No. 839 April Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Allegheny County Criminal Division, on May 24, 1977, at No. CC7607345.
Lester G. Nauhaus, Assistant Public Defender, Pittsburgh, for appellant.
Charles W. Johns, Assistant District Attorney, and Robert E. Colville, District Attorney, Pittsburgh, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Price, J., concurs in the result. Van der Voort, J., dissents. Hoffman, J., did not participate in the consideration or decision of this case.
[ 258 Pa. Super. Page 542]
Before the court is an appeal from the judgment of sentence of the Court of Common Pleas of Allegheny County, Pennsylvania.
On December 10, 1976, appellant was tried before a jury and found guilty of the offense of assault by a prisoner (18 Pa.C.S. 2703).*fn1 Following the lower court's denial of timely filed post-trial motions, appellant was sentenced on May 24, 1977 to imprisonment of six to eighteen months, to run consecutively to any sentence then being served or remaining to be served.
The facts are as follows: On July 19, 1976, at approximately 8:10 P. M., at the Allegheny County Jail, Pittsburgh, Pennsylvania, appellant and another jail inmate were involved in an altercation over who would be the "ranger" for the evening. Both inmates had been independently assigned to be the "ranger" by separate officers and each was reluctant to return to his cell. (The "ranger" is a designated inmate who is permitted to remain outside his cell following lock-up for approximately two additional hours for the purpose of cleaning and maintaining the cell range (T. 47).
Although ordered, appellant refused to return to his cell and lock-up. Thereafter, appellant was seized by prison guards and removed to an area of the jail compound known as the "upper circle". There appellant slipped free of the officers' hold (T. 92), ran to the "circle desk" and picked up a bull horn megaphone from the desk. Various other inmates aware of the commotion viewed the incident hereinafter
[ 258 Pa. Super. Page 543]
described. As jail guard Peter Sutlic approached, appellant struck him on the head with the aforesaid megaphone (T. 99). Appellant was then subdued and taken to the isolation section of the jail.
Appellant posits three grounds for relief:
(1) That the Commonwealth's evidence was insufficient to prove that appellant had the requisite intent when guard Peter Sutlic was struck with the bull horn megaphone so as to ...