No. 797 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 332-334, December Session, 1979.
Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Hester, Shertz, and Wieand, JJ. Shertz, J., files a concurring and dissenting statement.
[ 290 Pa. Super. Page 211]
Milton Williams was tried non-jury and found guilty of aggravated assault, simple assault, recklessly endangering another person, and possessing an instrument of crime. At sentencing, after post trial motions had been denied, the trial court held that the conviction for simple assault had merged in the offense of aggravated assault and imposed three concurrent sentences of imprisonment of not less than
[ 290 Pa. Super. Page 212]
four and one-half years nor more than nine years for the remaining convictions. On appeal, Wilson raises three issues: (1) that the evidence presented at trial was so contradictory that the trial court's verdict must necessarily have been based upon conjecture; (2) that sentences in excess of the statutory maximums were imposed for the offenses of recklessly endangering another person and possession of the instruments of crime; and (3) that, on the facts of this case, double jeopardy considerations and the doctrine of merger precluded a separate sentence for recklessly endangering another person.
The facts of the case were developed primarily through the testimony of Daniel Allen, the complainant, who conceded that he was a homosexual. He testified that on May 23, 1979, he went to the Ritz Bar in Philadelphia, a place where homosexuals were known to gather, for the purpose of attempting to "score" or "meet a fellow." There he met the appellant, with whom he struck up a conversation. Subsequently the two men stopped at the Fuel Pump and the Mr. Big Shot bars, where the complainant purchased drinks and they engaged in "homosexual conversation." At 7:00 or 7:30 P.M., complainant told defendant he had to deliver some packages to the Regular Fellows Club at 1438 Federal Street, where he was the business manager. He suggested that defendant accompany him and that they could have a few drinks there and get to know each other better.
Upon arrival at the club, complainant poured drinks and gave appellant a tour of the club, which was then deserted. They took their drinks to the second floor of the club,*fn1 where they sat at a bar and continued their conversation. As complainant was about to go downstairs to refill the glasses, appellant pulled out a barber's razor and announced a "stick-up."
[ 290 Pa. Super. Page 213]
When he realized that appellant was not joking, the complainant threw a chair at appellant and tried to get away. He tripped and fell near the stairs, however, where appellant repeatedly slashed at him with the razor, inflicting severe lacerations to the face and thigh, which left the complainant with permanent scars. Complainant began yelling for help, at which time the appellant ran downstairs and out of the club. Complainant called the police who transported him to the hospital, where 125 sutures were required to close his wounds.
On July 21, 1979, complainant again saw the appellant in the Ritz Bar and called the police. Officer John Rutter brought the appellant out of the bar whereupon he was identified by the complainant and ...