No. 1634 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal, No. 7902-887.
Robert S. Robbins, Philadelphia, for appellant.
Sarah Vandenbraak, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Wickersham, McEwen and Popovich, JJ.
[ 309 Pa. Super. Page 301]
We here consider an appeal from a judgment of sentence imposed after appellant was convicted by a jury of simple and aggravated assault and sentenced to a term of probation for two years. We vacate the judgment of sentence and remand for a new trial.
This case arises out of an altercation which occurred at approximately 3:30 a.m. in the Kensington section of Philadelphia, and involved the occupants of two cars. The driver
[ 309 Pa. Super. Page 302]
of one car, Andrew Brown, and his companions, Terry Hopkins and appellant William Kennedy, had stopped to allow Kennedy to see if one of his friends who lived on the street was at home. Philadelphia policeman James Speiser, who was off-duty and driving Theresa Way to her home, waited behind the first car, and when Brown failed to proceed, Speiser honked his horn. The testimony concerning events thereafter from the witnesses for the Commonwealth differs considerably from that of the witnesses for the defense.
According to the testimony of Commonwealth witnesses Speiser and Way, Brown started to move his car forward and then suddenly drove his car in reverse and thereby collided with the front of Speiser's car. When Speiser got out of his car to see if any damage resulted from the collision, both Brown and Hopkins began to walk towards Speiser, while Brown threw his jacket on the ground and raised his fist. As a result, Speiser returned to his car, got his gun from the car, and announced that he was a police officer. Way then got out of Speiser's car and attempted to intercede. At this time, appellant, who was holding a beer bottle in one hand, came up behind Way, grabbed her arm and poured out the contents of the beer bottle. After appellant stated that there was a shotgun in Brown's car and that they would "get" Way, Brown ran towards his car. When Hopkins made a lunging motion towards Speiser, the officer fired two shots, one of which hit Hopkins in the stomach, while the other grazed Way's finger before wounding appellant and causing the loss of one of his fingers.
The Commonwealth supplemented this testimony with testimony of other witnesses who had seen portions of the incident. One witness testified that she drove up behind Speiser's car and that she saw two men get out of Brown's car, one of whom threw his jacket to the ground. This witness also saw a third man pour beer out of a bottle. Another Commonwealth witness, who lived in a nearby house, testified that she looked out of her bedroom window,
[ 309 Pa. Super. Page 303]
saw a man holding a woman by the arm, with his fist next to her head, and heard him state that he would "get" the woman. The Commonwealth also presented testimony from two policemen who testified that ...