No. 2368 October Term, 1979, Appeal from the final Judgment of Sentence, Court of Common Pleas, Philadelphia County, Criminal Division, Nos. 1259-1263, Jauary Term, 1979.
Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Brosky, Johnson and Popovich, JJ. Popovich, J., files a concurring statement.
[ 298 Pa. Super. Page 285]
After a non-jury trial on August 17, 1979, Appellant was found guilty of Criminal Conspiracy,*fn1 Carrying Firearms on Public Streets,*fn2 Possessing Instruments of Crime -- Criminal Instruments Generally,*fn3 and Aggravated Assault.*fn4 Appellant was found not to be guilty of Criminal Attempt.*fn5 The
[ 298 Pa. Super. Page 286]
court denied Appellant's post-trial motions on October 30, 1979; and on December 11, 1979, the court denied Appellant's Motion to Vacate and Reconsider the Sentence Nunc Pro Tunc. This is an appeal from the final Judgment of Sentence.
The complainant (Smith), after leaving a bar with two companions, heard Appellant, who was with a group of people across the street, shout a statement that was unintelligible. When Smith asked whom Appellant had addressed, Appellant replied, "You," and, pulling a knife, began to walk across the street toward Smith. When Smith picked up some bricks, Appellant directed his brother to bring Appellant's loaded rifle, which Appellant subsequently fired at Smith. The bullet hit the wall behind Smith. As Smith ran away, Appellant fired another shot. No one was injured, although approximately thirty people -- including some children -- were in the vicinity of the shooting.
Appellant raises three issues for our consideration. First, Appellant claims that the evidence was insufficient to establish that he was guilty of aggravated assault. Second, Appellant argues that the conviction for criminal conspiracy should be vacated, first, because it was not based upon sufficient evidence, and, second, because the finding of guilty of criminal conspiracy to attempt to commit murder and that of not guilty of attempt to commit murder constitute inconsistent verdicts. Third, Appellant claims that section 906 of the Penal Code, 18 Pa.C.S.A. § 906,*fn6 bars convictions for two inchoate crimes -- conspiracy and possessing instruments of crime, in the instant case.
For the following reasons, we vacate the judgment of sentence and remand.
In discussing his first issue, Appellant claims that the Commonwealth failed to prove that he attempted to cause serious bodily injury to ...