No. 66 October Term, 1978, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, Berks County, at No. 76068301.
Robert E. Kerper, Jr., Assistant Public Defender, Reading, for appellant.
J. Michael Morrissey, District Attorney, Reading, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Spaeth and Hester, JJ. Spaeth, J., concurs in the result. Jacobs, former President Judge, did not participate in the consideration or decision of this case.
[ 267 Pa. Super. Page 373]
A jury convicted appellant, James Harold Davis, of aggravated assault and simple assault on the person of Gloria Amos. The bizarre facts are as follows. While visiting at his mother's house on May 20, 1976, appellant struck his girlfriend, Linda Putt, in the face without any apparent provocation. Ms. Putt fled from the house bleeding profusely from the face with the appellant in hot pursuit. In his zeal to catch his girlfriend, appellant "dove through the air" and landed on an automobile smashing its windshield and breaking off its radio antenna. When Ms. Putt entered another automobile for protection, appellant leaped onto the hood and smashed its windshield with his bare fist. Abandoning the car, Ms. Putt raced to a nearby bus, but the bus driver ignored her desperate pounding and refused to open the doors to allow her to board. Appellant caught the girl and began beating her. One brave individual, Charles Amos, pushed appellant aside and instructed Ms. Putt to run to his car for safety. Mr. Amos' wife, Gloria, guided the battered woman into the front seat of the automobile.
[ 267 Pa. Super. Page 374]
Before they could secure the car, appellant intervened and raised his clenched fist at the car window whereupon Gloria Amos blurted, "Don't break our window too." In one motion, appellant swiveled and punched Mrs. Amos in the face causing her to black out. Police officers arrived and quickly subdued appellant. Mrs. Amos suffered multiple fractures of her lower jaw which forced her to spend four days in the hospital and six weeks with her jaws wired shut.
Appellant raises seven separate grounds to attack his conviction. We considered each argument seriatim and found none persuasive. Accordingly, we affirm the conviction.
Appellant first contests the sufficiency of the evidence to sustain the jury verdict convicting him of aggravated assault. A person is guilty of aggravated assault if he: "(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life . . . ." Crimes Code, 18 Pa.C.S. § 2702(a)(1) (1973). "Serious bodily injury" is defined as: "[B]odily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Crimes Code, 18 Pa.C.S. § 2301 (1973). Viewing the evidence and all reasonable inferences in a light most favorable to the Commonwealth, Commonwealth v. McFadden, 448 Pa. 146, 292 A.2d 358 (1972), we conclude that a jury could find beyond a reasonable doubt that serious bodily injury occurred, and that appellant either intended that result or acted recklessly so as to manifest an extreme indifference to the value of human life.
The instant case is readily distinguishable from Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887 (1978), wherein the Supreme Court reversed our court*fn1 and held that a single blow to the face of the victim resulting only in a fractured nose was not sufficient to constitute aggravated
[ 267 Pa. Super. Page 375]
assault. Importantly, in Alexander the Commonwealth conceded that a simple fracture of the nose was not a "serious bodily injury" as defined in Section 2301 of the Crimes Code. Instead, the Commonwealth argued that a jury could infer extreme indifference to the value of human life under Section 2702(a)(1) merely from a punch delivered to the victim's face. The limited holding in Alexander was the basis for our upholding the conviction for aggravated assault in Commonwealth v. Kibe, 258 Pa. Super. 353, 392 A.2d 831 (1978), ...