J-S39023-17

2017 PA Super 239

* Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

JAMES LAMONT DOMEK

Appellant No. 1529 WDA 2016

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 BY BOWES, J.: FILED JULY 21, 2017

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 
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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Commonwealth v. Domek, 108 A.3d 126 (Pa.Super. 2014) (unpublished 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 
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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. 
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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 to return a guilty verdict 

upon a finding that Appellant acted recklessly? 

 

Appellant’s brief at 3. 

When reviewing a court’s denial of a PCRA petition, our review is 

limited to the evidence of record and the factual findings of the PCRA court. 

Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa.Super. 2014) (en banc). 

This Court will afford “great deference to the factual findings of the PCRA 

court and will not disturb those findings unless they have no support in the 

record.” Id. When a PCRA court’s ruling is supported by the evidence of 

record and is free of legal error, we will not disturb its decision. Id. 

However, we review the court’s legal conclusions de novo. Commonwealth 

v. Williams, 141 A.3d 440, 452 (Pa. 2016). 

Appellant challenges trial counsel’s stewardship in failing to object to 

an inaccurate jury charge. In analyzing a claim of ineffective assistance of 

counsel, “we begin with the presumption [that] counsel is effective.” 

Commonwealth v. Cousar, 154 A.3d 287, 296 (Pa. 2017) (citation 

omitted). In order to succeed on such a claim, an appellant must establish, 

by a preponderance of the evidence: 

(1) the underlying claim has arguable merit; (2) no reasonable 

basis existed for counsel’s actions or failure to act; and (3) 
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appellant suffered prejudice as a result of counsel’s error, with 

prejudice measured by whether there is a reasonable probability 

that the result of the proceeding would have been different. 

Id. at 296-297. 

Appellant argues that trial counsel rendered ineffective assistance of 

counsel when she failed to object to the jury instruction for aggravated 

assault under 18 Pa.C.S. § 2702(a)(3), which instructed the jury that it 

could find Appellant guilty of aggravated assault if it believed he recklessly 

caused bodily injury to CO Bonenberger. The instruction in question reads, 

in pertinent part, as follows:

[Appellant] has been charged with aggravated assault 

causing bodily injury. If you find [Appellant] guilty of this 

offense, you must find that the following elements have been 

proven beyond a reasonable doubt[.] 

. . . .

And third, that [Appellant] acted intentionally, 

knowingly, or recklessly under circumstances manifesting 

extreme indifference to the value of human life[.]

. . . .

A person acts recklessly when he consciously disregards a 

substantial and unjustifiable risk that bodily injury will result 

from his conduct. The risk must be of such a nature and degree 

that when considering the nature and intent of [Appellant’s] 

conduct and circumstances known to him, its disregard involved 

a gross deviation from the standard of care that a reasonable 

person would observe in that situation. It is shown by the kind 

of reckless conduct which a life threatening injury is certain to 

occur. 
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N.T. Trial, 7/16/13, at 78-80 (emphasis added). Appellant was charged with 

aggravated assault under 18 Pa.C.S. § 2702(a)(3). That section reads:

(a) Offense defined.--A person is guilty of aggravated assault if 

he: 

. . . . 

(3) attempts to cause or intentionally or knowingly causes 

bodily injury to any of the officers, agents, employees or 

other persons enumerated in subsection (c), in the 

performance of duty[.]

18 Pa.C.S. § 2702(a)(3) (emphasis added). Subsection (c) includes 

correctional officers. 18 Pa.C.S. § 2702(c). As can be seen from an 

examination of the above-quoted statutory language, there is no question, 

and the Commonwealth does not dispute, that the jury charge should not 

have included recklessness as a sufficient mens rea. 

Appellant contends that there could be no reasonable basis for trial 

counsel’s failure to object to the jury instruction since there was no benefit 

in permitting the jury to convict him under a less onerous standard of 

culpability. Further, he argues that he was prejudiced by this failure in that 

the evidence showed that CO Bonenberger was injured only accidentally 

during the skirmish. Appellant highlights that the jury acquitted him of both 

counts of assault by a prisoner under 18 Pa.C.S. § 2703, including one count 

for injuries caused to CO Bonenberger, which required the jury to find that 
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“it was the intended conscious goal or purpose to cause serious bodily 

injury.”1 Appellant’s brief at 13; see 18 Pa.C.S. § 2703(a). Appellant 

maintains that, since the jury acquitted him of an offense that required it to 

find he intentionally injured CO Bonenberger, it must have likewise 

determined that he did not act intentionally when it found him guilty of the 

aggravated assault for the same injury. He concludes that, if the jury was 

provided with an accurate jury instruction, then it would have similarly 

acquitted him of aggravated assault. 

Our High Court has previously clarified the proper analytical 

considerations when faced with a claim that counsel’s ineffectiveness 

prejudiced a defendant. In Commonwealth v. Spotz, 84 A.3d 294, 315 

(Pa. 2014), the Supreme Court delineated an appellant’s burden to establish 

prejudice. It observed,

____________________________________________

1 Section 2703 enumerates the offense of assault by prisoner. It reads, in 

relevant part: 

(a) Offenses defined.--A person who is confined in or committed 

to any local or county detention facility, jail or prison or any 

State penal or correctional institution or other State penal or 

correctional facility located in this Commonwealth is guilty of 

a felony of the second degree if he, while so confined or 

committed or while undergoing transportation to or from such 

an institution or facility in or to which he was confined or 

committed intentionally or knowingly, commits an assault 

upon another with a deadly weapon or instrument, or by any 

means or force likely to produce serious bodily injury. 

