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filed: August 1, 1980.


No. 823 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Berks County, Criminal Division at No. 76109801-1.


David R. Eshelman, Assistant Public Defender, Reading, for appellant.

J. Michael Morrissey, District Attorney, Reading, for Commonwealth, appellee.

Van der Voort, Watkins and Montgomery, JJ.

Author: Montgomery

[ 279 Pa. Super. Page 610]

Appellant was arrested on October 6, 1976, and convicted, following a jury trial, on January 18, 1977, of simple assault. Post verdict motions were filed and denied. Appellant was thereafter sentenced on October 28, 1977 to a term of imprisonment for one to two years effective on that date. On November 4, 1977, a petition for reconsideration and modification of sentence was filed which requested that appellant be given credit for time served from October 6, 1976. Following a hearing, the petition was denied.

The incident surrounding the assault charge occurred at 4:00 A.M. on September 20, 1976. Denise Lewars, fifteen years of age, was delivering newspapers in the vicinity of Ninth and Cotton Streets in the city of Reading. The appellant and an individual named Robert Ehrgood, whom Miss Lewars knew, walked directly in front of the girl at a distance of three to four feet while she was delivering a paper on Ninth Street. Shortly thereafter, upon noticing the two men lingering at the corner, Ms. Lewars, decided to sit on the lit porch of a nearby home until they were gone. Appellant again walked past her while she was sitting on the porch. She resumed her deliveries a short time later and was joined by her sister. The appellant then approached her

[ 279 Pa. Super. Page 611]

    from the front, pushed the sister into the street and grabbed the victim placing a sharp object against her throat. When the sister began to scream, the appellant fled the scene.

Appellant presents several issues for review, the first of which questions the sufficiency of the evidence to convict him of simple assault on two grounds, (1) that the Commonwealth failed to sufficiently prove his identity as the assailant; and (2) that the Commonwealth failed to prove the crime of simple assault rather than mere harassment. Initially we note the test on appeal for examining the sufficiency of evidence is "whether, accepting as true all the evidence and all reasonable inferences therefrom, upon which, if believed, the fact finder could properly have based its verdict, it is 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." Commonwealth v. Rodgers, 472 Pa. 435, at 442, 372 A.2d 771, at 774 (1977).

Appellant alleges that the testimony of the fifteen year old victim in the case was incredible and not worthy of belief. The victim's pretrial identification occurred at the preliminary hearing when appellant was the only black person in the courtroom and this identification was properly suppressed; therefore the only consideration is whether the in-court identification, at trial, had an independent basis sufficient to purge it of the primary taint. Upon examination of the victim's testimony, it is clear that the in-court identification was positive, unequivocal and unshaken on cross examination. Miss Lewars testified that the street was well lighted and that she could see appellant clearly. She was also able to observe him at least twice prior to the attack.

Appellant further argues that the victim's identification is shaken by the fact that two days after the incident, Miss Lewars selected appellant's photograph from several shown to her by police while her sister chose that of another individual and when the victim was shown the two photos together she was unable to positively identify appellant. Apart from the fact that the photograph shown the victim

[ 279 Pa. Super. Page 612]

    was not a recent one, we again reiterate that the in-court identification had an established independent basis. Further, the cases cited by appellant in support of his argument are inapposite in that Miss Lewars was clearly not unduly influenced by an illegal photographic show-up.

A corollary issue to appellant's sufficiency argument is whether the act in question can be properly characterized as a simple assault or whether the charge should have been limited to harassment. A person is guilty of simple assault if he "(1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another; (2) negligently causes bodily injury to another with a deadly weapon; or (3) attempts by physical menace to put another in fear of imminent serious bodily injury." Act of December 6, 1972, P.L. 1482, No. 334, § 1, eff. June 6, 1973; 18 Pa.C.S. § 2701(a). Unquestionably the actions of the assailant in this case fall within the purview of the assault statute. There is ample evidence to support the charge that the victim, by physical menace, was put in fear of imminent serious bodily injury and not merely harassed, annoyed or alarmed. Act of December 6, 1972, P.L. 1482, No. 334, § 1, eff. June 6, 1973; See 18 Pa.C.S. § 2709.

Appellant further alleges that the trial court erred in not granting the defense request for a mistrial. The basis for this request involved the following exchange which occurred on redirect examination between the District Attorney and the victim:


Q. Denise, there are some very important things I think we should point out to the ladies and gentlemen of the jury. The first thing is, when you were at the police station, as Mr. Eshelman had asked you about, and you ...

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