 1179 WDA 2014
Appeal from the Order Entered July 18, 2014
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0000523-2014
BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND OLSON, JJ.
OPINION BY OLSON, J.: FILED JANUARY 13, 2015
The Commonwealth appeals from the order entered on July 18, 2014,
granting the petition for writ of habeas corpus filed on behalf of David J.
Black (hereinafter “Sergeant Black”) and dismissing the charge of recklessly
endangering another person (hereinafter “REAP”). We vacate and remand
for further proceedings.
On February 21, 2014, the Commonwealth filed a criminal complaint
against Sergeant Black, accusing him of REAP while he was working at the
State Correctional Institute at Fayette (hereinafter “SCI-Fayette”). The
attached affidavit of probable cause averred the following:
On [October 20, 2013, Sergeant Black] did engage in
conduct which placed another person in danger of death or
serious bodily injury. To [w]it: [Sergeant Black] admitted
to his immediate supervisor that he opened an empty cell at
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[SCI-]Fayette and allowed two inmates to enter for the
purpose of “[s]ettling their differences.” Inmate Alexander
Fulton [(hereinafter “Mr. Fulton”)] and Inmate Brandon
Duncan [(hereinafter “Mr. Duncan”)] entered the empty cell
when [Mr. Fulton] struck [Mr. Duncan] in the head with a
combination lock that was concealed in a brown knit hat.
This caused serious bodily injury to [Mr. Duncan] that
required medical attention. Review of cell door reports,
video footage[,] and interviews conducted revealed that
[Sergeant Black] was alone in the control booth at the time
the unoccupied cell was opened and [he] was the only
person who could have opened the cell. There were several
safeguards in place that would have indicated the cell was
unoccupied[, which] include[:] the computer touch screen in
the control booth, the count board and the move book, all
of which would have told [Sergeant Black] the cell was
empty. [All o]ther correction officers on duty at the time
were [] aware that the cell [Sergeant Black] opened was
empty. This cell was also “capped” which prevents it from
being opened [accidentally]. . . .
A [timeline] that was created from these reports shows that
[Sergeant Black] was first seen talking with [Mr. Fulton],
and then seconds later [Sergeant Black] opened [Mr.
Fulton’s] locked cell. It is believed that this is when [Mr.
Fulton] retrieved the combination lock used in the assault.
A few seconds later [Sergeant Black] opened the cell where
the assault took place. . . .
After the fight was over, [Sergeant Black] admitted to
[Captain] Richard Workman [hereinafter (“Captain
Workman”)] that he opened the cell door and allowed the
inmates to “[s]ettle their differences, but didn’t think they
would fight.” [Sergeant Black] is responsible for
maintaining security and safe operations within their unit in
accordance with the guidelines established through
appropriate departmental and institutional directives,
rules[,] regulations[,] policies[,] and special orders. It is
[Sergeant Black’s] responsibility and duty to provide care,
custody[,] and control to the inmates on his post. . . .
Affidavit of Probable Cause, 2/21/14, at 1.
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Sergeant Black’s preliminary hearing took place on March 17, 2014.
During this preliminary hearing, the magisterial district judge heard
testimony from Mr. Duncan, Captain Workman, and Criminal Investigator
Frank J. Kamalich (hereinafter “Investigator Kamalich”).
During the preliminary hearing, Mr. Duncan testified that, at the time
of the assault, he was an inmate at SCI-Fayette and was housed on the
prison’s “F Block.”1 N.T. Preliminary Hearing, 3/17/14, at 6. Mr. Duncan
testified that Mr. Fulton was a fellow inmate at SCI-Fayette and that Mr.
Fulton was also housed on F Block. Id. at 7. As Mr. Duncan testified, while
Mr. Fulton spent most of his time in a wheelchair, Mr. Fulton was “fully
capable” of doing such things as “walking, exercising, [and] working out.”
Id. at 18. Sergeant Black was the sergeant on F Block. Id. at 6.
Mr. Duncan testified that, in the days prior to the assault, he and Mr.
