Appeals from judgment of sentence of Court of Common Pleas of Greene County, No. 156-C of 1974, in case of Commonwealth of Pennsylvania v. James K. Bartman and Michael A. Dikun.
George B. Stegenga, for appellant, James K. Bartman.
Charles C. Gentile, for appellant, Michael A. Dikun.
James A. Caldwell, Special Assistant District Attorney, and W. Bertram Waychoff, District Attorney, submitted a brief for Commonwealth, appellee.
Watkins, P. J., Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. (Jacobs, J., absent). Opinion by Hoffman, J. Van der Voort, J., joins in this opinion as to appellant-Dikun, and dissents from this opinion as to appellant-Bartman. Jacobs and Price, JJ., dissent. Concurring Opinion by Spaeth, J.
[ 240 Pa. Super. Page 497]
Appellants, James K. Bartman and Michael A. Dikun, contend that the lower court improperly instructed the jury that an unlawful arrest is not a defense to the crime of aggravated assault on a police officer.*fn1 Further, appellants contend that they are entitled to a new trial on the charge of recklessly endangering
[ 240 Pa. Super. Page 498]
another person*fn2 because the Commonwealth introduced evidence which contradicted assertions it made in a bill of particulars.*fn3
The charges stemmed from an altercation between appellants and several members of the State Police. Because appellants do not challenge the sufficiency of the evidence, a brief summary of the complicated and lengthy testimony will suffice. On May 8, 1974, appellants and a group of other youths were engaged in a volleyball game in Dry Tavern, Greene County, on a lot adjacent to the home of the parents of appellant-Dikun. At approximately 6:00 p.m., a neighbor, Richard Tekavec, arrived at his residence, and heard abusive language emanating from the area where the youths were playing volleyball. Because his wife was entertaining a Girl Scout Troop at the time, Tekavec went to the youths to ask them to refrain from using "obscene language." A scuffle ensued between Tekavec and three of the boys, and Tekavec returned to his home to telephone the State Police. Officer Francis Suppok responded to the call. When he arrived, Tekavec pointed out the three young men involved in the scuffle. Trooper Suppok asked them to accompany him to his police cruiser so that he could interview them concerning this incident. The testimony is unclear as to what exactly transpired after that, but several of the boys, along with several parents, did accompany Trooper Suppok to his car.
Trooper Suppok testified that he telephoned the Waynesburg Barracks in order to obtain assistance to make the arrests. There was only one officer on duty at the Waynesburg Barracks, however, as the other officers were playing a softball game against the Uniontown Barracks. The officer on duty telephoned the
[ 240 Pa. Super. Page 499]
Waynesburg Borough Police who drove to the ball park to inform the Waynesburg State Police officers that their assistance was needed in Dry Tavern. Nine officers arrived, none of whom were in uniform. It is undisputed that a confrontation ensued which lasted approximately fifteen minutes, and that two of the boys were injured seriously enough to require hospitalization. The Commonwealth's witnesses testified that they displayed badges and identified themselves as State Policemen before the altercation began. The defendants testified that they were unaware that these men were State Police officers and that they acted only in self-defense.
Six of the young men from the group were arrested and taken to the Waynesburg Barracks. All six were charged with disorderly conduct, simple assault, aggravated assault on a police officer, and recklessly endangering another person. Trial commenced on August 29, 1974, and was completed on September 13, 1974. Four of the defendants were acquitted of all charges; appellants were found guilty of aggravated assault and recklessly endangering another, but were acquitted of the remaining two charges. Following the denial of post-trial motions, appellant-Bartman was sentenced to a term of eight to twenty-four months' imprisonment on the aggravated assault charge, and a consecutive term of four to twelve months' imprisonment on the charge of recklessly endangering another person. Appellant-Dikun was sentenced to a term of nine to twenty-four months' imprisonment on the aggravated assault charges, and a consecutive term of six to twelve months' imprisonment on the recklessly endangering charge. The assertions of error in regard to the two charges will be discussed separately.
Appellants were indicted for a violation of 18 Pa.C.S. § 2702(a)(3), which provides that "[a] person is guilty of
[ 240 Pa. Super. Page 500]
aggravated assault if he: . . . (3) attempts to cause or intentionally or knowingly causes bodily injury to a police officer making or attempting to make a lawful arrest. . ." (Emphasis added). The lower court, however, instructed the jury that "[t]he use of force is not justified under this Section when it is used to resist an arrest which the actor knows is being made by a peace officer, although the arrest is unlawful. . ." (Emphasis added). The appellants contend that the court's charge was in direct conflict with the language of the statute, and, therefore, erroneous.*fn4
We recently addressed a similar question in Commonwealth v. Stortecky, 238 Pa. Superior Ct. 117, 352 A.2d 491 (1975). In Stortecky, appellant contended that the lower court committed reversible error by failing to define "lawful arrest" in its instructions to the jury on the charge of aggravated assault on a police officer. In rejecting appellant's contention, our Court held that "[t]he Trial Judge was not required to place the question of the lawfulness of the appellant's arrest before the jury, that being a matter for his decision which is subject to our review. We find from the record that there was ample evidence supporting probable cause of the officers to arrest the appellant." 238 Pa. Superior Ct. at 120, 352 A.2d at 492. Stortecky, therefore, does not hold that the legality of the arrest is irrelevant; it merely holds that
[ 240 Pa. Super. Page 501]
the issue may be decided by the court and does not have to be submitted to the jury.*fn5 The lower court correctly points out that the Crimes Code chapter on General Principles of Justification is in direct conflict with the language of § 2702(3): "The use of force is not justifiable under this section: (i) to resist an arrest which the actor knows is being made by a peace officer, although the arrest is unlawful . . ." 18 Pa.C.S. § 505(b)(1)(i). This glaring inconsistency, however, cannot render the legality of the arrest irrelevant in a prosecution for aggravated assault on a police officer, because the legality of the arrest is an element of the crime and must be proved by the Commonwealth.*fn6 The disagreement between the Majority and Dissenting viewpoints in Stortecky goes only to the question of whether the judge or jury has to make the determination.
Therefore, the court below erred in instructing the jury that appellants could be found guilty of aggravated assault on a police officer, regardless of the legality of the arrest. Appellants' convictions on this ...