J-S29037-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : HOWARD BISHOP : : Appellant : No. 1697 MDA 2022
Appeal from the Judgment of Sentence Entered October 7, 2022 In the Court of Common Pleas of Huntingdon County Criminal Division at No(s): CP-31-CR-0000082-2021
BEFORE: MURRAY, J., KING, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: OCTOBER 12, 2023
Appellant, Howard Bishop, appeals from the aggregate judgment of
sentence of 171/2 to 35 years’ incarceration, imposed for his convictions of
attempted rape, aggravated assault by putting an employee of a correctional
institution in fear of imminent serious bodily injury, and unlawful restraint.1
For the reasons set forth below, we affirm Appellant’s attempted rape and
aggravated assault convictions, but vacate his unlawful restraint conviction
and judgment of sentence and remand for resentencing.
Appellant, an inmate at SCI-Smithfield, was charged with the above
offenses and indecent assault, false imprisonment, simple assault, and
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 901(a) and 3121(a)(1), 2702(a)(6), (c)(9), and 2902(a)(1),
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harassment for attacking a female SCI-Smithfield corrections counselor
(Victim) on November 10, 2020. A jury trial was held on July 13, 2022, at
which Victim and three corrections officers testified.
Victim testified that she asked Appellant on November 10, 2020 to call
his mother because Appellant’s mother had phoned her expressing concern
that Appellant had not called her for months and was worried about him. N.T.
Trial at 12-13, 16. Victim testified that Appellant wasn’t sure that he had his
mother’s telephone number, that she went to her office to get the number for
him, and that Appellant followed her into the office and shut the door. Id. at
16. She testified that she got the number for Appellant, gave it to him, and
asked Appellant to leave the office. Id. at 17-18. Victim testified that
Appellant did not leave the office after she requested several times that he
leave, that she screamed and pressed the duress alarm because he refused
to leave, and that Appellant grabbed her tightly from behind when she leaned
over her desk to press the alarm and began rubbing her crotch and breasts.
Id. at 18-19. Victim testified that she felt Appellant trying to pull her pants
down, that she dropped to the floor to keep him from getting her pants off,
and that she screamed, yelled for help, and tried to fight Appellant off. Id. at
19-20. She testified that when she yelled for help, Appellant covered her
mouth with his hand and said “you don’t want them to hear” and that Appellant
“was whispering in my ear like this was something that I wanted.” Id. at 20-
21. Victim testified that while she was on the floor screaming, struggling
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against Appellant, and trying to reach the door, she saw the door open and
that corrections officers came in and grabbed Appellant and pushed him away
from her. Id. at 20. Victim testified that the only physical injuries that she
suffered were some bruises, but that she was terrified and in fear of suffering
serious injury while Appellant was attacking her. Id. at 21, 24-25.
The corrections officer who first came to Victim’s aid testified that he
heard a female voice screaming and immediately went to the office from which
the screams were coming. N.T. Trial at 31-32. This corrections officer
testified that when he opened the office door, he saw Victim crawling on the
floor and saw Appellant climbing off of Victim with his penis hanging out of his
pants. Id. at 31-34. This corrections officer testified that he immediately
grabbed Appellant and pinned Appellant against the desk and that two other
corrections officers who had followed him into the office put handcuffs on
Appellant. Id. at 31, 33, 35.
One of the two other corrections officers who came to Victim’s aid
testified that he heard a female scream and an alarm bell go off and went to
the office, where two officers had Appellant over the desk and were trying to
put handcuffs on him. N.T. Trial at 40-41. This officer testified that he
grabbed one of Appellant’s arms that Appellant was holding underneath
himself and pulled it behind Appellant’s back to help handcuff Appellant. Id.
at 40. A corrections officer who was not on the cell block where the attack
occurred testified that when Appellant was brought to the medical area after
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he attacked Victim, Appellant said to the officers, “come on guys. I was just
trying to get some pussy.” Id. at 45-46.
