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COMMONWEALTH PENNSYLVANIA v. KENNETH H. RUSSELL (01/26/83)

submitted: January 26, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
KENNETH H. RUSSELL, APPELLANT



No. 177 Harrisburg 1981, APPEAL FROM THE JUDGMENT OF SENTENCE OF JUNE 5, 1981 IN THE COURT OF COMMON PLEAS OF YORK COUNTY, CRIMINAL NO. 613 C.A. 1980

COUNSEL

John H. Chronister, Assistant Public Defender, York, for appellant.

Sheryl Ann Dorney, Assistant District Attorney, York, for Commonwealth, appellee.

Wickersham, Cirillo and Watkins, JJ.

Author: Cirillo

[ 313 Pa. Super. Page 537]

This is an appeal from the judgment of sentence of the Court of Common Pleas of York County, entered on June 5, 1981.

On January 13, 1981 appellant, Kenneth H. Russell, was tried before the Honorable John T. Miller, sitting without a jury, and convicted of burglary,*fn1 aggravated assault,*fn2 and criminal attempt*fn3 to commit rape.*fn4 On April 22, 1981 appellant's post-trial motions for a new trial and in arrest of judgment were denied and dismissed. Appellant was sentenced

[ 313 Pa. Super. Page 538]

    by Judge Miller on June 5, 1981 to terms of imprisonment of not less than 10 nor more than 20 years for burglary, not less than 2 nor more than 4 years for aggravated assault, and not less than 5 nor more than 10 years for criminal attempt to commit rape. The sentences for aggravated assault and attempted rape were ordered to run concurrently with the sentence for burglary. Appellant's motion for reconsideration of sentence was denied and this appeal followed.

Appellant contends that the evidence was insufficient to sustain a conviction on any of the charges and that the sentence of the Court was excessive under the circumstances of the case. The test of the sufficiency of the evidence in a criminal case is whether, viewing all the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences therefrom, it is sufficient to enable the trier of fact to find every element of the crimes charged beyond a reasonable doubt. Commonwealth v. Goldblum, 498 Pa. 455, 447 A.2d 234 (1982).

Viewed in accordance with this standard, the evidence established that on May 12, 1980, between 1:00 a.m. and 2:00 a.m. the appellant forced open a sliding glass door at the victim's residence with a screwdriver. The victim, who had been sleeping, was awakened and discovered the appellant inside the threshold. She screamed and ran to the door to attempt to close it. However, before she could shut the door, appellant grabbed her and a struggle ensued. Both the victim and the appellant fell onto the patio outside the door. The appellant grabbed the victim around the neck and began to choke her until she could no longer breathe, gagged, and felt faint. Unable to repel her attacker, the victim asked if he was going to rape her. The appellant did not answer, but tied her hands behind her back and placed tape over her eyes, as she lay face down on the patio.

Appellant then picked the victim up and brought her into the house. Appellant repeatedly mumbled that he could not do it this way. Appellant proceeded to cut the victim's T-shirt, bra, jeans, and panties from her body with a knife.

[ 313 Pa. Super. Page 539]

Appellant fondled the victim's breasts and put his finger in her vagina. At this time, the police, responding to a call from neighbors, arrived at the victim's residence and rang the doorbell. The appellant then took the victim to the bathroom, removed the twine from her hands and the tape from her eyes, and ordered her to go to the door and tell the police that everything was all right. The victim went to the door, ran from the house, and told the police what had happened. Appellant was apprehended later that day.

Appellant contends that the evidence is insufficient to support a conviction for aggravated assault. Specifically, appellant contends that there is no evidence that the victim suffered serious bodily injury. Appellant's claim is without merit. In defining the crime of aggravated assault 18 Pa.C.S.A. 2702(a)(1) provides in pertinent part:

A person is guilty of aggravated assault if he attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.

"Serious bodily injury" is defined in 19 Pa.C.S.A. 2301 as:

Bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

As the statute makes clear, a person can be found guilty of aggravated assault if he attempts to cause serious bodily injury; it is not necessary that the victim actually suffer serious bodily injury. Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887 (1978); Commonwealth v. Pandolfo, 300 Pa. Super. 447, 446 A.2d 939 (1982). However, as our Supreme Court said in Commonwealth v. Alexander, 447 Pa. at 194, 383 A.2d 889:

Where the injury actually inflicted did not constitute serious bodily injury, the charge of aggravated assault can be supported only if the evidence supports a finding that the blow delivered was accompanied by the intent to

[ 313 Pa. Super. Page 540]

    inflict serious bodily injury. Criminal intent may be proved by direct or ...


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