No. 507 October Term, 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Nos. 1158, 1159, June Session, 1977.
Leonard Sosnov, John W. Packel, Assistant Public Defenders, Chief, Appeals Division, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Price, Hester and Hoffman, JJ. Hoffman, J., files a concurring statement.
[ 272 Pa. Super. Page 43]
The instant appeal is from appellant's sentence on the charges of recklessly endangering another*fn1 and simple assault.*fn2 Post-trial motions were denied and appellant now asserts three assignments of error in the trial court: (1) that he was improperly tried in the Court of Common Pleas of Philadelphia County and should have been tried in the Philadelphia Municipal Court; (2) that the evidence was insufficient to sustain his conviction under 18 Pa.C.S. § 2705 for recklessly endangering another; and (3) that under the facts of this case, the offenses of reckless endangerment and simple assault merge for the purposes of sentencing. For the reasons stated herein, we affirm the judgment in the trial court.
The facts pertinent to this appeal are as follows. The fourteen year old victim testified that after she left school on May 31, 1977, she and her sister were waiting in the cashier's line at a subway station in Philadelphia. The station was very crowded with hundreds of youngsters. To the right of the victim and her sister, approximately ten to twelve feet away, stood a group of males, including appellant. The victim observed appellant facing her direction and heard him say, "No white kid is going to throw me in the tracks." Thereupon, appellant ran toward the victim and struck her on the side of the face one inch below the eye; appellant was apprehended immediately. As a consequence of the blow, the victim suffered swelling in her face and nose and broken tissues in her nose; the swelling subsided approximately one month later.
[ 272 Pa. Super. Page 44]
A criminal complaint was filed and an arraignment and preliminary hearing conducted during which appellant was charged with recklessly endangering another person, terroristic threats,*fn3 simple assault and aggravated assault.*fn4 In June 1977, informations were filed. As originally drawn, information number 1159 charged appellant with simple and aggravated assault; the aggravated assault charge was, however, crossed out on the front of the information sheet prior to its being filed, although the back portion detailing the specifics of the aggravated assault offense was not deleted.
On July 28, 1977, a non-jury trial was held in the Court of Common Pleas of Philadelphia County. At the commencement of trial, appellant made an oral motion that the case be transferred to the municipal court. Because the remaining offenses of reckless endangerment, terroristic threats and simple assault were misdemeanors, and because he had not moved pursuant to a rule of the Philadelphia Court of Common Pleas to certify the case for trial in that court, appellant asserted that the case should be tried in the municipal court.*fn5 The assistant district attorney moved to amend the information to charge the offense of aggravated assault, a felony, thus mandating that trial be conducted in the court of common pleas. See Pa.Const., Art. 5, Sched., § 16(o); Act of Oct. 17, 1969, § 18, as amended, 17 P.S.
[ 272 Pa. Super. Page 45]
§ 711.18 (Supp. 1978-79), repealed, Act of April 28, 1978, P.L. 202, § 2(a). The prosecution maintained that the crossing out of the aggravated assault charge on the original information was a clerical error. The court permitted the amendment and trial continued, with appellant ultimately being convicted of reckless endangerment and aggravated assault. However, on December 7, 1977, in overruling appellant's post-trial motions, the court sua sponte arrested judgment on the aggravated assault conviction and sentenced appellant on the simple assault charge. Appellant has made no objection on appeal to that action of the court in arresting judgment. Appellant was sentenced to six (6) to twenty-three (23) months imprisonment on the reckless endangerment charge and two years probation on the simple assault charge.
Appellant's first assignment is that the lower court erred in denying his request to transfer the case to the Philadelphia Municipal ...