Appellant introduced a stipulation that the remaining corrections officer
who came to Victim’s aid if called would testify that he handcuffed Appellant
and that he did not see Appellant’s penis or place it back in Appellant’s pants.
N.T. Trial at 54-55. Appellant did not testify at trial. Id. at 56-57.
The jury convicted Appellant of attempted rape, aggravated assault by
putting an employee of a correctional institution in fear of imminent serious
bodily injury, unlawful restraint, indecent assault, false imprisonment, and
simple assault, and the trial court, as finder of fact on the summary charge of
harassment, found Appellant guilty of harassment. N.T. Trial at 74; Verdict
Slip; Verdict Order. On October 7, 2022, the trial court sentenced Appellant
to 10 to 20 years’ incarceration for attempted rape consecutive any other
sentence that he was serving, a consecutive term of 5 to 10 years’
incarceration for the aggravated assault conviction, and a consecutive term of
21/2 to 5 years’ incarceration for unlawful restraint, resulting in an aggregate
judgment of sentence of 171/2 to 35 years’ incarceration consecutive any other
sentence that he was serving. N.T. Sentencing at 7-8, 10; Sentence Order.
The trial court imposed no sentence for the remaining four offenses on the
ground that indecent assault merged with the attempted rape conviction, false
imprisonment merged with the unlawful restraint conviction, and simple
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assault and harassment merged with the aggravated assault conviction. N.T.
Sentencing at 2-3, 7-8.
Appellant filed a timely post-sentence motion on October 17, 2022, in
which he sought a new trial on all counts on the ground that the guilty verdicts
were against the weight of the evidence and also sought judgment of acquittal
on the attempted rape, aggravated assault, and unlawful restraint charges.
The trial court denied Appellant’s post-sentence motion on December 9, 2022,
and this timely appeal followed.
Appellant raises the following three issues in this appeal:
I. Whether the verdict of guilty on the charge of Criminal Attempt - Rape (F1) was against the weight of the evidence in that there was no evidence of a specific intent to commit a rape since the complaining witness’s clothes were not removed in any way, the complaining witness testified that she positioned herself in such a manner as to make penetration impossible, there was no penetration of any kind, any contact with the complaining witness’s breasts was incident to an actual physical assault, and there was no evidence of arousal or gratification in regard to either [Appellant] and/or the complaining witness?
IL Whether the verdict of guilty on the charge of Aggravated Assault by Physical Menace - Certain Designated Persons (F2) was against the weight of the evidence in that there was no evidence of a “serious bodily injury” that was sustained and/or evidence that the potential infliction of an injury of this magnitude was “imminent”, but rather any fear was unreasonable and a product of an overreaction to an unexpected event?
III. Whether the verdict of guilty on the charge of Unlawful Restraint (M[1]) was against the weight of the evidence in that there was no evidence that the complaining witness was exposed to an actual danger of a “serious bodily injury” as there was no serious bodily injury of any kind sustained by anyone in the underlying event, there were no marks or other evidence of restraint, the door to the office remained unlocked at all times,
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and multiple other corrections officer[s] were within ear shot of the incident at all pertinent times?
Appellant’s Brief at 7-8 (suggested answers, unnecessary capitalization, and
footnote omitted).
Appellant states each of these issues as a claim that one of the
Appellant’s convictions was against the weight of the evidence. A new trial
may be granted on the ground that the verdict is against the weight of the
evidence only where the verdict was so contrary to the evidence that it shocks
the trial court’s sense of justice. Commonwealth v. James, 268 A.3d 461,
468 (Pa. Super. 2021); Commonwealth v. Antidormi, 84 A.3d 736, 758
(Pa. Super. 2014). Our review of the denial of a motion for a new trial based
on weight of the evidence is limited. We review whether the trial court abused
its discretion in concluding that the verdict was not against the weight of the
evidence, not whether the verdict, in this Court’s opinion, was against the
weight of the evidence. Commonwealth v. Clemons, 200 A.3d 441, 463-
64 (Pa. 2019); Commonwealth v. Delmonico, 251 A.3d 829, 837 (Pa.