Fulton had been at odds. Specifically, Mr. Duncan testified that: on or
about October 17, 2013, he and Mr. Fulton had “a little verbal altercation;”
on October 18, 2013, he and Mr. Fulton “spoke shortly;” and, on October 19,
2013, he and Mr. Fulton had “probably about a . . . five-minute argument.”
Id. at 11. As to whether Sergeant Black was aware of the animosity
between Mr. Duncan and Mr. Fulton, Mr. Duncan testified: “me and
____________________________________________
1
Mr. Duncan testified that, at the time of the assault, he was 31 years old
and was serving a 20 to 40 year term of imprisonment for third-degree
murder. N.T. Preliminary Hearing, 3/17/14, at 17-18.
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Sergeant Black never spoke with each other, so I wouldn’t be able to say
with certainty that [the sergeant] was aware of” the conflict between Mr.
Duncan and Mr. Fulton. Id. at 11-12.
As Mr. Duncan testified, on the evening of October 19, 2013,2 the 35
to 40 inmates on F Block were outside of their cells and congregating in the
“day room,” where they were able to do such things as “[w]atch TV[,] play
cards, [or] use the phone.” Id. at 7 and 14. The evidence demonstrates
that, while the inmates were in the day room, the relevant prison cells at
issue were locked and could only be opened from the guard’s control room.
See id. at 44-46 and 49-50. Moreover, the evidence demonstrates that,
during the relevant time, Sergeant Black was the only prison official in the
guard’s control room. Id. at 54.
Mr. Duncan testified that, while the inmates were congregating in the
day room, he saw Sergeant Black in the guard’s control room, speaking with
Mr. Fulton. Id. at 8. Mr. Duncan testified that, after Mr. Fulton spoke to
Sergeant Black, Mr. Duncan saw that Mr. Fulton was allowed back into his
own cell for “maybe half a minute or whatever.” Id. at 8. Mr. Duncan then
witnessed Mr. Fulton exit his cell, roll his wheelchair toward an empty cell “in
____________________________________________
2
Both Mr. Duncan and Captain Workman testified that the assault occurred
on October 19, 2013. However, Investigator Kamalich testified that the
assault occurred on October 20, 2013.
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the back of the block,” exit his wheelchair, and walk into the empty cell. Id.
at 8-9.
According to Mr. Duncan, after Mr. Fulton was inside of the rear prison
cell, Mr. Fulton “screamed” for Mr. Duncan’s attention. Id. at 20. Mr.
Duncan testified that he arose from his seat and walked toward the rear
prison cell. When he reached the cell, Mr. Duncan testified that he heard the
“clack-clack” of the prison cell door unlocking. Id. at 9. The door then
opened, with Mr. Fulton standing inside of the darkened prison cell. Id. at
20.
With the door to the cell open, Mr. Duncan asked Mr. Fulton “[w]hat’s
going on?,” with Mr. Fulton replying “[n]othing, I just want to rumble.” Id.
At that point, Mr. Duncan testified, he felt as though prison culture left him
with “no other choice but to go in . . . that cell” and fight Mr. Fulton. Id. at
32. Mr. Duncan testified:
If I wouldn’t have [gone back there and fought him], I’d be
like the biggest coward, like in the jail, if I’d just sat there
and the cell opened up and he’s in there, and I’m just like,
“Okay, now, I’m cool. I’m not going in there and fight him.”
You know. . . . I just felt like, you know, that my back was
up against a wall. Like, now, the cell’s opened up. You
either go in there or, you know, like I’d be a coward.
Id. at 14-15 and 33.
Mr. Duncan testified that he walked into the cell, turned on the light,
and – at that moment – was struck in the back of his head with a
combination lock that was swung, by Mr. Fulton, from inside of a winter hat.
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Id. at 10 and 27. As Mr. Duncan testified, after Mr. Fulton struck him with
the lock: “We fight. I held his hand trying to get the lock off of him. I hit
him a couple times, and a couple [correctional officers] came in there and
broke the fight up.” Id. at 10.
Mr. Duncan testified that the assault caused him to suffer a gash to his
head, which required six staples to close. Id. at 11.
