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HomeMy WebLinkAbout00-1899 CRIMINALCOMMONWEALTH DERRICK MCKINNEY IN RE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 00-1899 CRIMINAL TERM OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Bayley, J., January 24, 2002:-- On December 28, 2001, defendant was found guilty at a bench trial of a count of summary harassment in violation of the Crimes Code at 18 Pa.C.S. Section 2709(a)(1). He was sentenced on the same day to pay the costs of prosecution and undergo imprisonment in the Cumberland County Prison for ninety days, consecutive to any other sentence. Pursuant to Pa.R. Crim. P. 720(D), defendant filed a direct appeal to the Superior Court of Pennsylvania from the judgment of sentence. The evidence in a light most favorable to the Commonwealth, was as follows.~ On December 21, 1999, defendant was an inmate at the State Correctional Institution at Camp Hill. He was confined in a high security Special Management Unit. In the latter part of the morning, Correction Officers Tommy Guthrie and James Zihmer took defendant from his cell to appear before a Program Review Committee. When they arrived, defendant became agitated and would not participate in a review. He chose to leave, which was allowed, without a review being conducted. At approximately 11:20 Commonwealth v. Rochelle, 461 Pa. 340 (1975). 00-1899 CRIMINAL TERM a.m., Guthrie and Zihmer took defendant back to his cell. Defendant was handcuffed and restrained with a waist belt. When they arrived at the cell, Guthrie released the waist belt. Defendant swung around and struck Guthrie with his cuffed fists. The belt hit Guthrie on the side of his face, and shoulder. The officers struggled with defendant and pushed him into the cell. Defendant resisted violently. He struck both officers. He bit Guthrie above the knee. Together with Correction Officer Roger Reid, who responded to the melee, the officers got defendant on the floor, and he was restrained. Guthrie had abrasions on his chest, and his back was injured. The fingers of Zihmer's right hand were stoved. Defendant's face and nose were cut. Defendant told Guthrie and Zihmer that he was going to get them every time he was out of his cell. John Horner, who was defendant's counselor, talked to defendant later in the day. Defendant told Horner that he intentionally harassed the COs to make them angry, and produce a confrontation. He said he "thrives on this type of shit.": : Defendant testified that when COs Zihmer and Guthrie were taking him to the program review, he accused Zihmer of taking things out of his cell. He called Zihmer a coward. He had previous difficulties with Guthrie. Defendant acknowledged that he would not participate in a program review. As he was being taken back to his cell, he was rushed and punched in the head. When they arrived at the cell, Guthrie punched him, pushed him in the cell, and both officer assaulted him. He then fought to protect himself, but he was tackled and restrained. Defendant acknowledged that he told the officers that he would go through this again and again, but he testified that he did not mean it because he was hyped up. Three inmates testified that as defendant was being taken back to his cell, he was hit in the head. Guthrie and Zihmer then pushed defendant toward and into the cell, where they could hear a scuffle. Another inmate testified that after the incident he heard some officers say that they finally got defendant. Guthrie and Zihmer were among those officers. -2- 00-1899 CRIMINAL TERM Section 2709 of the Crimes Code, provides: (a) Harassment.--A person commits the crime of harassment when, with intent to harass, annoy or alarm another, the person: (1) strikes, shoves, kicks or otherwise subjects the other person to physical contact, or attempts or threatens to do the same; It is the province of the fact-finder to determine the weight to be given to each witness's testimony and to believe all, part, or none of the evidence. Commonwealth v. Tullius, 399 Pa. Super. 172 (1990). Depending on who was believed, either defendant harassed Officers Guthrie and Zihmer, or Officers Guthrie and Zihmer assaulted defendant. Without going into all of the nuances of the testimony of the witnesses, and recognizing that life in the Special Management Unit is no cup of tea for an inmate, or for the correction officers, we are satisfied beyond a reasonable doubt that defendant committed the crime of summary harassment on December 21, 1999. The verdict is supported by credible evidence. Therefore, the judgment of sentence was properly entered. (Date) Edgar B. Bayley, J. -3- 00-1899 CRIMINAL TERM Michelle Sibert, Esquire For the Commonwealth Derrick McKinney, DT-7715, Pro se SCI Camp Hill P.O. Box 200 Camp Hill, PA 17001-0200 Robert P. Kline, Esquire Stand-by Counsel :saa -4-