Super. 2021).
Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge …. One of the least assailable reasons for granting or denying a new trial is the lower court’s conviction that the verdict was or was not against the weight of the evidence.
Antidormi, 84 A.3d at 758 (quoting Commonwealth v. Clay, 64 A.3d 1049,
(Pa. 2013)) (brackets omitted).
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In his first issue, Appellant argues that the testimony of one of the
corrections officers that Appellant had his penis out was contradicted by lack
of evidence that anyone put it back in Appellant’s pants and that the testimony
of another corrections officer that Appellant said that he was “trying to get
some pussy” was unreliable because only the word “pussy” could be heard on
a video recording of the interaction in which Appellant made the statement.
These contentions do not show that the verdict was against the weight of the
evidence. The trial court, which heard the testimony and observed the
witnesses’ demeanor, found the testimony of both witnesses credible. Trial
Court Opinion at 6, 8. That conclusion was not an abuse of discretion. Neither
witness’s testimony was inconsistent with the other evidence at trial. The fact
that no corrections officer put Appellant’s penis back in his pants after the
attack does not discredit the testimony that his penis was out when he was
attacking Victim, as two corrections officers testified that Appellant had one
of his hands in front of and underneath him before he was handcuffed, N.T.
Trial at 33, 40, and Appellant therefore could have done that himself. While
only the word “pussy” could be heard on the video, which was played at trial,
and the rest of what Appellant was saying was not audible, Trial Court Opinion
at 6, the fact that the video did not capture the full statement does not
contradict the witness’s testimony as to what he heard Appellant say.
Appellant also contends that the attempted rape verdict was against the
weight of the evidence because the evidence allegedly was too speculative or
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unreliable to show that Appellant intended to commit a rape. This argument
is patently without merit. There was testimony at trial from Victim and two
corrections officers that Appellant grabbed Victim, fondled her private parts,
tried to pull her pants down, was climbing off of Victim with his penis out when
he was stopped, and said that he was “trying to get some pussy.” N.T. Trial
at 19, 21, 27, 31-34, 45-46. That testimony, which the trial court concluded
was credible, Trial Court Opinion at 6, 8, is amply sufficient to show intent to
rape and that Appellant committed the offense of attempted rape.
Commonwealth v. Faison, 297 A.3d 810, 831 (Pa. Super. 2023) (evidence
was sufficient to prove attempted rape where defendant pinned victim and
removed her pants and admitted to police that he was “just trying to get some
pussy”); Commonwealth v. Moody, 441 A.2d 371, 372-73 (Pa. Super.
1982) (evidence was sufficient to prove attempted rape where defendant
forced a victim into his basement, fondled her genitalia and began to unzip
his pants before she escaped); Commonwealth v. Bullock, 393 A.2d 921,
923 (Pa. Super. 1978) (en banc) (evidence was sufficient to prove attempted
rape where defendant grabbed victim, tore open her blouse, pulled down her
bra, and tried to remove her pants). The trial court therefore did not abuse
its discretion in holding that the attempted rape verdict was not against the
weight of the evidence.
In his second and third issues, Appellant argues that his aggravated
assault and unlawful restraint convictions were against the weight of the
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evidence solely on the ground that the evidence at trial was allegedly
insufficient to prove the elements of these offenses. Such arguments are in
fact challenges to the sufficiency of the evidence, not the weight of the
evidence. Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa. Super. 2003).
The distinction between a claim challenging the sufficiency of evidence and a claim challenging the weight of evidence is critical. A motion for a new trial on the grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict but claims that “notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.” A claim challenging the sufficiency of the evidence, however, asserts that there is insufficient evidence to support at least one material element of the crime for which [the defendant] has been convicted.
