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COMMONWEALTH PENNSYLVANIA v. DONALD SAVAGE (02/01/80)

filed: February 1, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
DONALD SAVAGE, APPELLANT



No. 1217, October Term 1978 Appeal from Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Div., Crim. Section, on Bills of Information Nos. 2224, 2225, 2229, 2230 of May 1977.

COUNSEL

Anthony D. Reagoso, Philadelphia, for appellant.

Franklin Noel, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, Stranahan and Sugerman, JJ.*fn*

Author: Spaeth

[ 275 Pa. Super. Page 98]

A jury convicted appellant of robbery,*fn1 burglary,*fn2 conspiracy,*fn3 and aggravated assault.*fn4 Post-verdict motions were denied, and appellant was sentenced to 6 to 15 years for robbery; 6 to 15 years for burglary, with the sentence to run consecutive to the sentence for robbery; a concurrent term of 3 to 6 years for conspiracy; and an additional concurrent

[ 275 Pa. Super. Page 99]

    term of 2 and 1/2 to 5 years for aggravated assault.*fn5 On this appeal appellant claims that the trial judge erred in his instructions to the jury.

Viewed in the light most favorable to the Commonwealth, the evidence at trial was as follows. At approximately 3:15 a. m., on April 22, 1977, appellant and his co-defendant, each carrying a revolver, accosted Joseph Bennett on the steps leading to his apartment house in Philadelphia. At their command Bennett unlocked the door to the apartment house. Once inside, appellant and his co-defendant forced Bennett to his knees and took over $200 from him. Appellant took Bennett's keys and locked the front door behind him. He then returned the keys to Bennett, required him to unlock the door to his apartment, and went to an upstairs apartment. There, at gunpoint, he ordered Bennett's neighbor, Devoux Gould, to come downstairs. When Gould requested permission to get dressed, appellant struck him on the head with the butt of his revolver and told him to shut up. Meanwhile, appellant's co-defendant had accompanied Bennett inside Bennett's apartment and started to rifle Bennett's dresser drawers. Unbeknownst to appellant or his co-defendant, Bennett's roommate had escaped out the back and called the police, who came to the scene and arrested appellant and his co-defendant. One officer searched the co-defendant and recovered over $200 in the same denominations as Bennett had described were taken from him.*fn6

At the close of all the testimony the jury retired to deliberate. After approximately two hours, the jury sent a message to the trial judge, requesting that he explain the

[ 275 Pa. Super. Page 100]

    meaning of aggravated assault. The judge recalled the jury and instructed them as follows:

I will repeat the instructions which I gave the jury in my charge.

In order to find the defendant guilty of aggravated assault you must find that the defendant attempted or threatened to cause serious bodily injury to Devoux Gould.

Serious bodily injury is bodily 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.

Now, according to my recollection of the evidence, which is not binding on you, it is your recollection of the evidence that counts, this arises out of the testimony of Devoux Gould that the defendant-I withdraw that.

I will leave it to your recollection entirely. I have given you the definition; and ...


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