Captain Workman next testified at the preliminary hearing. Captain
Workman testified that, on the night of October 19, 2013, he was the shift
commander at SCI-Fayette. According to Captain Workman:
At approximately 2000 hours, I received a phone call from
Sergeant Black from . . . F Unit – that’s his regular unit.
And he said he wanted to discuss an incident with me but
not over the telephone. He said he wanted to meet me on
the walks. And I told him, I said, “No,” I said, “Tell me
what’s going on.” And he said that he had messed up. He
said he let an inmate into a cell, two [] inmates fought, and
that’s what had happened. So, then, I told him, I said,
“Well, what I’ll do is, I’m going to send Lieutenants down.
They’re going to collect the inmates. They’re going to take
them to medical to be assessed for injuries, then they’ll be
processed into the RHU.” And, then, I told Sergeant Black,
I said, “Make sure your misconducts and your 121’s are in
order and get them to Control when completed.”
Id. at 36-37.
The evidence at the preliminary hearing indicates that the fight
between Mr. Fulton and Mr. Duncan occurred at approximately 7:45 p.m.
and that Captain Workman received the above-summarized telephone call at
approximately 8:06 p.m. Id. at 51-52. However, Captain Workman
testified, in those intervening 21 minutes, no other prison official had been
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informed of the fight between Mr. Fulton and Mr. Duncan – including those in
the medical department. Id. at 37-38. Captain Workman testified that this
delay in notification was contrary to established prison procedure. According
to Captain Workman:
If inmates fight, as soon as it’s discovered, then the person
would call Control and say, “Hey, we got a fight.” That way,
you know to dispatch officers as needed to stop it. The
inmates are then secured, then they’ll go to RHU – or
medical to be assessed for injuries, then they’ll be
processed into the RHU.
Id. at 37.
Captain Workman testified that, later on that night, he was doing his
rounds in the prison when Sergeant Black approached him to talk. Captain
Workman testified:
[Sergeant Black] asked me if he could talk to me, and I
said, “Yeah, you can talk to me.” And then he said that he
thought that the inmate still lived in that cell where the fight
occurred, and that he didn’t know that they were going to
fight. He said they went in there to settle a difference, but
he didn’t think they were going to fight. He told me, he
said, “You know, I’m going to be honest with you. I don’t
want to lie to you.” And I stopped him, I said, “Listen,
security is going to be looking into this.” I said, “When
security questions you, go ahead and tell the truth,” and
then I went and completed my rounds.
Id. at 38-39.
Captain Workman explained that the fight occurred in a “capped”
prison cell – which, in this case, meant that the cell was unoccupied and that
it would not open unless it was specifically unlocked by the guard in the
control room. Id. at 44-45. Captain Workman testified that there would
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have been no “reason when inmates are in the day room to allow inmates
into an empty or vacant cell.” Id.
The final witness to testify at the preliminary hearing was Investigator
Kamalich. Investigator Kamalich testified that he is a criminal investigator
for the Department of Corrections’ Office of Special Investigations
Intelligence and that he investigated the actions of SCI-Fayette’s employees
on the night of October 20, 2013.3 Id. at 47. Investigator Kamalich
testified that the video surveillance, electronic prison cell “door reports,”4
and interviews revealed the following:
if you recall from [Mr. Duncan’s] testimony, [Mr. Duncan
and Mr. Fulton] had their final disagreement, and that’s
when [Mr. Fulton] went up to the bubble[5] and talked with
Sergeant Black up at the bubble. The video shows, [Mr.
Fulton] then turns from there and heads behind [Mr.
Duncan] who’s seated in the day room.
...
And you see [Mr.] Fulton go behind [Mr. Duncan] and then
go into his cell. And I believe that he was in there for [41]
____________________________________________
3
Investigator Kamalich testified that the Department of Corrections’ Office
of Special Investigations Intelligence is similar to a law enforcement
agency’s internal affairs division. N.T. Preliminary Hearing, 3/17/14, at 47.
Investigator Kamalich testified that he “[doesn’t] literally deal with inmates.
[He] deal[s] with employees – staff.” Id.
