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COMMONWEALTH v. JONES (12/11/74)

decided: December 11, 1974.

COMMONWEALTH
v.
JONES, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1973, No. 1189, in case of Commonwealth of Pennsylvania v. Wheeler Jones.

COUNSEL

Nolan N. Atkinson, Jr., and Zack, Myers and Atkinson, for appellant.

Mark Sendrow and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 231 Pa. Super. Page 302]

Appellant argues that there was insufficient evidence of aggravated assault and related charges because the Commonwealth did not prove the intent to commit the assault, but rather that intent was vitiated by appellant's showing of self-defense.

The appellant was tried on January 22, and 23, 1974, before Judge Charles Lord, Court of Common Pleas of Philadelphia County, sitting without a jury. The following facts were credited by him after hearing the case. At about 6:00 p.m. on June 21, 1973, appellant went to the home of his common law wife's son to pick up some personal belongings. A fight ensued between appellant and the son, who was aided by his cousin. Later in the evening at about 10:30, Ms. Zamickich, appellant's common law wife, who had remained at her son's home, called appellant at his residence to warn him that her son, the son's cousin, a niece of Ms. Zamickich, and a boyfriend of the niece were about to drive to appellant's residence. She requested that appellant call the police; he would not,

[ 231 Pa. Super. Page 303]

    but told her to do so. Ms. Zamickich called the police who subsequently responded to the report of the incipient fight.

Alerted by the phone call, the appellant dressed, armed himself with a kitchen knife, and left the premises to await the arrival of the carload of hostile youths. A flare, some stones, and a piece of a bicycle were thrown at the house. Appellant left the porch to confront the youths, one of whom kicked the appellant. He then struck Donald Farmer, the niece's boyfriend, who pushed appellant to the ground. As appellant jumped from the ground with the knife in hand, he slashed at and cut Farmer, who sustained an injury that required a week's hospitalization. The police arrived and apprehended the appellant who was brandishing the knife while chasing Farmer.

The court found appellant guilty of aggravated assault. Motions in arrest of judgment and for a new trial were denied on March 13, 1974. Appellant was sentenced to one year's probation with sentence suspended on the related charges. This appeal follows the denial of appellant's motions.

As in every appeal from a criminal conviction that challenges the sufficiency of the evidence, the evidence must be read in the light most favorable to the Commonwealth and the Commonwealth must be given the benefit of all reasonable inferences arising therefrom. Commonwealth v. Johnston, 438 Pa. 485, 263 A.2d 376 (1970); Commonwealth v. Ware, 453 Pa. 15, 307 A.2d 840 (1973). The instant case raises no serious issue of sufficiency unless the appellant has proved his claim ...


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