Commonwealth v. Alexander

¶1Dissenting Opinion by

¶2The question presented by this appeal is whether the evidence was sufficient to sustain appellant’s conviction for aggravated assault. The majority holds that it was, and finds that the statutory requirements of “serious bodily injury” and intentional or reckless action have been met. I disagree and respectfully dissent. In my view, the Commonwealth did not produce evidence sufficient to establish either the requisite intent or the occurrence of serious bodily injury. I reach this conclusion both from my examination of the trial record and from the legislature’s differentiation of assault crimes in the Pennsylvania Crimes Code, Act of Dec. 6, 1972, effective June 6, 1978, P.L. 1482, No. 334, 18 Pa.C.S. §101 et seq.

¶3The Crimes Code defines several assault offenses, three of which are relevant to this case: harassment, simple assault, and aggravated assault.1 A person is guilty of harassment if, “with intent to harass, annoy, or alarm another person: (1) he strikes, shoves, kicks, or otherwise subjects him to physical contact, or attempts or threatens to do the same . . .” 18 Pa. C.S. §2709. Harassment is a summary offense and therefore the maximum punishment is 90 days and $300 fine. 18 Pa. C.S. §§1101 and 1105. A person is guilty of simple assault if he “attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another....” (Emphasis added). 18 Pa. C.S. §2701 (a) (1). “[Bjodily injury” is defined as “impairment of physical condition or substantial pain.” 18 Pa. C.S. §2301. “Simple assault is a mis*117demeanor of the second degree unless committed in a fight or scuffle entered into by mutual consent, in which ease it is a misdemeanor of the third degree.” 18 Pa. C.S. §2701 (b). Therefore, if there is not such a fight or scuffle the maximum penalty is two years imprisonment and a $5,000 fine. 18 Pa. C.S. §§1101(4) and 1104(2). A person is guilty of aggravated assault if he “attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life. . . .” (Emphasis added). 18 Pa. C.S. §2702 (a) (1). “[S] erious bodily injury” is defined as “[bjodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” 18 Pa. C.S. §2301. Aggravated assault (as so defined) is a felony of the second degree and therefore the maximum punishment is 10 years imprisonment and a $25,000 fine. 18 Pa. C.S. §§1101(1) and 1103(2).

¶4The legislature has thus differentiated these assault crimes according to the seriousness of the harm done or attempted. See Pennsylvania Bar Association, Comments Relating to the Provisions of the Crimes Code 13 (1974). If an individual does no more than subject another to “physical contact,” and neither attempts to cause nor causes any injury, he would seemingly be guilty of harassment. See Belsky and Goldblatt, Analysis and Commentary to the Pennsylvania Crimes Code 55 (1974). For simple assault and aggravated assault the determinative words are “bodily injury” and “serious bodily injury.” Further, the importance the legislature attached to the type of contact and injury involved is emphasized by the great difference in the punishments provided for the three crimes.2

¶5*118Since appellant was convicted of aggravated assault, the question is whether the evidence was sufficient to show that he caused or attempted to cause “serious bodily injury”, i.e., an injury either creating “a substantial risk of death” or causing “permanent disfigurement or protracted loss or impairment of the function” of Rosenzweig’s nose.

¶6Appellant’s single punch broke Rosenzweig’s nose' and blackened his eyes. The treatment of these injuries required Rosenzweig to spend three hours in the hospital. It is clear from this relatively quick release that he was not subjected to a substantial risk of death. Moreover, there was no evidence that Rosenzweig received any permanent disfigurement or protracted loss or impairment of the function of his nose. While a broken nose may entail such consequences, this court ought not to speculate whether in fact that happened here. Commonwealth v. Simpson, 436 Pa. 459, 260 A.2d 751 (1970) (conviction based wholly on suspicion or conjecture cannot stand); Commonwealth v. Feinberg, 211 Pa. Superior Ct. 100, 113, 234 A.2d 913, 919 (1967), aff’d, 433 Pa. 558, 253 A.2d 636 (1969) (“[G]uilt must be proved and not be conjectural, and cannot rest solely on suspicion or surmise.”). If evidence was available to prove permanent or protracted harm, the Commonwealth should have produced it. As the record reads now, there is not sufficient evidence to establish that appellant “cause [d] serious bodily injury.”

¶7The issue therefore becomes whether appellant “attempt [ed] to cause serious bodily injury.” An individual commits an attempt when he intends to commit a specific crime and does an act that constitutes a substantial step toward the commission of that crime. 18 Pa. C.S. §901. See generally, Commonwealth v. Crow, 303 Pa. 91, 98, *119154 A. 283, 285-86 (1931) ; Commonwealth v. Willard, 179 Pa. Superior Ct. 368, 371, 116 A.2d 751, 753 (1955). When appellant punched Rosenzweig, he committed the requisite act. In regard to intent, the Crimes Code provides: “A person acts intentionally with respect to a material element of an oifense when: (i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result. .. .” 18 Pa. C.S. §302 (b) (1) (i). Therefore, in order for appellant to have made the necessary attempt, he must have intended to cause “serious bodily injury.”

¶8Intent may be proved by direct evidence, or it may be inferred from evidence of the surrounding circumstances. Commonwealth v. Stoffan, 228 Pa. Superior Ct. 127, 149, 323 A.2d 318, 328 (1974), quoting Commonwealth v. Freeman, 225 Pa. Superior Ct. 396, 399, 313 A.2d 770, 772 (1973). There is no direct evidence that appellant intended to cause Rosenzweig serious bodily injury.3 Three witnesses, Rosenzweig, the taxi cab driver, and appellant, testified that only a single blow was struck, and that then appellant walked away. He did not threaten to kill or to cause serious bodily injury to Rosenzweig, nor did he use a weapon. The trial judge placed great emphasis on the fact that appellant hit Rosenzweig in the head. He felt that since serious bodily injury may result from a blow to the head, it could be inferred that appel*120lant intended to cause such injury. However, as already indicated, to support a finding of guilt, an inference “must be based on facts and conditions proved and cannot rest solely on suspicion or surmise.” Commonwealth v. Gregory, 183 Pa. Superior Ct. 53, 57, 127 A.2d 788, 789 (1956). It may be inferred from a punch to the head that the aggressor intended to cause “bodily injury,” but not, without more, that he intended to cause “serious bodily injury,” that is, permanent disfigurement, protracted impairment, or an injury creating a substantial risk of death. Serious bodily injury may result from any punch, and therefore to accept the inference made by the trial judge would be to elevate every simple assault to an aggravated assault with no reference to the “seriousness” of the act or the injury. That would be to contravene the legislative intent in separating the two crimes, and would leave to judicial whim whether a defendant was to be convicted of a misdemeanor with a maximum two year sentence or a felony with a maximum ten year sentence.

¶9For these reasons, I would not have allowed appellant’s conviction for aggravated assault to stand. However, the evidence that appellant broke Rosenzweig’s nose and blackened his eyes was, as appellant admits in his brief, sufficient to prove that he caused “bodily injury.” I would therefore have reversed the judgment of sentence, vacated the verdict of guilty of aggravated assault, and remanded with directions to enter a verdict of guilty of simple assault and to impose sentence thereon.

¶10Hoffman and Cercone, JJ., join in this opinion.