4
Investigator Kamalich testified that “[e]very time a door opens and closes,
it generates a report.” N.T. Preliminary Hearing, 3/17/14, at 48.
5
The “bubble” is prison vernacular for the guard’s control booth. N.T.
Preliminary Hearing, 3/17/14, at 8.
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seconds. Then, you see him come back out of the cell, and
you see it close. . . . [Mr. Fulton] turns to the right to head
back to the cell that they fought in. . . . [17] seconds after
[Mr. Fulton left his cell, the vacant cell – numbered cell 108
– opened].
...
Officer Cercone tells me that he was out back smoking
[when all of this occurred]. . . . [Officer Cercone] was
returning back to [his station] when he saw Sergeant Black
sort of rushing out of the bubble headed back towards the
108 cell. He doesn’t know what’s going on. He follows
Sergeant Black and Officer Bigelow back to that cell where
they find [Mr.] Duncan and [Mr.] Fulton fighting, and they
get in there and they break up the fight. Now, [Officer]
Cercone tells me that they just let [Mr.] Fulton to go lock in
his cell which is around the corner, 115 cell, but they didn’t
take the lock or anything off of him or pat him down or
search him. He should have been cuffed right there. That’s
the policy, and that’s when [Captain] Workman should have
been called when, in fact, [Captain] Workman wasn’t called
for [21] minutes after that happened.
Id. at 49-51.
Investigator Kamalich indicated that Sergeant Black should have
known that cell 108 was vacant and that Sergeant Black should not have
opened the cell for either Mr. Fulton or Mr. Duncan. According to
Investigator Kamalich:
this is [Sergeant Black’s] regular gig. This is where he
works every day, in this F Block. Not only do you know
your inmates, you know what cell they’re in, you know what
cells are empty. Now, there’s several things that [would
have indicated that cell 108 was vacant]. There’s what they
call a count board. There’s a huge board as you walk inside
the bubble where the Sergeant usually works, and it shows
who’s in each cell, and they also have a line through if
there’s an empty cell. That’s one way. There’s also what
they call a move book. The move book would show that if
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an inmate moved while Sergeant Black was on duty, clearly
it would show that. It’s his responsibility to review that
material when he changed shifts. . . . The third way would
be, they have an automatic touch screen inside the control
bubble; and, when a door is capped, as [Captain] Workman
explained to you, there’s a light that indicates on there if it’s
a capped cell. There’s a reason it’s capped, because it’s
empty; because, when they would do what they call a group
release and open up a whole range of doors, that would
prevent that empty cell from opening.
Id. at 52-53.
At the conclusion of the preliminary hearing, the magisterial district
judge bound Sergeant Black over for court on the charge of REAP. Id. at
67.
On April 21, 2014, Sergeant Black filed an “omnibus pre[-]trial motion
for relief in the nature of a writ of habeas corpus and in the nature of a
motion to dismiss based upon a lack of evidence to make a prima facie case”
(hereinafter “Sergeant Black’s petition for writ of habeas corpus”). Sergeant
Black’s petition for writ of habeas corpus, 4/21/14, at 1 (some internal
capitalization omitted) (internal italicization added). Within Sergeant Black’s
petition for writ of habeas corpus, Sergeant Black claimed that “[t]he
Commonwealth failed to meet its prima facie case to establish that
[Sergeant Black] committed the crime of [REAP] . . . [because the
Commonwealth] . . . offered [no] evidence to show that [Sergeant Black]
knew that the two inmates were going to fight, knew that either inmate was
accompanied by a weapon, or acted any differently in his response to the
fight.” Id. at 2-3.
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On June 9, 2014, the trial court held a hearing on Sergeant Black’s
petition for writ of habeas corpus, during which time the Commonwealth
introduced the transcript from the March 17, 2014 preliminary hearing and
Sergeant Black introduced two written statements that Mr. Fulton gave to
investigators.6 N.T. Habeas Corpus Hearing, 6/9/14, at 2-7. The hearing
then concluded without the introduction of any new testimony.
On July 18, 2014, the trial court entered an order granting Sergeant
Black’s petition for writ of habeas corpus and dismissing the charge of REAP.