Id. (quoting Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000))
(citations omitted). We therefore address these claims as sufficiency of the
evidence claims and accordingly evaluate whether the evidence was sufficient
to prove all elements of the crimes in question, accepting as true all evidence
and reasonable inferences that support the verdict. Lyons, 833 A.2d at 258
(addressing defendant’s claim that verdict was against the weight of the
evidence as a challenge to the sufficiency of the evidence where defendant’s
argument was that there was insufficient evidence to prove the elements of
the offense); Commonwealth v. Frederick, 475 A.2d 754, 760-61 & n.3
(Pa. Super. 1984) (same).
Appellant’s second issue merits no relief. The aggravated assault
offense of which Appellant was convicted requires that the Commonwealth
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prove that Victim was an officer or employee of a correctional institution and
that Appellant attempted “by physical menace” to put her “in fear of imminent
serious bodily injury” while she was while in the performance of her duties.
18 Pa.C.S. § 2702(a)(6), (c)(9). The only elements that Appellant contends
that the Commonwealth failed to prove are that his actions constituted
physical menace and that he attempted to put Victim in fear of imminent
serious bodily injury. The evidence is sufficient to prove these elements where
the Commonwealth shows that the defendant placed the victim in fear of
imminent serious bodily injury through the use of menacing or frightening
activity. Commonwealth v. Repko, 817 A.2d 549, 554 (Pa. Super. 2003),
overruled in part on other issue, Commonwealth v. Matthews, 870 A.2d
924 (Pa. Super. 2005) (en banc); see also Commonwealth v. Reynolds,
835 A.2d 720, 726-27 (Pa. Super. 2003) (interpreting identical elements in
simple assault statute).
Here, the evidence at trial was sufficient to show that Appellant engaged
in menacing and frightening activity and that this menacing and frightening
activity put Victim in fear of imminent serious bodily injury. Victim testified
that Appellant overpowered her to the point that she could not escape and
that he covered her mouth when she screamed and told her not to call for
help. N.T. Trial at 19-20. Such an attack is menacing and frightening conduct
that would reasonably cause a person to fear for her life, particularly when
the attacker is a convicted criminal in a prison setting. In addition, Victim
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testified that she was terrified and was in fear of suffering serious bodily
injury. Id. at 21. The fact that Victim was not in fact seriously injured does
not negate the elements of the aggravated assault offense of which Appellant
was convicted. The section of the Crimes Code under which Appellant was
charged and convicted of aggravated assault, Section 2702(6), requires only
proof of an attempt to put the victim in fear of imminent serious bodily, not
proof that the defendant injured the victim. 18 Pa.C.S. § 2702(a)(6). Indeed,
the elements of physical menace and attempting to put the victim in fear of
imminent serious bodily do not require proof that the defendant had the ability
to seriously injure the victim or that the victim was in actual danger.
Commonwealth v. Gouse, 429 A.2d 1129, 1131 (Pa. Super. 1981).
In his third issue, Appellant argues that the evidence was insufficient to
prove the elements of unlawful restraint because there was no evidence that
Victim was in danger of serious bodily injury. The crime of unlawful restraint
requires proof of a restraint more serious than the offense of false
imprisonment, of which Appellant was also convicted, which requires proof
only that the defendant knowingly restrained the victim unlawfully so as to
interfere substantially with the victim’s liberty. 18 Pa.C.S. § 2902 Jt. St. Govt.
Comm. Comment; Commonwealth v. Prince, 719 A.2d 1086, 1087-88 (Pa.
