No. 1505 October Term, 1977, Appeal from the Judgments of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at Nos. 1479-1481 October Term, 1976.
Marilyn J. Gelb, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Chief, Appeals Division, Philadelphia, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Cercone, President Judge, files a concurring opinion in which Hester, J., joins. Spaeth, J., files a dissenting opinion. Jacobs, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
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Appellant was tried non-jury on the charges of robbery*fn1 (Bill No. 1479), criminal conspiracy*fn2 (Bill No. 1480), and aggravated assault and battery*fn3 (Bill No. 1481). Post-trial motions were considered and denied and judgment of sentence imposed. Sentence of 1 1/2 to 5 years was imposed on the robbery count, 1 1/2 to 5 years on the aggravated assault and battery to run concurrent to the first sentence, and sentence was suspended on the criminal conspiracy charge.
The main question presented for our consideration is whether the evidence is sufficient to support his conviction under the Crimes Code of aggravated assault.*fn4 This argument relies on Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887 (1978). This reliance is misplaced, and we affirm the judgments of sentence.
The victim of this aggravated assault and battery, although in fact a police officer, was seemingly an elderly visitor to the world famous "City of Brotherly Love." The date of the offense, October 6, 1976, occurred at a time when Pennsylvania was proudly promoting, and properly so, its part in the formation of this country, and urging visitation to the historical shrines in the Philadelphia area. This apparent bicentennial visitor was walking west on Wood Street. His hair was grey; he was wearing a hat, suit and
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tie; he had bus brochures hanging from his pocket; he was carrying a suitcase; and he was wearing an official Pennsylvania visitor's button.
In fact, he was Corporal Michael Lutz, assigned as part of a special unit of the Philadelphia Police Department. He was, in plain understanding, a decoy, and was being followed at a discreet distance by a back-up unit of other officers, including a police canine dog. This unit had been assigned to this work for the purpose of protecting Philadelphia's visitors.
As this apparent tourist walked along Wood Street, he was alerted by a signal from the back-up unit that he was being followed. Delaying his walk on a pretense, he observed appellant approaching him from the rear, and further observed appellant as the two passed on the street.
It seems obvious that the above described scene along Wood Street had its intended result and that the officer convincingly portrayed a carefree tourist on a happy vacation in Philadelphia. Appellant's eyes apparently translated the vision into dollar signs, for surely such a visitor had cash in his pockets. After appellant passed the officer-visitor, Corporal Lutz continued westwardly on Wood Street. Shortly thereafter, appellant, aided by a confederate, attacked.
The appellant led the attack, pushing the victim against a wall, while his confederate struck the victim three times in the face. The victim fell to the ground. While the confederate began to go through the victim's pockets, appellant attempted to kick the victim in the face, not once, but several times. The intent of this kicking was foiled only because Corporal Lutz took the force of the kicks on his arm, which he used to protect his head. At this point, the back-up unit arrived on the scene, and appellant fled. Appellant was not swift enough, however, to outrun the police canine dog who quickly made the initial stop.
Fortunately, this intended victim suffered only minor injuries. But appellant's actions establish that his intent
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was vicious, and that his acts were clearly in reckless, knowing indifference to the value of his victim's life.
This factual recitation is, of course, made from the record, as we are required, in the light most favorable to the verdict winner. The appellant's testimony understandingly conflicts, however, his identification and participation is firmly established by this record.
It is indeed true, as appellant argues, that in Alexander, supra, the supreme court, in reversing our earlier decision at 237 Pa. Super. 111, 346 A.2d 319 (1975), held that where the victim of a single punch to the nose did not actually sustain the requisite bodily injury, the injury there being a fractured nose, a conviction for aggravated assault could not be sustained because there was insufficient evidence, direct or circumstantial, from which an intent to inflict serious bodily injury could be inferred. There, the only direct evidence of intent was the appellant's testimony to the effect that he did not intend to seriously injure the victim when he "sucker punched" the victim in an unexpected assault on a street corner. Additionally, the supreme court in Alexander observed that there was no evidence that appellant was disproportionately larger or stronger than the victim and that appellant was not restrained from escalating his attack upon the victim. The supreme court explained, "We hasten to add that a simple assault combined with other surrounding circumstances may, in a proper case, be sufficient to support a finding that an assailant attempted to inflict serious bodily injury, thereby constituting aggravated assault." 477 Pa. at 194, 383 A.2d at 889.
Recently, in Commonwealth v. Kibe, 258 Pa. Super. 353, 392 A.2d 831 (1978), we have made such a distinction. There, a lone woman, late at night, was approached from the rear by the appellant in a deserted parking lot. The evidence suggested an intended sexual attack but culminated, after the victim indicated resistance, in a punch to the head, fracturing the woman's nose. The majority of this court held that such evidence was sufficient to support appellant's conviction for aggravated assault.
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The key to the interpretation of Alexander, supra, and our subsequent interpretation in Kibe, supra, is, of course, intent. Criminal intent may be proved by direct or circumstantial evidence. ...