Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1973, Nos. 728, 729, 730, and 732, in case of Commonwealth of Pennsylvania v. Gregory Stancil.
Stewart A. Bernstein, and Kanter, Bernstein & Miller, for appellant.
Frank Froncek, 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 Watkins, P. J.
[ 233 Pa. Super. Page 16]
This is an appeal from the judgment of sentence of the Court of Common Pleas, Philadelphia County, Criminal Division, by Gregory Stancil, the defendant-appellant, after conviction of aggravated assault, burglary and criminal conspiracy, in a non-jury trial.
[ 233 Pa. Super. Page 17]
The complaining witness, a seventy-six (76) year old man was aroused by noises outside his apartment. When he descended the steps to investigate, he was pushed back up the stairs into his apartment by two unidentified males that later proved to be the appellant and his co-defendant, Matthew Bynum, whose appeal after conviction was affirmed, per curiam, on April 10, 1975, 232 Pa. Superior Ct. 739 (1975). The complainant was later found semi-conscious after being beaten and stomped. A radio, a fan and a television set were taken from the apartment.
A police officer saw the appellant, who was bleeding heavily from the right hand, in the street. When he did not answer the officer's questions as to the cause of the injury, the officer followed a trail of fresh blood to the entrance door of the apartment. He found the co-defendant, Bynum, trying to close the door with fresh blood still on the door handle. Inside the door were the fan and radio from the apartment which was located on the second floor. Upstairs in the apartment was the semiconscious complaining witness as well as an identification bracelet that the appellant positively identified as his own.
At trial appellant and his co-defendant testified that they were elsewhere at the time that the crime was committed and the appellant testified that he had helped the complaining witness move in a month before the incident and that he had lost his identification bracelet at that time. The witness was unable to identify his assailants.
Appellant contends the alleged assault on the complaining witness does not rise to an aggravated assault but was, at most, simple assault. The new Crimes Code at 18 Pa. C.S. § 2702 (a) (1) and (a) (4) defines aggravated assault as:
"(1) attempts to cause serious bodily injury to another, or causes such injury ...