Within the trial court’s contemporaneously filed opinion, the trial court
explained that it was granting Sergeant Black relief because it found that
“[Mr.] Fulton asked [Sergeant Black] to open the cell so that he could get
some food from the cell” and that “[Sergeant Black] was not aware that
[Mr.] Fulton planned to fight with [Mr.] Duncan.” Trial Court Opinion,
7/18/14, at 2. As a result of these factual findings and credibility
determinations, the trial court concluded that it is “establish[ed]” that
Sergeant Black “was unaware that the cell was being opened so that a fight
could take place.” Id. at 3-4. The trial court thus concluded that “the
Commonwealth failed to sustain its burden that [the crime of REAP] had
been committed.” Id. at 4.
____________________________________________
6
The written statements that Mr. Fulton gave to the investigators are not
included in the certified record.
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The Commonwealth filed a timely notice of appeal and now raises the
following claim to this Court:
Whether the [trial] court erred in granting [Sergeant
Black’s] pre[-]trial motion to dismiss when the
Commonwealth established a prima facie case that
[Sergeant Black] consciously disregarded a known risk of
death or serious[] bodily injury to the victim[?]
The Commonwealth’s Brief at 1 (some internal capitalization omitted).
As this Court has explained:
The decision to grant or deny a petition for writ of habeas
corpus will be reversed on appeal only for a manifest abuse
of discretion. It is settled that a petition for writ of habeas
corpus is the proper means for testing a pre-trial finding
that the Commonwealth has sufficient evidence to establish
a prima facie case. Although a habeas corpus hearing is
similar to a preliminary hearing, in a habeas corpus
proceeding the Commonwealth has the opportunity to
present additional evidence to establish that the defendant
has committed the elements of the offense charged. . . .
A prima facie case consists of evidence, read in the light
most favorable to the Commonwealth, that sufficiently
establishes both the commission of a crime and that the
accused is probably the perpetrator of that crime. The
Commonwealth need not prove the defendant’s guilt beyond
a reasonable doubt. Rather, the Commonwealth must show
sufficient probable cause that the defendant committed the
offense, and the evidence should be such that if presented
at trial, and accepted as true, the judge would be warranted
in allowing the case to go to the jury.
Commonwealth v. Fountain, 811 A.2d 24, 25-26 (Pa. Super. 2002)
(internal quotations and citations omitted).
We have held that “[i]n determining the presence or absence of a
prima facie case, inferences reasonably drawn from the evidence of record
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that would support a verdict of guilty are to be given effect, but suspicion
and conjecture are not evidence and are unacceptable as such.”
Commonwealth v. Hendricks, 927 A.2d 289, 291 (Pa. Super. 2007)
(internal quotations and citations omitted). Further, since a trial court must
view the evidence in the light most favorable to the Commonwealth when
ruling upon a petition for writ of habeas corpus, “it is inappropriate for the
trial court to make credibility determinations in deciding whether the
Commonwealth established a prima facie case.” Commonwealth v.
Landis, 48 A.3d 432, 448 (Pa. Super. 2012).
On appeal, the Commonwealth claims that the trial court erred when it
granted Sergeant Black’s petition for writ of habeas corpus. According to the
Commonwealth, when the record is viewed in the proper light, it
demonstrates that the Commonwealth presented a prima facie case that
Sergeant Black committed the crime of REAP. As the Commonwealth
argues:
[Sergeant Black] placed [Mr. Duncan] in [a “capped” cell]
with an inmate [Mr. Duncan] had issues with who was given
the opportunity to go to his cell moments before [the] cell
was opened. [Sergeant Black’s] actions allowed [Mr.]
Duncan’s assailant to arm himself and gave him a [vacant]
cell to settle differences. . . . [Sergeant Black] created a
ring and threw [Mr.] Duncan in it with an inmate who had
the opportunity to gather a weapon, thus [Sergeant Black]
consciously disregarded a risk of death or serious bodily
injury.
The Commonwealth’s Brief at 6-7.
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We agree with the Commonwealth and, therefore, we vacate the trial
court’s order and remand for further proceedings.
