NO. 80-3-811, Appeal from Order of the Superior Court of August 22, 1980, No. 267 October Term, 1979, affirming judgment of September 26, 1978 of Court of Common Pleas of Philadelphia, No. 1159 C.P. May Term, 1978
Norman A. Oshtry, Judith S. Eden, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Steven Cooperstein, Goele McLaughlin Barthold, Asst. Dist. Attys., for appellee.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Roberts, C.j., files a concurring opinion.
Appellant, Leonard Lobiondo, was convicted of simple assault and possessing an instrument of crime, following a non-jury trial in the Court of Common Pleas of Philadelphia. The court en banc granted appellant's post verdict motion for arrest of judgment with respect to the possession of an instrument conviction. However, they denied his post verdict motions with respect to the simple assault conviction. On January 8, 1979, appellant was sentenced to two years probation and ordered to pay restitution in the amount of $4,435.75, the amount of the victim's medical expenses.
On appeal, the Superior Court affirmed in a two to one decision,*fn1 Eagen, C.J., dissenting.*fn2 Although the majority held that the trial judge had incorrectly defined the standard of care to be applied, they affirmed the conviction on the grounds that there existed an otherwise proper basis for it. They also held that the order for restitution was proper. Appellant petitioned this court for review, and we granted allocatur.
Appellant was convicted of simple assault under 18 Pa.C.S.A. § 2701(a)(2). That section provides:
(a) Offense defined -- A person is guilty of assault if he:
(2) negligently causes bodily injury to another with a deadly weapon;
The question raised in this appeal is whether the trial judge applied the proper standard of care in adjudging ...