No. 1414 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, Imposed on Bill of Indictment Nos. 1433, 34 & 36, July Session, 1976.
John W. Packel, Assistant Public Defender, Philadelphia, for appellant.
Edward G. Rendell, District Attorney, Philadelphia, for Commonwealth, appellee.
Price, Hester and Hoffman, JJ.
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The court below, sitting without a jury, convicted appellant of aggravated assault,*fn1 recklessly endangering another,*fn2 endangering the welfare of a child,*fn3 and possessing an instrument of crime.*fn4 All of the charges stemmed from appellant's beating of his seven year old stepson with a stick. On direct appeal, appellant contends that we should vacate judgment on all the charges because there was insufficient evidence that he was motivated by ill will or malice toward the child. Appellant also contends that the evidence of serious bodily injury was insufficient to sustain his conviction for aggravated assault and that the stick used in the beating is not an instrument of crime. We agree only that the stick is not an instrument of crime. Because we do not think that the improper conviction for possession of an instrument of crime influenced the sentence on the remaining counts, we affirm the other judgments of sentence and do not remand for resentencing.
"In appraising the sufficiency of evidence, we must apply a two-step test. First we must regard the evidence in the light most favorable to the Commonwealth, accepting as true all evidence upon which the fact finder could properly have based its verdict; then we must ask whether that evidence, with all reasonable inferences from it, was sufficient to prove guilt beyond a reasonable doubt." Commonwealth v. Eddington, 255 Pa. Super. 25, 26, 386 A.2d 117, 118 (1978). See Commonwealth v. Hamm, 474 Pa. 487, 378
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A.2d 1219 (1977); Commonwealth v. Holguin, 254 Pa. Super. 295, 385 A.2d 1346 (1978). "This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt." Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468, 478 (1977). See Commonwealth v. Williams, 252 Pa. Super. 435, 381 A.2d 1285 (1978).
Regarded in the light most favorable to the Commonwealth, the evidence presented at appellant's non-jury trial on December 21, 1976 may be summarized as follows:
On June 29, 1976, appellant lived with his wife, Ms. Debra Moore, and her seven year old son Lamont. Appellant is not Lamont's biological or adoptive father. Ms. Moore had authorized appellant to discipline Lamont. When appellant and his wife returned home on that day, they discovered that Lamont had admitted some of his friends into the house, an act they expressly warned him not to do. Ms. Moore sent Lamont upstairs to his room and went to the supermarket. While she was gone, appellant went upstairs to Lamont's room and told Lamont that he would have to whip him for his disobedience. Appellant testified: "So I leaned him over the bed and I just picked up the first thing I seen -- just started chastising him. So I started chastising him; so then after I, I stopped, I seen that he fell to the floor; Lamont likes to play a lot of games, and I told him to stand up and he said, 'Daddy, I can't'." Appellant further admitted that he hit Lamont four or five times and that he had a quick temper and was feeling gloomy that day. When Ms. Moore returned home, she heard Lamont crying, went upstairs, and saw appellant beating Lamont's bare bottom with a stick. Appellant described the stick as "a little paddle stick;" no other description of the stick appears in the trial record. Lamont was taken to a hospital very soon thereafter where an officer from the Juvenile Aid Division of the Philadelphia Police Department saw him in the early morning hours of June 30, 1976. The officer described Lamont's injuries as "a lot swelling on his buttocks, bruises, all around towards the rear back and of his buttocks and,
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[she believed], his ankle." Ms. Moore testified that at the time of trial, almost six months after the incident, ...