The Commonwealth charged Sergeant Black with REAP, which is
defined in the following manner:
§ 2705. Recklessly endangering another person
A person commits a misdemeanor of the second degree if
he recklessly engages in conduct which places or may place
another person in danger of death or serious bodily injury.
18 Pa.C.S.A. § 2705.
“Serious bodily injury” is defined as “[b]odily injury which creates a
substantial risk of death or which causes serious, permanent disfigurement,
or protracted loss or impairment of the function of any bodily member or
organ.” 18 Pa.C.S.A. § 2301. “Bodily injury” is defined as an “[i]mpairment
of physical condition or substantial pain.” Id.
This Court has explained that the crime of REAP is “directed against
reckless conduct entailing a serious risk to life or limb out of proportion to
any utility the conduct might have.” Commonwealth v. Vogelsong, 90
A.3d 717, 719 (Pa. Super. 2014) (internal quotations and citations omitted).
For the Commonwealth to establish a prima facie case of REAP, the evidence
must show that “the defendant had an actual present ability to inflict harm
and not merely the apparent ability to do so. Danger, not merely the
apprehension of danger, must be created.” Commonwealth v.
Martuscelli, 54 A.3d 940, 949 (Pa. Super. 2012). However, as we have
explained, “[i]t is not [the defendant himself] that must be [shown] to have
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the present ability to cause death or serious bodily injury to another, it is
[the defendant’s] actions.” Vogelsong, 90 A.3d at 721 (defendant’s action
of allowing her horse to roam freely on a roadway was sufficient to sustain a
conviction for REAP).
The mens rea for REAP is recklessness. Under the Crimes Code, a
person acts recklessly with respect to a material element of an offense
when:
he consciously disregards a substantial and unjustifiable risk
that the material element exists or will result from his
conduct. The risk must be of such a nature and degree
that, considering the nature and intent of the actor’s
conduct and the circumstances known to him, its disregard
involves a gross deviation from the standard of conduct that
a reasonable person would observe in the actor’s situation.
18 Pa.C.S.A. § 302(b)(3).
Thus, to establish a prima facie case of REAP against Sergeant Black,
the Commonwealth must demonstrate that Sergeant Black consciously
disregarded a substantial and unjustifiable risk that his conduct “placed or
may have placed [Mr. Duncan] in danger of serious bodily injury or death.”
Vogelsong, 90 A.3d at 721.
At the outset, we conclude that the trial court erred when it made
factual findings and credibility determinations from the evidence that was
presented during the habeas corpus hearing. As was explained above, the
trial court granted Sergeant Black’s petition for writ of habeas corpus and
dismissed the REAP charge against Sergeant Black primarily because the
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court had reached three factual findings: that “[Mr.] Fulton asked [Sergeant
Black] to open the cell so that he could get some food from the cell;” that
“[Sergeant Black] was not aware that [Mr.] Fulton planned to fight with
[Mr.] Duncan;” and, that Sergeant Black “was unaware that the cell was
being opened so that a fight could take place.” Trial Court Opinion, 7/18/14,
at 2-4. These factual determinations were apparently garnered from
statements that Mr. Fulton made to investigators – and that Sergeant Black
introduced, on his own behalf, during the habeas corpus hearing. See Trial
Court Opinion, 7/18/14, at 2 (trial court citing to Mr. Fulton’s statements as
supporting its factual findings).
However, as we have explained, Mr. Fulton’s statements were not
included in the certified record to this Court. Moreover, to the extent Mr.
Fulton’s statements support Sergeant Black’s version of the events, the
statements were irrelevant to deciding Sergeant Black’s petition for writ of
habeas corpus and are irrelevant to deciding the instant appeal. See
Commonwealth v. Fountain, 811 A.2d 24, 25 (Pa. Super. 2002) (“[a]
prima facie case consists of evidence, read in the light most favorable to
the Commonwealth, that sufficiently establishes both the commission of a
crime and that the accused is probably the perpetrator of that crime”)
(emphasis added) (internal quotations and citations omitted);
Commonwealth v. Wojdak, 466 A.2d 991, 997 (Pa. 1983) (“the weight
and credibility of the evidence are not factors” for determining whether the
Commonwealth has presented a prima facie case).
