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COMMONWEALTH PENNSYLVANIA v. DONALD CUMMINGS (04/06/84)

April 6, 1984

COMMONWEALTH OF PENNSYLVANIA
v.
DONALD CUMMINGS, APPELLANT



No. 343 Philadelphia 1982, APPEAL FROM THE JUDGMENT OF SENTENCE OF JANUARY 4, 1982 IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, CRIMINAL NO. 2845/1980

Before Cirillo, Johnson and Cercone, JJ. Johnson, J., files a Memorandum Dissenting Opinion.

Per Curiam:

Judgment of sentence affirmed.

JOHNSON, J., files a Memorandum Dissenting Opinion.

JOHNSON, J.

MEMORANDUM DISSENTING OPINION:

The majority affirms appellant's conviction of simple assault*fn1 and aggravated assault.*fn2 From my review of the record, I am convinced the evidence is insufficient as a matter of law to sustain these convictions. I would therefore discharge the appellant.

A recapitulation of the facts relevant to the assault charges against the appellant, viewed in the light most favorable to the Commonwealth, as the verdict winner, are as follows. Officers Rihl and Yezzi responded to a police radio message to investigate the activities of an allegedly suspicious black man. Officer Rihl was the first to encounter a black male walking south on Richlieu Road. When questioned by the officer, the man identified himself and said he was on his way to his wife's apartment at Richlieu Garden Apartments. That man was Donald Cummings, the appellant. The appellant, when asked for identification, produced a Pennsylvania driver's license, which Officer Rihl testified properly identified him. Officer Yezzi arrived at the scene at this point.

After examining appellant's identification, Officer Rihl told appellant he was free to go. The appellant then requested a ride to the Richlieu Garden Apartments. Officer Rihl agreed to drive appellant subject to his submitting to a patdown. Appellant voluntarily consented to a patdown and placed himself in the requisite position with his hands on the police car's roof. The appellant then removed his hand from the roof, pulled his shirt tail up with his right hand, and exposed a steak knief that was tucked into his belt. Officer Rihl, who was standing on appellant's right side, yelled to Officer Yezzi, who was on appellant's left side, to warn him that the appellant possessed the knife. Appellant Cummings then pulled the knife from his pants, grabbing the handle with his thumb and forefinger, and dropped it to the ground. Officer Rihl began to step toward the appellant, and, concurrently, the appellant "swooped down and picked up the knife in his right hand." Officer Rihl does not recall to what level above the ground the appellant brought the knife, and the officer's last recollection is that it appeared the appellant was about to turn. At this moment the appellant and the two police officers were struck by an automobile.

The appellant would be culpable for the assault allegations if his actions were sufficient to constitute an attempt. The Pennsylvania Crimes Code provides: "A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime."*fn3 Therefore, the essential question for this inquiry is whether these facts constituted a substantial step in the commission of the crimes charged.

Upon reviewing the details of this tragic situation and the trial court's opinion, I must conclude that the facts, as a matter of law, cannot support the jury's conclusion that the appellant's actions evidenced criminal intent or embodied a substantial step toward an assault on either one or both of the police officers. The principal conviction involved, aggravated assault, is a serious offense and a conviction should not be allowed unless clearly warranted by the evidence. Commonwealth v. Lees, 199 Pa. Super. 383, 185 A.2d 815 (1962).

I am unable to conclude that there exists sufficient evidence to warrant the appellant's conviction.

"The test for sufficiency of the evidence is whether accepting as true all the evidence reviewed in the light most favorable to the Commonwealth, together with all reasonable inferences therefrom, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt." (citations omitted)

Commonwealth v. Lovette, 498 Pa. 665, 669, 450 A.2d 976, 977 (1982).

The facts indicate the appellant voluntarily consented to a patdown, unsolicitedly elected to reveal the steak knife the was carrying, removed it from his belt in a deliberate and non-threatening manner, dropped it, and "swooped down" to pick it up. The accepted recitation of the facts does not indicate the rose from the ground with the knife in any manner that evinced an intent to harm the police officers, nor that he took any action--other ...


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