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COMMONWEALTH PENNSYLVANIA v. LYNN S. RITCHEY (05/06/83)

filed: May 6, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
LYNN S. RITCHEY, APPELLANT



No. 413 Pittsburgh, 1981, Appeal from the Judgment of Sentence of March 9, 1981 In the Court of Common Pleas of Cambria County, Criminal Division, No. 0228 A, B, 1980.

COUNSEL

William Gleason Barbin, Johnstown, for appellant.

D. Gerard Long, District Attorney, Ebensburg, for Commonwealth, appellee.

Cercone, President Judge, and Wieand and Beck, JJ.

Author: Cercone

[ 313 Pa. Super. Page 239]

Appellant, Lynn S. Ritchey, takes this appeal from his conviction by a jury for aggravated assault and recklessly endangering another person. Appellant raises three issues, none of which have any merit, and we affirm.

The charges in the instant case arose as a result of an incident which occurred on December 18, 1979 in Cresson Township, Cambria County. On that date, at approximately 9:00 p.m., the victim, Gerald Croll, and his fiance, Patricia Budicky, were sitting in Croll's automobile, which was parked in a remote area. The couple had had an argument earlier in the day and were trying to talk over their differences when a truck pulled up behind their car. Croll turned on his headlights so that the truck would see that someone was there, and the truck proceeded to back up and leave the

[ 313 Pa. Super. Page 240]

    area. Within a few minutes, a man knocked on the driver's window of Croll's car and the man told Croll to get out of the car. Thinking it was a police officer, Croll complied and was confronted by two men, one of them later identified as appellant. Appellant pulled out a gun and ordered Croll to tell his girlfriend to get out of the car. When Croll did not respond immediately appellant fired two shots into the air, whereupon Budicky got out of the car. Next appellant ordered Croll to get back in the car and to drive away. Croll did get back into the car but instead of complying with appellant's orders, Croll attempted to knock appellant down by backing his car into him. Appellant, however, jumped out of the way, and Croll got out of the car and started to struggle with appellant. Croll yelled to Budicky to get back in the car and start the engine, which had stalled. As Budicky did this, Croll and appellant continued to wrestle. During the fight, appellant at three separate times fired a shot into Croll's stomach. Despite his injuries, Croll continued the struggle until appellant got up and ran away.

Appellant first argues that the trial court erred in "limiting the scope of cross-examination on re-call of a particular witness." Appellant, however, fails to elaborate on this point and we do not know how the court unduly restricted cross-examination of the witness. In fact, appellant never identifies this witness in his brief, although the Commonwealth does tell us that it is the testimony of the victim, Croll, which is at issue. Since appellant fails to point to any particular error of the court in this matter, and since the record is equally unenlightening, we reject appellant's argument. See generally, Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975).

Appellant next argues that the court erred in refusing to answer a question put to the judge by the jury during its deliberations. Specifically, the jurors inquired whether the truck driven by appellant to the scene of the crime had been found by the police following the incident. As there was no testimony presented to the jury on this issue, the judge told the jurors that he could not answer

[ 313 Pa. Super. Page 241]

    that question and he directed them to decide the case based upon their recollection of the evidence which was presented to them. Unquestionably, the trial judge acted properly in this matter ...


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