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The trial court thus erred when it made credibility determinations and
concluded that Mr. Fulton’s (alleged) statements to the investigators were
true. Simply stated, the credibility of Mr. Fulton’s statements could not and
should not have been considered when determining whether the
Commonwealth presented a prima facie case against Sergeant Black.
Wojdak, 466 A.2d at 997.
Further, we conclude that, when the evidence is viewed in the light
most favorable to the Commonwealth, the evidence “sufficiently establishes
both the commission of [the] crime [of REAP] and that [Sergeant Black wa]s
probably the perpetrator of that crime.” Fountain, 811 A.2d at 25-26.
Viewed in the light most favorable to the Commonwealth, the direct
evidence in this case demonstrates the following: in the days prior to the
assault, Mr. Duncan and Mr. Fulton had been verbally hostile to one another;
immediately prior to and during the assault, the inmates on F Block were in
the “day room” and were locked out of their cells; immediately prior to and
during the assault, Sergeant Black was the only corrections officer who was
in the guard’s control room and Sergeant Black was the only individual who
could have opened the locked prison cells; Mr. Fulton spoke with Sergeant
Black minutes prior to the assault; immediately after Mr. Fulton spoke with
Sergeant Black, Sergeant Black opened Mr. Fulton’s cell and allowed Mr.
Fulton to enter his cell; Mr. Fulton was inside of his cell for 41 seconds; after
Mr. Fulton left his cell, Mr. Fulton immediately went down to the end of the
hall, where Sergeant Black opened a vacant, “capped” cell for Mr. Fulton;
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when Sergeant Black opened the “capped” cell, Sergeant Black knew that
Mr. Fulton intended to use the cell to “settle a difference” with Mr. Duncan;
after Mr. Fulton entered the cell, Mr. Fulton “screamed” for Mr. Duncan’s
attention – while 35 to 40 inmates congregated in the day room; Mr. Duncan
walked back to the cell where Mr. Fulton was waiting and, when Mr. Duncan
got back to the cell, Sergeant Black opened the cell for Mr. Duncan to enter;
when Sergeant Black opened the cell door, Mr. Duncan felt as though prison
culture left him with “no other choice but to go in . . . that cell” and fight Mr.
Fulton; Mr. Duncan entered the cell, turned around to turn on the light to
the darkened cell, and was struck in the back of his head with a combination
lock that was swung, by Mr. Fulton, from inside of a winter hat; and, the
assault caused Mr. Duncan to suffer a gash to the back of his head, which
required six staples to close.
A number of reasonable inferences may be drawn from this direct
evidence. Again, viewing the evidence in the light most favorable to the
Commonwealth which we must do, these inferences include: Sergeant Black
knew that Mr. Fulton was going to use the “capped” cell to fight Mr. Duncan;
Sergeant Black not only knew that Mr. Fulton was going into the fight armed
with a weapon, but Sergeant Black enabled Mr. Fulton to arm himself with a
combination lock in preparation for the fight; Sergeant Black knew that,
when he unlocked the “capped” cell door, there was a substantial risk that,
in view of the culture within the prison, Mr. Duncan would be forced to enter
the cell and accede to the fight with Mr. Fulton; and, Sergeant Black knew
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J-S76033-14
that Mr. Duncan was going into the fight weaponless, against a weapon-
wielding opponent.
Obviously, we have a limited record at this stage and the above
inferences are not the only inferences that may be drawn. A fact finder at
trial may reach a different conclusion. However, when the evidence is
viewed in the light most favorable to the Commonwealth, the above
inferences are reasonable and are sufficient to support a prima facie case
that Sergeant Black consciously disregarded a substantial and unjustifiable
risk that his conduct “placed or may have placed [Mr. Duncan] in danger of
serious bodily injury or death.” Vogelsong, 90 A.3d at 721.
The evidence is thus sufficient to establish a prima facie case against
Sergeant Black, with respect to the crime of REAP. The trial court erred in
concluding otherwise.
Order vacated. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/13/2015
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