Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1972, No. 407, in case of Commonwealth of Pennsylvania v. Emanuel Brown.
George Gershenfeld, for appellant.
David Richman, 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 Spaeth, J. Watkins, P. J., dissents.
[ 232 Pa. Super. Page 27]
Appellant was convicted of attempting to kill Officer Boyle of the Philadelphia Police. He contends that the facts proved were insufficient to sustain a conviction for the statutory crime of "Attempt with Intent to Kill."*fn1 The facts have been stipulated to be as follows: "[A]ppellant jumped into a 1968 yellow and black Buick and drove down Broad Street. Officer McDermott reported the incident over the police radio. Officer John Boyle, walking east on Vine Street near Juniper Street, observed appellant driving north at a high rate of speed. When he stepped into the middle of the street to signal the automobile to stop, appellant increased his speed forcing Officer Boyle to dive to the pavement."
[ 232 Pa. Super. Page 28]
Appellant was tried before Judge Marshall sitting without a jury. The indictment on which he was found guilty is on a standard printed form used by the Philadelphia District Attorney's office. On the front of this form, under the heading "Charges", the following is printed, all in capital letters and in heavy black type: "Attempt With Intent to Kill and Murder." Beneath this statement of the charges is an empty space headed "Docket in Chronological Order." Here there is written the trial date, the names of the judge, counsel, stenographer, and clerk, various entries as to the trial (e.g., that a demurrer was overruled), the verdict, the fact that an oral motion for a new trial was denied, the sentence, and the amount of bail. At the bottom of these entries is the judge's signature. On the reverse side of the form there appears the formal presentment, signed by an assistant district attorney. At the top is a caption. There then follow three counts. These precisely reflect the language of the Act of June 24, 1939, cited supra note 1. The first count charges "attempt to cut or stab or wound"; the second count charges "attempt to shoot, or, by drawing a trigger or in any other manner, attempt to discharge a kind of loaded arm"; and the third count charges "attempt to drown, suffocate or strangle, or to administer a poison or other destructive thing." In the present case the second and third counts are crossed out, and the first count has been changed to charge as follows:*fn2 "First Count: That, on on [ sic ] about August 16, 1972, in Philadelphia County Emanuel David Brown unlawfully and feloniously did attempt to [cut or stab or] wound by running down with motor vehicle with intent to kill and murder the said John Boyle 4344."
[ 232 Pa. Super. Page 29]
The Commonwealth contends that this language was intended to be, and as a matter of law was, an indictment for attempted murder at common law.*fn3 However, the opinion of the trial judge, written after this appeal was filed, makes it plain that she thought she was trying a defendant indicted not for attempted murder at common law but for attempted murder as defined by the Act of June 24, 1939, supra, § 711, 18 P.S. § 4711. Thus the judge in her opinion expressly states that she "convicted the defendant of Attempt With Intent to Kill . . . , a violation of the Act of June 24, 1939. . . ." She then proceeds to quote the Act and to cite and discuss Commonwealth v. Clopton, 447 Pa. 1, 289 A.2d 455 (1972), which held*fn4 that attempts to kill by means of any of the instrumentalities enumerated in the Act of June 24, 1939, supra, were not punishable as attempted murder at common law. As the trial judge observed, Clopton established two mutually exclusive types of attempted murder: attempted murder by one of the means enumerated in the Act of June 24, 1939, which can only be punished under the Act, and attempted murder by other means, which can only be punished at common law. Having completed this analysis, the trial judge concluded as follows:
"Following the Pennsylvania Supreme Court's reasoning in the above case [ Clopton ], this Court finds that it erroneously convicted the defendant under § 4711, a
[ 232 Pa. Super. Page 30]
statute under which the defendant could not have been indicted based on the facts of the instant case. Since that statute refers only to attempts to kill by guns, knives and poisons, this Court cannot properly convict the defendant since he did not use any of those weapons in his attempt to kill the ...