No. 827 October Term, 1977, Appeal from the Judgment of Sentence imposed by the Court of Common Pleas of the 26th Judicial District, Criminal Division, Columbia County Branch, at No. 152 May Term, 1974.
Ambrose R. Campana, Williamsport, for appellant.
Gailey C. Keller, District Attorney, Bloomsburg, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 258 Pa. Super. Page 271]
The instant appeal, following a trial by jury, arises from appellant's conviction for aggravated assault. Appellant argues first, that the evidence presented was insufficient to sustain the charge of aggravated assault and, second, that his sentence to pay a one thousand dollar fine and to serve nine to twenty-three months in prison was excessive.*fn1 The relevant facts are as follows.
On June 8, 1974, during daylight hours, Trooper Charles Confer of the Pennsylvania State Police saw a person whom he recognized to be Harvey Temple operating a truck in the Village of Millvile, Pennsylvania. The Trooper believed that Temple's operating privileges had been suspended, so he pursued him. When Trooper Confer signaled Temple to pull over and stop his vehicle, Temple ignored him. At the first opportunity the Trooper passed the truck and stopped Temple by bringing the police car to a halt in the path of his truck. Temple alighted from his truck and told the Trooper to get his car out of the way, whereupon Trooper Confer announced: "You are going to be arrested for driving during suspension."*fn2 Temple's response was a profanely worded threat to "bury [Confer's] head in the road." He then advanced toward the Trooper, grabbed him by his shirt collar, and told the Trooper that he, Temple, was not going to be arrested for anything. With his free hand Temple threw a punch at the Trooper's face, but missed. The blow, however, succeeded in knocking the name tag off the Trooper's uniform; and, in the process of the Trooper's wrenching himself free, Temple tore off the Trooper's tie and loosened buttons on his shirt. No further violence ensued because
[ 258 Pa. Super. Page 272]
passersby offered to come to the Trooper's aid. Thereafter, Temple was taken into custody, and investigation of police records demonstrated that his operating privileges had, in fact, been suspended.
Appellant's first argument, that the foregoing evidence was insufficient to find him guilty of aggravated assault, rests on the specific language of the pertinent Crimes Code provision defining aggravated assault. The Crimes Code, 18 Pa.C.S. § 2702(a)(3) (1973) provides:
"(a) Offense defined. -- A person is guilty of 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; . . ."
Since there is no question that Trooper Confer was a police officer and that Temple attempted to cause him bodily injury by punching him, the Commonwealth proved these elements of aggravated assault beyond a reasonable doubt. However, appellant argues that the Commonwealth demonstrated in its own case that Trooper Confer's arresting appellant was not lawful. Hence, Temple could not be guilty of aggravated assault. While, for the reasons which follow, we are constrained to agree that appellant's reprehensible conduct did ...