J-S29037-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

HOWARD BISHOP 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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 

____________________________________________

* 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), 

respectively. 
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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 

2

1/2 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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