No. 248 Pittsburgh, 1981, APPEAL FROM THE SENTENCE OF THE COURT OF COMMON PLEAS OF BEAVER COUNTY, PENNSYLVANIA (CRIMINAL DIVISION) ENTERED JANUARY 28, 1981 AT NO. 440 of 1980.
Steven Kocherzat, Beaver, for appellant.
John Lee Brown, Assistant District Attorney, Beaver, for Commonwealth, appellee.
Brosky, Cirillo and Popovich, JJ. Popovich, J., files a dissenting opinion.
[ 301 Pa. Super. Page 84]
Appellant, Charles M. Dawson, appeals from the judgment of sentence entered against him on January 28, 1981. He was found guilty by a jury on October 28, 1980 of two counts of aggravated assault,*fn1 four counts of simple assault, and two counts of recklessly endangering another person.*fn2 Appellant was sentenced to not less than one nor more than two years imprisonment on one aggravated assault conviction and, on the other aggravated assault conviction, he was sentenced to three years probation to commence consecutively after imprisonment. The trial court denied appellant's motions for new trial and in arrest of judgment. This appeal followed.
Appellant presents two issues for our review: (1) the trial court abused its discretion in furnishing the jury, pursuant to its request, with a written statement defining the statutory elements of the crimes charged, and (2) the trial court abused its discretion in not giving the jury a statement defining self-defense since the trial court complied with the jury's other request.
In regard to appellant's first contention, Rule 1114 of the Pennsylvania Rules of Criminal Procedure provides:
Upon retiring for deliberations, the jury shall not be permitted to have a transcript of any trial testimony, nor a copy of any written confession by the defendant, nor a copy of the information or the indictment. Otherwise, upon retiring, the jury may take with it such exhibits as the trial court deems proper.
[ 301 Pa. Super. Page 85]
In the instant case, shortly after the jury began its deliberations, the jurors sent a hand-written request to the trial court for clarification of the crimes charged. The request read: "we need written definitions of aggravated assault, simple assault, and recklessly endangering." The trial court held an in-chambers conference with both the prosecutor and defense counsel concerning this request. The trial court felt that it was appropriate to comply with the request because there was a large amount of repetition and overlapping of particular elements of the crimes, and the absence or addition of an element made it difficult to differentiate one crime from another on the basis of memory alone. The court proposed sending to the jury a list of the elements of the various crimes charged in the information. Defense counsel objected that this statement would prejudice appellant, and that the jury would place undue emphasis upon it. After noting defense counsel's objection on the record, the trial court sent the jury the following statement which was typed on a plain, white sheet of paper:
" Counts One and Two -- Aggravated Assault
Intentionally, knowingly, or recklessly causing serious bodily injury to another under circumstances manifesting extreme indifference to the value of human life.
Counts Three and Four -- Aggravated Assault
Intentionally or knowingly causing bodily injury to another with a deadly weapon.
Counts Five and Six -- Simple Assault
Intentionally, knowingly or recklessly causing bodily injury to another.
Counts Seven and Eight -- Simple Assault
Negligently causing bodily injury to another with a ...