Super. 1998); 18 Pa.C.S. § 2903(a). To prove the unlawful restraint offense
of which Appellant was convicted, the Commonwealth must prove both that
the defendant knowingly restrained the victim unlawfully and that defendant’s
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conduct exposed the victim to an actual risk of serious bodily injury. 18
Pa.C.S. § 2902(a)(1); Commonwealth v. Schilling, 431 A.2d 1088, 1091-
92 (Pa. Super. 1981). Absent proof of an actual danger of serious bodily
injury, the evidence is insufficient to prove unlawful restraint under the section
of the statute at issue here. Schilling, 431 A.2d at 1092 (threatening the
victim with an unloaded pellet gun in perpetrating a sexual assault was
insufficient to support unlawful restraint conviction under Section 2902(a)(1)
because the victim was not exposed to actual risk of serious bodily injury);
compare Commonwealth v. Melvin, 572 A.2d 773, 774-75 (Pa. Super.
1990) (upholding unlawful restraint conviction under Section 2902(a)(1)
because forcing a victim at gunpoint to drive in search of a person who had
shot at the defendant earlier and whom the defendant wanted to kill exposed
the victim to actual risk of serious bodily injury, even though there was no
proof that the defendant’s gun was loaded).
We agree that the Commonwealth did not prove the element of actual
risk of serious bodily injury in this case. While the evidence at trial was
sufficient to prove that Appellant’s conduct created a reasonable fear of
serious bodily injury, there was no evidence that Appellant’s restraint of Victim
exposed her to an actual danger of serious bodily injury. There was ample
evidence that Appellant restrained Victim, but no evidence that Appellant hit
her, tried to choke her or impede her ability to breathe, threw her against any
object, or put her in a dangerous location. Nor was there any evidence of his
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and Victim’s physical sizes and strength from which an actual danger of
serious bodily injury could be inferred. This case therefore stands in contrast
to those cases where this Court has held that a restraint not involving weapons
exposed the victim to an actual risk of serious bodily injury sufficient to
support a conviction under the unlawful restraint statute at issue here.
Commonwealth v. Shaffer, 763 A.2d 411, 413-14 (Pa. Super. 2000)
(defendant handcuffed the victim, put her in the trunk of a car, and drove the
car with her in the trunk); Commonwealth v. McBall, 463 A.2d 472, 474
(Pa. Super. 1983) (defendant grabbed the victim by the neck, pushed and
shoved her, and repeatedly threatened to kill her and evidence showed that
defendant weighed twice as much as the victim and was a weightlifter);
Commonwealth v. Harbold, No. 878 MDA 2020, slip op. at 3, 10-11 (Pa.
Super. July 12, 2021) (defendant choked the victim and threatened to kill
her); Commonwealth v. Gonzalez, No. 1898 EDA 2018, slip op. at 5-6 (Pa.
Super. May 31, 2019) (defendant hit the victim in the face and threw her).
Indeed, neither the trial court nor the Commonwealth points to any evidence
that showed an actual risk of serious bodily injury to Victim. Rather, they
argue only that the evidence showed that the attack was frightening, Trial
Court Opinion at 9 & n.3; Appellee’s Brief at 1-2, 10, which supports the
aggravated assault verdict but does not show the actual risk of serious bodily
injury required to prove the unlawful restraint charge at issue here.
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Because the evidence was sufficient to support Appellant’s attempted
rape and aggravated assault convictions and the trial court did not abuse its
discretion in concluding that those verdicts were not against the weight of the
evidence, we affirm those convictions. Because the evidence was insufficient
to support Appellant’s unlawful restraint conviction, we must vacate that
conviction. The vacating of the unlawful restraint conviction disturbs the trial
court’s sentencing scheme, as the unlawful restraint sentence was consecutive
to the attempted rape and aggravated assault sentences and the court did not
impose a sentence for Appellant’s false arrest conviction on the ground that it
merged with the unlawful restraint conviction that we now have vacated. We
therefore vacate Appellant’s judgment of sentence and remand this case for
resentencing.
Convictions for attempted rape and aggravated assault affirmed.
Unlawful restraint conviction vacated. Judgment of sentence vacated, and
case remanded for resentencing. Jurisdiction relinquished.
Date:10/12/2023
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