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COMMONWEALTH PENNSYLVANIA v. DONALD CUTTS (03/21/80)

submitted: March 21, 1980.

COMMONWEALTH OF PENNSYLVANIA,
v.
DONALD CUTTS, APPELLANT



No. 1172 October Term 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, at 1244-1245. September Term, 1978.

COUNSEL

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

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

Spaeth, Brosky and Van der Voort, JJ.

Author: Spaeth

[ 281 Pa. Super. Page 111]

This is an appeal from a judgment of sentence for aggravated assault*fn1 and recklessly endangering another person.*fn2 Appellant argues that the evidence was insufficient to sustain the convictions.

In Commonwealth v. Herman, 271 Pa. Super. 145, 412 A.2d 617, we stated:

In testing the sufficiency of the Commonwealth's evidence, we proceed in several steps. First, we accept as true all the evidence upon which the finder of fact could properly have reached its verdict. Next we give the Commonwealth the benefit of all reasonable inferences arising from that evidence. And finally, we ask whether the evidence, and the inferences arising from it, are sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted. This inquiry is bounded by two poles. On the one hand, the Commonwealth does not have to establish guilt to a mathematical certainty and may in a proper case rely wholly on circumstantial evidence. On the other hand, guilt must be proved; mere conjecture or surmise is not sufficient. See Commonwealth v. Madison, 263 Pa. Super. 206, 397 A.2d 818 (1978); Commonwealth v. Morgan, 265 Pa. Super. 225, 401 A.2d 1182 (1979).

Read in the light of these principles, the Commonwealth's evidence may be summarized as follows.

Ethel Bagby, a barmaid at an establishment in Philadelphia, was at work on September 2, 1978, when appellant entered and asked her to telephone the police. Bagby informed appellant that the bar did not have a phone and resumed waiting on patrons. A few minutes later six or

[ 281 Pa. Super. Page 112]

    seven people entered the bar looking for appellant. N.T. 14 (December 8, 1978). Some of them were armed with cue sticks and bats, which they began swinging at appellant, who moved behind the bar with Bagby to avoid them. N.T. 9, 27a (December 8, 1978). Bagby observed a "girl with a stick" reaching over the bar trying to hit appellant, at which point she tried to move past appellant and the girl. N.T. 10 (December 8, 1978). Bagby saw appellant's right hand go up, and come down on her arm with a "shiny instrument" in it. N.T. 10 (December 8, 1978). She felt a "sting" in her arm, and when she looked down, saw her "whole arm . . . laying wide open." N.T. 11 (December 8, 1978). Bagby's son happened upon the scene and took her to the hospital where she received several large stitches in her arm. N.T. 11, 13 (December 8, 1978). She suffered a damaged nerve in her arm and had several scars after the stitches were removed. N.T. 12 (December 8, 1978). Bagby and her son had left the altercation while it was still in progress; she did not observe any injury to appellant before she left nor did she see any of the attackers move behind the bar and attack him there. N.T. 13, 38 (December 8, 1978). Appellant did ultimately suffer a fractured and lacerated hand. N.T. 25, 27 (December 8, 1978).

Appellant argues that the evidence raised the question of whether he was acting in self-defense when he injured Bagby, and that the Commonwealth failed to meet its burden of proving beyond a reasonable doubt that he was not doing so. Commonwealth v. Eberle, 474 Pa. 548, 379 A.2d 90 (1977); Commonwealth v. Cropper, 463 Pa. 529, 345 A.2d 645 (1975). Appellant acknowledges that there are no Pennsylvania cases that require the Commonwealth to meet this burden where a ...


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