No. 875 April Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Erie County, Criminal Division, at No. 817 of 1976.
Michael R. Cauley, Assistant Public Defender, Erie, for appellant.
S. Connelly, Assistant District Attorney, Erie, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., filed a concurring and dissenting opinion. Cercone, J., filed a dissenting opinion. Jacobs, President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 261 Pa. Super. Page 163]
Appellant was convicted, in a jury trial, of aggravated assault. Post-trial motions were timely filed and denied, and he was sentenced to 11 1/2 to 23 months. This appeal followed.
The incident that gave rise to the charges occurred on February 7, 1976. Thomas Gusky (the victim) and Mary Lewis returned to their apartment at about 2:30 or 3:00 A.M. Loud music was coming from the apartment below, where appellant lived. Ms. Lewis tapped on the floor; this was a pre-arranged signal to lower the volume. Shortly thereafter Mr. Gusky heard footsteps on the stairs and saw a "bayonet-type object" thrust through the door. Feeling that it was inevitable that the door would be broken, Mr. Gusky opened it and was beaten by four assailants. He testified:
"They were trying to attack me while I was trying to throw punches and so forth. I got slashed twice in the back, twice in the chest, four or five times in the face, and I wasn't even aware I was getting slashed at the time . . ."
In Mr. Gusky's mind there was no question that appellant was one of his assailants; he stated: (Transcript, page 12)
"Mr. Russell was the only one I could . . . identify. The hallway was dark but the kitchen light was on. He was at the door. The other three I didn't know from previous experience anywhere, thus, I couldn't identify them. Mr. Russell -- I knew his face, plus I heard his name
[ 261 Pa. Super. Page 164]
called out and I recognized him and there was no doubt about that."
In response to a question as to whether appellant had wielded the knife, Mr. Gusky replied: (Transcript, page 16)
"I can't positively answer that. I am not quite sure that he is the actual one that had the weapon in his hand or not. I was sliced from behind and from the front; I believe more than one of them had a weapon. Whether or not he actually had the weapon, I am not sure although I did hear one of the other men say, "Terry, put the knife away," or something to that effect. But as far as seeing him with the knife, shoving it in my face, no, I am not sure."
Those of appellant's claims which require discussion arise out of the Bill of Particulars filed by the Commonwealth prior to trial. The Bill of Particulars reads as follows in pertinent part:
"(c) Defendant, with the use of a knife, stabbed the victim several times in the face and also caused cuts and/or ...