Com. v. Bishop, H., 1697 MDA 2022

On November 10, 2020, Howard Bishop, an inmate at SCI‑Smithfield, forcibly grabbed a female corrections counselor in her office, fondled her breasts and crotch, tried to pull down her pants, covered her mouth, and she pressed the duress alarm.
Corrections officers entered, observed Bishop climbing off the victim with his penis exposed (per two officers), and handcuffed him; an officer reported Bishop said he was “trying to get some pussy.”
A jury convicted Bishop of attempted rape, aggravated assault (physical menace to a corrections employee), unlawful restraint, indecent assault, false imprisonment, and simple assault; the trial court imposed consecutive terms totaling 17.5 to 35 years and merged several counts.
Bishop filed post‑sentence motions arguing verdicts were against the weight (and insufficient) of the evidence; the trial court denied relief and Bishop appealed.
The Superior Court affirmed the attempted rape and aggravated assault convictions, vacated the unlawful restraint conviction for insufficient evidence of an actual risk of serious bodily injury, vacated the judgment of sentence, and remanded for resentencing.

Issue	Plaintiff's Argument (Commonwealth)	Defendant's Argument (Bishop)	Held
Whether attempted rape verdict was against the weight of the evidence	Victim and officers' testimony proved intent and substantial acts toward rape	Bishop argued lack of penetration, victim’s positioning made penetration impossible, and evidence of intent/gratification was speculative	Affirmed — testimony of fondling, attempt to pull down pants, exposed penis, and statement about "trying to get some pussy" supported attempt and intent
Whether aggravated assault (physical menace to corrections employee) was against the weight of the evidence	Menacing conduct and victim’s reasonable fear of imminent serious bodily injury satisfied statute	Bishop argued no serious injury occurred and fear was an overreaction	Affirmed — menacing conduct (overpowering, covering mouth, preventing help) reasonably placed victim in fear of imminent serious bodily injury
Whether unlawful restraint conviction was against the weight/insufficient	Commonwealth argued fear/menacing conduct supported restraint conviction	Bishop argued no evidence of actual risk of serious bodily injury (no choke, no weapons, unlocked door, officers nearby)	Reversed (vacated) — insufficient evidence that the restraint exposed victim to an actual risk of serious bodily injury
Remedy / Sentencing effect	—	—	Vacated judgment of sentence and remanded for resentencing because unlawful restraint sentence affected the sentencing structure

Commonwealth v. Clemons, 200 A.3d 441 (Pa. 2019) (standard of appellate review for weight‑of‑the‑evidence claims)
Commonwealth v. Antidormi, 84 A.3d 736 (Pa. Super. 2014) (trial court’s weight‑of‑the‑evidence determination given great deference)
Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013) (trial judge’s observations entitled to gravest consideration in weight inquiries)
Commonwealth v. Lyons, 833 A.2d 245 (Pa. Super. 2003) (distinction between sufficiency and weight challenges)
Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000) (defining sufficiency vs weight claims)
Commonwealth v. Faison, 297 A.3d 810 (Pa. Super. 2023) (attempted rape can be proven by fondling, removal of clothing, and admissions)
Commonwealth v. Schilling, 431 A.2d 1088 (Pa. Super. 1981) (unlawful restraint under § 2902(a)(1) requires exposure to an actual risk of serious bodily injury)
Commonwealth v. Melvin, 572 A.2d 773 (Pa. Super. 1990) (unlawful restraint sustained where victim was exposed to actual risk of serious bodily injury even without proof gun was loaded)
Commonwealth v. Shaffer, 763 A.2d 411 (Pa. Super. 2000) (examples of restraints that created actual risk: handcuffing and confinement in trunk)