No. 2381 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, Imposed on Bill of Indictment Nos. 1486 & 1488, September Session, 1977.
John W. Packel, Chief, Appeals, Assistant Public Defender, for appellant.
Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.
Hester, Hoffman and Catania, JJ.*fn* Hester, J., files a concurring and dissenting opinion.
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Appellant contends that: 1) the trial court incorrectly instructed the jurors on the offenses charged; 2) the court
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did not inform the jurors of an available defense to conspiracy; 3) the court incorrectly defined the standard of reasonable doubt; and 4) his inculpatory statement should have been suppressed. We agree in part with appellant's first contention and therefore affirm in part and reverse in part.
Appellant was riding with two other men in a car. The driver pulled up beside the victim, Jerry Tannenbaum, walking on the street, and appellant got out to ask Tannenbaum for money. When Tannenbaum refused, one of the other men, Mylice James, came up behind him and began to punch Tannenbaum while appellant choked him. Tannenbaum threw his wallet on the ground and one of the men eventually picked it up. The men then drove off. Tannenbaum sustained cuts, scratches and bruises on his face. Appellant testified that he politely asked Tannenbaum for money and made no threats. When James attacked Tannenbaum, appellant attempted to separate the pair by grabbing both. According to appellant, James escaped his grip and he was left holding Tannenbaum around the throat. Tannenbaum complained that appellant was choking him and appellant immediately released him. Appellant stated that he never saw a wallet and, in the car, argued with James about what James had done.
At trial, appellant submitted points for charge on each of the offenses. The court rejected the proposed points. On April 17, 1978, a jury convicted appellant of robbery, simple assault and conspiracy. After denying post-verdict motions, the trial court sentenced appellant to a term of imprisonment of 1 to 5 years for conspiracy, a concurrent term of 2 to 5 years for robbery and suspended sentence on the assault charge.
Appellant contends that the trial court erroneously instructed the jury on each of the offenses charged. 18 Pa.C.S.A. § 2701 provides:
(a) Offense defined. -- A person is guilty of assault if he:
(1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another;
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(2) negligently causes bodily injury to another with a deadly weapon; or
(3) attempts by physical menace to put another in fear of imminent ...