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COMMONWEALTH PENNSYLVANIA v. JEROME CAVANAUGH (06/06/80)

filed: June 6, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
JEROME CAVANAUGH, APPELLANT



No. 45 october Term 1979, Appeal from Judgment of Sentence of the Court of Common Pleas of Phila. County, Trial Division, Criminal Section, Nos. 1474-1476 May Term 1978.

COUNSEL

Kevin S. Anderson, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, submitted a brief on behalf of Commonwealth, appellee.

Spaeth, Hester and Cavanaugh, JJ.

Author: Spaeth

[ 278 Pa. Super. Page 544]

Appellant was convicted by a judge sitting without a jury of aggravated assault,*fn1 simple assault,*fn2 recklessly endangering another person,*fn3 possessing an instrument of crime,*fn4 and terroristic threats.*fn5 On appeal, he argues that the evidence was insufficient to support the convictions of aggravated assault, recklessly endangering another person, and possessing an instrument of crime; he does not challenge the other convictions.

On March 29, 1978, Reginald Harris was walking on Haines Street in Philadelphia when he was approached by appellant. According to Harris's testimony, appellant struck him on one arm, both legs, and his head with a tire iron. (N.T. 7-9) Harris testified that after striking him with the tire iron, appellant said that "next time he was going to kill me." (N.T. 9) Appellant was 6 feet 4 inches tall and weighed about 250 pounds; Harris weighed 125 pounds. Harris also testified that appellant had accused him during the summer of 1977 of robbing his house (N.T. 9), but that since that summer, they had neither seen nor spoken to one another. (N.T. 9-10). As a result of the assault, Harris sustained lacerations of the head, requiring nine stitches at Germantown Hospital.

Appellant's main defense was that Harris had continually taunted him by claiming to have burglarized his house. Appellant testified that this taunting made him so angry that he struck Harris "about twice" with his fist; he denied hitting Harris with a tire iron. (N.T. 27-28)

The Crimes Code provides that a person is guilty of aggravated assault if he "attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly

[ 278 Pa. Super. Page 545]

    or recklessly under circumstances manifesting extreme indifference to the value of human life; . . . ." 18 Pa.C.S.A. 2702. The Code defines "serious bodily injury" as "[b]odily 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." 18 Pa.C.S.A. 2301 (1973).

It may be granted that appellant did not cause "serious bodily injury" to Harris. See Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887 (1977). The evidence that he repeatedly struck Harris with a tire iron, once on the head, that he was much larger than Harris, and that he told Harris that "next time" he would kill him, was nevertheless sufficient to support an inference that he attempted to cause serious bodily injury to Harris.

A similar observation may be made with respect to the charge of recklessly endangering another person. This offense is defined by the Crimes Code as "conduct which places or may place another person in danger or death of serious bodily injury." 18 Pa.C.S.A. ยง 2705. Even if one grants that appellant's conduct did not in fact place Harris in ...


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