18 Pa.C.S. § 2703(a). 
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A defendant raising a claim of ineffective assistance of counsel is 

required to show actual prejudice; that is, that counsel’s 

ineffectiveness was of such magnitude that it ‘could have 

reasonably had an adverse effect on the outcome of the 

proceedings.’ This standard is different from the harmless error 

analysis that is typically applied when determining whether the 

trial court erred in taking or failing to take a certain action. The 

harmless error standard . . . states that “whenever there is a 

‘reasonable probability’ that an error ‘might have contributed to 

the conviction,’ the error is not harmless.” This standard, which 

places the burden on the Commonwealth to show that the error 

did not contribute to the verdict beyond a reasonable doubt, is a 

lesser standard than the [Strickland/Pierce] prejudice 

standard, which requires the defendant to show that counsel’s 

conduct had an actual adverse effect on the outcome of the 

proceedings. This distinction appropriately arises from the 

difference between a direct attack on error occurring at trial and 

a collateral attack on the stewardship of counsel. In a collateral 

attack, we first presume that counsel is effective, and that not 

every error by counsel can or will result in a constitutional 

violation of a defendant’s Sixth Amendment right to counsel. 

Id. (citations and internal brackets omitted); See Strickland v. 

Washington, 466 U.S. 668 (1984), Commonwealth v. Pierce, 527 A.2d 

973 (Pa. 1987). In order to determine whether a defendant was “actually 

prejudiced,” the Supreme Court has weighed the gravity of the error 

“against the overwhelming strength of the evidence[.]” Spotz, supra at 

317; Commonwealth v. Busanet, 54 A.3d 35, 43-44 (Pa. 2012)

(considering the “overwhelming evidence of guilt” in finding the defendant 

was not prejudiced by the introduction of evidence of a prior bad act). 

In denying Appellant’s petition, the PCRA court found that Appellant 

could not establish that he was prejudiced by trial counsel’s failure to object 

to the erroneous jury instruction. In so finding, it observed that this Court 
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previously ruled that the evidence was sufficient for the jury to determine 

that Appellant “clearly . . . intended to cause bodily injury to the officers, 

including Bonenberger, which his combative behavior.” Trial Court Opinion, 

2/6/17, at 5; Domek, supra at *10. Essentially, the PCRA court, without 

stating so, invoked the law of the case doctrine to support its decision. See 

Commonwealth v. Gacobano, 65 A.3d 416, 419 (Pa.Super. 2013) (noting 

“[t]he law of the case doctrine refers to a family of rules which embody the 

concept that a court involved in the later phases of a litigated matter should 

not reopen questions decided by another judge of that same court of by a 

higher court in the earlier phases of the matter[.]”). 

We observe that this Court’s previous ruling, that the evidence 

proffered by the Commonwealth was sufficient to support Appellant’s 

conviction, does not constitute the law of the case for our present purposes. 

On direct appeal, our standard of review required us to view the evidence in 

the light most favorable to the Commonwealth as verdict winner. Domek, 

supra at *6. We are not guided by that principle herein, since our 

assessment is centered upon considering the strength of the evidence 

presented against the prejudice caused by counsel’s ineffectiveness. Spotz, 

supra. As we are reviewing the instant issue under a different 

jurisprudential framework, we are not bound by our prior holding. 

Instantly, the inclusion of an erroneous mens rea reducing the level of 

culpability required to find Appellant guilty of aggravated assault was a 
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critical mistake that “could have reasonably had an adverse impact on the 

outcome of the proceedings.” Spotz, supra at 315. The extent of this 

mistake is highlighted when we consider that the jury’s verdict could very 

well have been premised upon a finding that Appellant recklessly caused CO 

Bonenberger’s injuries since the jury acquitted Appellant of an offense that 

required it to find that he intentionally or knowingly harmed her. 

Moreover, upon review of the certified record, we cannot conclude that 

the evidence tending to show that Appellant intentionally or knowingly 

injured CO Bonenberger was so overwhelming as to overcome the prejudice 

caused by the erroneous jury instruction.2 The testimony offered by the 

Commonwealth does not clearly support the conclusion that Appellant acted 

intentionally or knowingly. Rather, it tends to show that Appellant merely fell 

backwards onto CO Bonenberger while he was being restrained by two other 

officers. See N.T. Trial, 7/15/13, at 107-114, 122. Indeed, CO 

Bonenberger herself testified as to the mechanism of her injury, stating, 

“[a]ctually, we went all crashing down. I had three men fall on top of me.” 

Id. at 122. 

____________________________________________

2 Despite efforts by this Court to obtain the video recording of the incident in 

question, that exhibit was not made part of the certified record, and, 

according to this Court’s prothonotary, was no longer available as a 

supplement to the record under Pa.R.A.P. 1926. 
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Based on the record before us, we cannot conclude that the evidence 

of Appellant’s guilt was so overwhelming that the outcome of the trial would 

not have been different if trial counsel had objected to the erroneous jury 

charge. In light of the nature of legal error in question, and the verdict 

rendered herein, we find that Appellant has established that trial counsel’s 

ineffectiveness had an adverse impact on the outcome of his trial. 

Accordingly, we reverse the order of the PCRA court. As the particulars of 

this case raise a question of law, we do not need to remand this matter to 

the PCRA court for an evidentiary hearing. See Commonwealth v. Kyle, 

874 A.2d 12, 23 (Pa. 2005) (reversing Superior Court order to remand to 

PCRA court for further evidentiary hearing since, regardless of facts found on 

remand, issue raised a question of law). Rather, we remand for a new trial. 

Order reversed. Case remanded. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/21/2017