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COMMONWEALTH PENNSYLVANIA v. JOSEPH DIAMOND (08/03/79)

filed: August 3, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH DIAMOND, APPELLANT



No. 253 October Term 1978, Appeal from the Order of the Court of Common Pleas of Phila. County, (Misc. No. 77-00-4142) of a writ of certiorari to the Municipal Court of Phila. County at M.C. 77-02-334.

COUNSEL

John W. Packel, Assistant Public Defender, Chief, Appeals Division, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Price, Spaeth and Watkins, JJ.

Author: Spaeth

[ 268 Pa. Super. Page 327]

Appellant was tried in municipal court before Judge KREMER and was found guilty of simple assault. He was sentenced to two years probation. On writ of certiorari Judge MIRARCHI sustained the judgment of sentence. This appeal followed.

The Commonwealth's witnesses testified as follows: On February 9, 1977, at approximately 4:00 a. m., Officer Daniel Hinds of the Philadelphia police was driving home from an evening of pinochle. He was off-duty and in his own car. He saw two men in the street, inside the line of parked cars, running in the direction in which he was driving. Hinds swerved to the left to avoid hitting them. Shortly afterwards he stopped for a red light. Appellant, one of the men

[ 268 Pa. Super. Page 328]

    who had been running in the street, ran up to the passenger door of the officer's car, and put his hand on the door handle. (The doors of the car were locked.) At that moment, appellant's co-defendant, Thomas Boyle (the second man Hinds had passed), came up to the driver's window and, using obscenities, demanded that Hinds get out of the car because "you tried to run me over." Boyle pulled a knife out of his pocket and brandished it. He repeated his demand that Hinds get out. Hinds got out, with his service revolver drawn. Seeing the gun, Boyle ran off. Appellant also started to run, but Hinds shouted, "Police, freeze." Appellant halted and was arrested, with the help of policemen in a marked car who had come onto the scene. Boyle returned shortly thereafter and was also arrested.

The question on appeal is whether there was sufficient evidence to sustain a conviction for simple assault. The Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S.A. § 2701. In deciding the sufficiency of evidence, we must first accept as true all the evidence upon which the trier of fact could properly have based the verdict, and then ask whether that evidence, with all reasonable inferences from it, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Williams, 468 Pa. 357, 365, 362 A.2d 244, 248 (1976); Commonwealth v. Madison, 263 Pa. Super. 206, 397 A.2d 818 (1979). However, guilt must be proved and not conjectured. Commonwealth v. Wilson, 225 Pa. Super. 513, 312 A.2d 430 (1973).

Simple assault is defined as follows:

(a) Offense defined. -- A person is guilty of assault if he:

(1) attempts to cause or intentionally, knowingly or recklessly causes ...


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