Commonwealth v. Dohner

¶1dissenting:

¶2The majority finds that the evidence was insufficient to support a conviction for aggravated assault. I respectfully disagree. Accepting the Commonwealth’s evidence and all reasonable inferences arising therefrom, as the majority correctly holds we must, I believe the evidence was sufficient.

¶3The victim, one McConnell, testified that while he was restraining co-defendant Gainer, he observed appellant Dohner, who had left the immediate area, approaching in back of him.

¶4At that time the victim was dealt a blow to his right cheek area and heard bone shattering (N.T. pp. 51-52). McConnell further testified that after he observed Dohner moving behind him and to his right, he was immediately struck from behind or from the side on the right side of his face. (N.T. p. 77). The victim also stated that he saw Gainer approaching but that he was still across the road when the initial blow was struck. (N.T. p. 53). Dohner was the only one around to inflict the blow (N.T. p. 81). McConnell did not know what was used to strike him. (N.T. p. 80). Another Commonwealth witness, Hess, testified that appellant later told her that he had hit the victim at least three times (N.T. p. 12). Mr. McConnell testified that the initial blow was the only one inflicted to his right cheek. (N.T. p. 52). Accordingly, the jury could have found beyond a reasonable doubt that appellant was responsible for the injury to the right part of the victim’s face.

¶5*359The victim testified as to his injuries. His right cheek was completely caved in. The blow fractured the orbit of the right eye, that is the bony structure around the eye; part of which was still wired together on the day of trial. The fracture caused the eye to drop down so that the surgeon had to return it to its socket. (N.T. p. 53). The Commonwealth also had a letter from an examining physician, read into the record. The doctor confirmed the above injuries and stated that the damage was “fairly severe”. He noted “that it takes a significant blow to cause a fracture and dislocation of this solid body of bone which, in effect, is a buttress to protect injury to both the eye and temporal skull”. The victim underwent reconstructive surgery requiring general anesthesia. (N.T. pp. 87-89).

¶6I believe the majority incorrectly places this case in the category covered by Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887 (1978). Alexanderheld that a mere blow to the head, resulting in a fractured nose without more was insufficient to demonstrate an intent to inflict serious bodily injury; the victim there was treated in an emergency room and released. The current appeal differs greatly in that both, a serious injury was inflicted and an intent to inflict such could be reasonably inferred.

¶7I believe this case is controlled by such cases as Commonwealth v. Davis, 267 Pa.Superior Ct. 370, 406 A.2d 1087 (1979) and Commonwealth v. Kibe, 258 Pa.Superior Ct. 353, 392 A.2d 831 (1978).1 In Davis, the defendant punched a woman in the face causing her to black out. She suffered multiple fractures of her lower jaw. She spent four days in the hospital and six weeks with her jaw wired shut. This court held that “a jury could find beyond a reasonable doubt that serious bodily injury occurred, and that appellant either intended or acted recklessly so as to manifest an extreme indifference to the value of human life.” 267 Pa.Superior *360Ct. at 375, 406 A.2d 1087. Alexanderwas distinguished; there the prosecution conceded that no serious injury occurred; and the Commonwealth failed to show that the defendant’s behavior demonstrated an extreme indifference to life.

¶8In Kibe, a woman was approached at a late hour from the rear, by a man, without a warning. Fearing a rape the woman refused to cooperate with the man who then struck her in the nose, fracturing it. This court affirmed the conviction of aggravated assault, finding sufficient additional circumstances distinguishing it from Alexander.

¶9Alexanderalso requires that factors other than the degree of injury be considered when determining the intent of the assailant. “Thus any evidence of [a defendant’s] intent must be gleaned from the other circumstances . . . . ” 477 Pa. at 194, 383 A.2d 887. Here, appellant was attacked from the rear or from the side but beyond his field of vision. Alexander confronted his victim head on. Appellant’s involvement in the disturbance created a two against one situation in favor of appellant and his co-defendant.2 One of the circumstances listed in Alexanderwas the disproportionate size between victim and aggressor. I “conclude that a jury could find beyond a reasonable doubt that serious bodily injury occurred, and that appellant either intended that result or acted recklessly so as to manifest an extreme indifference to the value of human life.” Davis, 267 Pa.Superior Ct. at 374, 406 A.2d 1087.

¶10I would affirm appellant’s conviction for aggravated assault.3