Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1972, No. 1880, in case of Commonwealth of Pennsylvania v. D. L. Stots.
John W. Packel, Assistant Defender, with him Daniel V. Walls and Leonard Sosnov, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.
Maxine J. Stotland, Assistant District Attorney, with her David Richman and James T. Ranney, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Cercone, J.
[ 227 Pa. Super. Page 280]
This appeal arises from a conviction of the appellant by the trial court sitting without a jury, of "willfully and wantonly pointing [or discharging] a firearm." Act of June 24, 1939, P. L. 872, § 716, 18 P.S. § 4716. The appellant argues that the trial court erred in finding him guilty under the indictment since it charged him with "attempt with intent to kill," and not with "willfully and wantonly pointing [or discharging] a pistol." Thus the appellant argues that the crime for which he was convicted is not a "lesser included offense." Specifically, the appellant argues, an attempt
[ 227 Pa. Super. Page 281]
with intent to kill can occur in any number of ways not involving the use of a firearm, so that any lesser crime involving the use of a firearm must be separately charged because it is not " necessarily included "*fn1 in the crime of attempt with intent to kill. We disagree.
The form indictment involved in the instant appeal reads as follows: "The Philadelphia County Grand Jury, by this indictment, presents: That on or about October 4, 1972, in Philadelphia County, D. L. Stots unlawfully and feloniously did attempt to shoot, or, by drawing a trigger or in any other manner, attempt to discharge a kind of loaded arm at one Floyd F. Mason, Jr. with intent to kill and murder the said Floyd F. Mason, Jr., all of which is against the peace and dignity of the Commonwealth of Pennsylvania." All the other allegations on the form, relevant to committing the crime of attempt with intent to kill by methods other than the use of a firearm, had been deleted. Thus, by the terms of the indictment, the Commonwealth was barred from showing the use of any other instrumentality to commit the crime, since the proof offered at trial must conform to the allegations made in the indictment.*fn2 Thus, the appellant was clearly on notice that part of the Commonwealth's case would require showing that the appellant pointed a firearm at the complainant on the night in question.*fn3 The appellant
[ 227 Pa. Super. Page 282]
argues in the instant case that since an attempt with intent to kill may be committed by a "baseball bat," for example, it is possible to commit the greater offense without committing the lesser. This is true as an abstraction, of course. However, under the instant indictment, the appellant could have defended by showing a baseball bat, not a pistol, was used in the assault.
In Commonwealth v. Nace, 222 Pa. Superior Ct. 329 (1972), this court stated, through Judge Packel, that the operation of a motor vehicle without the knowledge or consent of the owner (joyriding) was a "lesser included offense" of larceny of a motor vehicle even though, in the abstract, there could be situations where the allegations made in the indictment, while sufficient for conviction of that greater larceny offense, would not be sufficient to allow conviction of the lesser "joyriding" offense. Id. at 332, n. 5. In Commonwealth v. Varner, 74 Pa. Superior Ct. 529 (1920), the appellant had been indicted for statutory rape. However, the indictment alleged that the appellant "with force and arms, in and upon the body of [the complainant], feloniously did make an assault, [the complainant], then and there being a woman-child under the age of sixteen years. . . ." The jury returned a verdict of guilty of assault and battery with intent to ravish. This court upheld the verdict on the grounds that assault and battery with intent to ravish was a lesser included offense of the charges made out by the indictment, despite the fact that a statutory rape may be committed without there being an assault and battery.
The instant case is even stronger than Varner in that parts of the indictment in Varner were subject to being stricken as surplusage. In the instant case, proof that a ...